1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – Federal Social Court, judgment of 27 January 2021 (B 14 AS 42/19 R):
Guiding principle Dr. Manfred Hammel:
A right of residence pursuant to Art. 10 of Regulation (EU) No. 492/2011 precludes an exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2b) of the German Social Code, Book II (SGB II).
The right to equal treatment of children of nationals of EU member states who are (or have been) employed in Germany, provided they also reside in Germany, to participate in general education under the same conditions as nationals of the EU member state of residence, grants both the children and the parents caring for them a material right of residence.
This right, which is linked to a parent's employee status, extends beyond the period of employment.
This also applies to a marginal employment lasting only two months with a monthly remuneration of EUR 500,- in Germany, if the child attended school in Germany during this time.
1.2 – Federal Social Court, judgment of January 27, 2021 (B 14 AS 35/19 R):
Guiding principle Dr. Manfred Hammel:
In the case of adults, situations are conceivable in which an apartment does not constitute the center of life in terms of time, but the use of this accommodation nevertheless serves to cover a currently existing accommodation need, and therefore justifies the approval of only per capita accommodation costs in accordance with Section 22 Paragraph 1 Sentence 1 SGB II for co-residents entitled to benefits under the SGB II.
In the case of boarding school accommodation for the adult daughter of a needy mother and main tenant, as well as temporary use of this parental apartment when the mother returns from vocational rehabilitation on weekends and during holidays, further joint use of this apartment by both persons cannot be ruled out.
The decisive factor here is the specific nature of the individual case.
It is sufficient if the adult daughter regularly uses the parental home for residential purposes.
In this case, the "basic need for housing" is also met at least temporarily in this apartment as a "roommate", regardless of whether this apartment is actually the center of life for this adult person.
Important factors in assessing whether shared residential use exists include the duration and frequency of the adult daughter's stay in her mother's apartment, the operating hours of the boarding school offering temporary accommodation, the furnishings, size and number of residents in the boarding school room, whether the daughter's furniture was left in the mother's apartment or moved to the boarding school, and how the mother used her daughter's room during her absence.
Of particular importance here is the aspect of internal balance between the people living in an apartment.
1.3 – Social assistance is not subordinate to housing benefit II – Full text of the judgment B 8 SO 2/20 R – An article by attorney Kay Füßlein
When requesting that individuals apply for housing benefit instead of benefits under the German Social Code, Book XII (SGB XII), the authorities have so far relied on Section 2 of the SGB XII. The underlying reason, however, is that if housing benefit is received, certain other benefits (such as exemptions from co-payments, social tickets, and broadcasting fees) are either initially forfeited or require a more complex application process. This has resulted in situations where, despite the higher housing benefit payment, individuals ultimately had less money at the end of the month.
The question was whether this constitutes a sound legal basis for denying basic income support. After all, the German Social Code, Book II (SGB II), explicitly stipulates when housing benefit can and cannot be applied for – the German Social Code, Book XII (SGB XII), does not.
In its ruling of March 23, 2021, the Federal Social Court states briefly and concisely:
“…however, the Senate answers the question that has so far been left open by stating that Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII) does not generally constitute an exclusion provision.”
This confirms that there is a right to choose between benefits under the German Social Code Book XII (SGB XII) and housing benefit.
Note:
Due to various housing benefit reforms in recent years, it is possible that even if certain subsidies are eliminated, you will end up with more money in your pocket (although housing benefit does not cover, for example, utility bill arrears). Therefore, you should always check the actual amount of housing benefit you are entitled to beforehand.
Federal Social Court (BSG) Judgment of 23 March 2021 - B 8 SO 2/20 R
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of April 22, 2021 – L 32 AS 588/16
Absence from place of residence – employed person – income – provisional approval – final decision
Guidance (Editor):
Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) is to be interpreted in a constitutionally compliant and reductive manner, in accordance with the purposes of the regulation (see in particular Section 2 Paragraph 2 SGB II), such that an exclusion from benefits does not occur for employed persons (i.e., not unemployed persons or job seekers) whose need for assistance is based solely on the horizontal distribution of income pursuant to Section 9 Paragraph 2 SGB II (Federal Social Court, Judgment of November 7, 2006, B 7b AS 8/06 R).
Principle (Juris):
Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) is to be interpreted teleologically and restrictively in such a way that an exclusion from benefits does not occur for employed persons whose need for assistance is based solely on the horizontal distribution of income according to Section 9 Paragraph 2 of the SGB II, because there is already no obligation to announce an absence from the place of residence.
Source: gesetze.berlin.de
2.2 – LSG Berlin-Brandenburg, judgment of January 13, 2021 – L 14 AS 1391/17
Basic income support for the unemployed – residential facility – mother-father-child housing – additional needs allowance for single parents – inadmissible appeal – lack of proof of power of attorney in the appeal proceedings
Principle
1. A youth welfare institution that offers accommodation to young mothers/fathers with children under 6 years of age and provides comprehensive support in the care and upbringing of the child can be a residential facility within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II).
2. It remains open whether an objection – without the possibility of rectification in judicial proceedings – is to be rejected as inadmissible solely because proof of authorization requested by the authority is not submitted in a timely manner.
Source: gerichtsverkauf.brandenburg.de
2.3 – Schleswig-Holstein Higher Social Court, decision of 06.05.2021 – L 6 AS 66/21 B ER, L 6 AS 61/21 B PKH
Principle
regarding the grounds for an order in the case of a laptop already purchased and payment of the purchase price in installments
Source: www.gesetze-rechtsprachung.sh.juris.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Bremen Social Court, decision of May 20, 2021 (S 26 AS 1257/20):
Principle by Dr. Manfred Hammel:
A job center can refuse to pay out monetary benefits in accordance with Sections 19 et seq. of the German Social Code, Book II (SGB II) via an account held at a British bank by a person entitled to benefits in accordance with Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
Following the UK's withdrawal from the EU, Section 42 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) no longer applies.
Changing bank account details from a financial institution not located in the EU to a financial institution located in the EU constitutes a significant change in the actual circumstances of a benefit recipient associated with that applicant.
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Munich, decision of 10 May 2021 – L 10 AL 61/21 B ER
Title:
Reimbursement of social security contributions during the receipt of short-time work compensation after application for the opening of insolvency proceedings
Guiding Principles:
1. The reimbursement of social security contributions pursuant to Section 2 Paragraph 1 of the Short-Time Work Compensation Ordinance (KugV) is not at the discretion of the Federal Employment Agency (BA). While short-time work compensation pursuant to Section 95 of the German Social Code, Book III (SGB III) and the associated reimbursement of social security contributions are indeed active labor market policy measures (Section 3 Paragraph 2 SGB III), which are generally discretionary benefits (Section 3 Paragraph 3 SGB III), this explicitly excludes short-time work compensation in cases of work stoppage (Section 3 Paragraph 3 No. 5 SGB III). Consequently, the reimbursement of social security contributions pursuant to Section 2 Paragraph 1 KugV is also excluded. According to the legislative authorization in Section 109 Paragraph 5 No. 3 SGB III and its implementation in Section 2 Paragraph 1 KugV, this reimbursement is ancillary to the entitlement to short-time work compensation. (Paragraph 24) (Editorial note: Claus-Peter Bienert)
2. According to the legislator's intent, which likely also underlies the regulation in Section 2 Paragraph 1 of the Short-Time Work Compensation Ordinance (KugV), created by virtue of the power to issue regulations, the reimbursement of social security contributions is intended to relieve employers of a large portion of the individual costs of continuing to employ their workforce. The ultimate goal of the Federal Employment Agency's (BA) reimbursement of social security contributions is therefore to preserve the jobs of individual employees receiving short-time work compensation. The means to achieve this, however, is to temporarily relieve employers of the burdens arising from the obligation to continue paying social security contributions. A side effect of this is that liquidity that would otherwise flow to the social security institutions ultimately remains with the employer. (Paragraph 27) (Editorial note: Claus-Peter Bienert)
3. According to Section 333 Paragraph 3 No. 1 of the German Social Code, Book III (SGB III), the Federal Employment Agency (BA) "may" offset claims for reimbursement, including of refunded social security contributions for recipients of short-time work compensation that were paid provisionally, against claims for short-time work compensation, including payments advanced by the employer. The very decision of whether or not to offset is a discretionary one; the justification for the offset, which in this case was carried out by way of an administrative act, must then, according to Section 35 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X), reveal the considerations on which the agency based its discretion. The amount of the offset (the "how" of the offset) also requires such an exercise of discretion. (Paragraph 28) (Editorial note: Claus-Peter Bienert)
4. In proceedings concerning the reimbursement of social security contributions as a supplementary benefit to short-time work compensation, the employer also asserts the rights of the employees by way of procedural representation, with the consequence that Section 193 of the Social Court Act (SGG) is applicable. (Paragraph 34) (Editorial note: Claus-Peter Bienert)
Source: www.gesetze-bayern.de
4.2 – SG Nordhausen, Judgment of 20.04.2021 – S 18 AL 615/19
Regarding the application of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) – entitlement to unemployment benefits – personal registration as unemployed – retroactive effect in case of lack of willingness to work
Principle (Editor):
If the responsible employment agency is not available on the first day of the unemployed person's unemployment, a personal registration on the next day on which the employment agency is available is retroactive to the day on which the employment agency was not available (contrary to SG Berlin, judgment of 21 January 2020 – S 120 AL 207/18).
Guidance (Editor)
1. The case of retroactive effect of unemployment registration when unemployment occurs on a day when the employment agency is unavailable, if unemployment already existed beforehand, is not regulated by law (see above a.). This gap, however, is unintended.
2. The purpose of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) does not require limiting the possibility of retroactive registration to cases of employment up to and including the day before the absence of availability for work. Rather, an extension must be made, at least for cases of absence of availability for work on the first day of unemployment, in which previous employment, but not unemployment, was based on incapacity for work. It is not in accordance with general experience that a person incapacitated for work would not be prevented, due to illness, from personally registering as unemployed on the last day of their incapacity, with effect for the next calendar day (contrary to the ruling of the Berlin Social Court, judgment of January 21, 2020 – S 120 AL 207/18).
Source: www.landesrecht.thueringen.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Munich, Judgment of 18 May 2021 – L 8 AY 122/20 – Appeal allowed
Title:
Benefits, decision, deportation, asylum application, asylum procedure, accommodation, benefit award, approval, entry, asylum recognition, reimbursement of costs, wages, obligation to leave the country, interpretation, Federal Republic of Germany, constitutionally compliant interpretation, meaning and purpose
Principle (Juris)
1. The transitional provision of § 15 AsylbLG is not only applicable with regard to the extension of the waiting period.
2. As an unwritten requirement of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, actual "mutual support" is required.
Source: www.gesetze-bayern.de
5.2 – Social Court Halle, decision of February 26, 2021 (S 17 AY 31/20 ER):
Guiding principle Dr. Manfred Hammel:
The application of needs level 2 according to § 3 para. 1 no. 2b) or para. 2 no. 2b) AsylbLG to an adult, single person entitled to benefits according to § 1 para. 1 AsylbLG solely due to communal accommodation in a special facility according to the AsylG is to be critically examined.
A general (percentage) derivation of the needs to secure the necessary livelihood presupposes a family-based living and economic community as a starting point for economic legal consequences.
However, when determining the amount of money for eligible persons who are housed in collective accommodations, the legislator cannot prove the actual need using a transparent procedure.
Reduced benefit rates are only justifiable if it is proven that several eligible persons live together in a shared household within such accommodation.
The authority responsible for implementing the Asylum Seekers' Benefits Act (AsylbLG) must comply with its objective burden of proof and presentation.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – People without means may choose social assistance instead of housing benefit, an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
6.2 – Note on: Federal Administrative Court, First Senate, Judgment of 26 January 2021 – 1 C 42/20
Author: Prof. Dr. Uwe Dietmar Berlit, VRiBVerwG
Extension of the Dublin III transfer deadline due to the asylum seeker's absconding status
Guiding Principles
1. If the Federal Office for Migration and Refugees knows the whereabouts of an asylum seeker who is in so-called open church asylum, it can no longer consider him/her to be absconding within the meaning of Article 29(2), second sentence, alternative 2 of the Dublin III Regulation and therefore cannot extend the deadline for transfer to the responsible Member State to 18 months.
2. This also applies if the applicant was previously in covert church asylum within the six-month transfer period (Art. 29 para. 1 Dublin III Regulation), but the Federal Office became aware of his whereabouts before the extension decision was issued.
Source: www.juris.de
Editor's note:
Due to server maintenance, the website www.sozialgerichtsbarkeit.de currently unavailable.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker tacheles-sozialhilfe.de
