1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court (BSG), Judgment of 21 July 2021 – B 14 AS 29/20 R
Basic income support for job seekers – income calculation – tax deduction – trainer's allowance
Guiding principle (editor of Tacheles e. V.):
Job centers must grant higher Hartz IV allowances for charitable activities.
Guidance (Editor of Tacheles e. V.)
1. A prerequisite for taking into account the increased basic allowance for income pursuant to Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II), is that the plaintiff earns income from at least one activity that is tax-exempt pursuant to Section 3 No. 26 of the German Income Tax Act. This requires, among other things, a secondary occupation as an instructor on behalf of an institution falling under Section 5 Paragraph 1 No. 9 of the German Corporation Tax Act, as well as the performance of this activity for the promotion of charitable purposes.
2. According to established tax law, the assessment of whether an activity qualifies as secondary employment requires that the time spent on the activity does not exceed one-third of the working hours of a comparable full-time employee. The relevant period for this assessment is generally the tax assessment period. When several similar activities are performed, as is the case with the plaintiff's work as a trainer in the fitness studio and as an instructor for the club, both activities must be considered in a comprehensive evaluation.
3. Insofar as Section 3 No. 26 of the Income Tax Act further requires that the activity itself also serves the promotion of charitable purposes, the same applies within the scope of application of Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II). This provision is also based on the idea of privileging voluntary ("selfless") activities through higher tax deductions. Contrary to the defendant's assertion, this does not only cover activities performed on a voluntary basis, as the legislative history and the purpose of the provisions demonstrate.
4. However, if the activity is carried out within the framework of fulfilling the statutory purposes of an institution that is tax-exempt due to the promotion of, among other things, charitable purposes, it is generally to be assumed that the activity also serves the promotion of these tax-privileged purposes, unless – as in this case – there are specific indications for a different assessment.
Source: www.bsg.bund.de
Note:
Unemployed recipients of Hartz IV benefits with additional income from non-profit activities can claim a monthly allowance of €250 from the job center. This can apply even if the recipient of unemployment benefit II works as a trainer for a club and also as a sports instructor for a fitness studio and earns income from this.
More information: www.evangelisch.de
1.2 – BSG, judgment of July 21, 2021 – B 14 AS 18/20 R
Basic income support for job seekers – municipal integration services – debt counselling
Guiding principle (editor of Tacheles e. V.):
Job centers must pay for debt counselling for people in need to make it easier for them to find work.
Guidance (Editor of Tacheles e. V.):
Debt counseling as a municipal integration service can be provided to achieve holistic and comprehensive support and assistance with integration into the workforce if it is necessary for this purpose. The necessity, as defined in Section 16a No. 2 of the German Social Code, Book II (SGB II), is not to be interpreted restrictively as meaning that the provision of services is only considered if employment is expected to follow immediately or only if it represents the sole possibility for integration into the workforce. It can also be necessary if it merely prepares for or provides supplementary support for taking up employment by addressing motivational problems and stabilizing the individuals concerned. Nevertheless, it does not lose its ultimate connection to the overarching goal of integrating the eligible person into the workforce.
Source: www.bsg.bund.de
Note:
Job centers must also consider the debt situation of Hartz IV recipients when placing them in the labor market. If high debt poses an obstacle to integration into the labor market, the agency may be obligated to cover the costs of debt counselling.
More information: www.evangelisch.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG NRW, Decision of 17.06.2021 – L 7 AS 587/21 NZB
No grant will be awarded for a student desk, desk chair and shelf.
Guiding principle (Editor of Tacheles e. V.):
1. It is reasonable and socially acceptable for the plaintiff to complete her schoolwork at the living room or dining table. This is also possible given the apartment's floor plan and the submitted photographs. A shelf is already in place.
2. The Berlin Social Court, in its judgment of February 15, 2012 (S 174 AS 28285/11), affirmed a right to a student's own desk only if "no other space is available in the apartment" (cf. in this context also (Aachen Social Court judgment of January 9, 2007 – S 11 AS 96/06)). The fact that (rare) situations are conceivable in individual cases where, exceptionally, a separate desk/desk chair is needed for (primary) school students does not establish the fundamental importance of the present legal case.
Source: www.justiz.nrw.de
2.2 – Saxon State Social Court, decision of 29 March 2021 – L 3 AS 241/21 B ER
Unemployment benefit II – Special needs – Initial furnishing of an apartment – Dishwasher – Loan for unavoidable one-off needs covered by the standard allowance – Interpretation of the concept of unavoidability
Principle
1. A dishwasher or automatic dishwasher is only considered part of the reasonable household equipment needs within the meaning of Section 24 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book II (SGB II), if none of the household members is able to manage the household in the required manner and a dishwasher facilitates household management to such a considerable extent that the continuation of the household is made possible. (Paragraph 31)
2. For the interpretation of the element of unavoidable need in Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), reference can be made to the legal definition in Section 21 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II). (Paragraph 39)
Source: Juris
2.3 – LSG Berlin-Brandenburg, judgment of June 23, 2021 – L 18 AS 998/18 WA
Basic income support for job seekers – sanctions – integration administrative act – invalidity – review procedure
Guidance (Editor of Tacheles e. V.)
1. The integration administrative act is initially flawed insofar as it requires the plaintiff to submit at least ten job applications per month for employment subject to social security contributions, without any corresponding reimbursement of application costs by the defendant. The reciprocal obligations are therefore not in a balanced relationship (cf. Federal Social Court, Judgment of June 23, 2016 – B 14 AS 30/15 R).
2. Furthermore, although the integration administrative act of June 25, 2014, specifies a period of validity until December 31, 2014, it does not mention any occasions or points in time for joint review during the term of the agreement (cf. regarding this requirement, adhering to its case law on the legal situation applicable before August 1, 2016, BSG, judgment of March 21, 2019 – B 14 AS 28/18 R; similarly, for example, LSG Berlin-Brandenburg, judgment of February 19, 2020 – L 18 AS 1421/19).
Source: gesetze.berlin.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Magdeburg, judgment of June 25, 2021 – S 14 AS 965/17
Principle
1. The concept of the Jobcenter Salzlandkreis is still not to be considered conclusive, even beyond 01.01.2017 (contrary to the judgment of the 5th Senate of the State Social Court of Saxony-Anhalt of 15.04.2021 (L 5 AS 526/16)).
2. Any ambiguities that are material to the decision within the framework of a coherent concept are regularly to the detriment of the defendant job center. The plaintiffs bear no burden of proof in this regard.
3. The requirements for creating a coherent concept, with regard to the affected subsistence benefits, and at least with regard to the age of the existing rents used, must not be lower than those for creating a qualified rent index.
Source: www.landesrecht.sachsen-anhalt.de
3.2 – SG Nordhausen, Judgment of 08.06.2021 – S 13 AS 1134/20
Principle
1. Disclosing the name and address of a recipient of basic income support to a potential employer constitutes permissible processing of social data within the meaning of transmission.
2. Inquiring with a potential employer as to whether the proposed applicant has applied constitutes permissible processing of social data within the meaning of data collection.
Source: www.landesrecht.thueringen.de
3.3 – SG Nordhausen, Judgment of 08.06.2021 – S 13 AS 29/19
Principle
1. The obligation under Section 58 Paragraph 2 of the German Social Code, Book II (SGB II), to submit the form prescribed for the certification of remuneration to the employer without delay, is subject to the data protection law concept of necessity and purpose limitation.
2. The form “Income Certificate – Proof of the Amount of Remuneration –” issued by the Federal Employment Agency, dated 04/2018, is not objectionable.
Source: www.landesrecht.thueringen.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – SG Gießen, Judgment of 12.07.2021 – S 14 AL 81/21
AL – Employment Promotion Law
Principle
1. Conduct contrary to insurance regulations exists if the unemployed person, when arranging a job interview, indicates that he intends to become self-employed in 3 to 4 months.
2. In this context, the decisive factor for the existence of an important reason is whether and to what extent the unemployed person has already taken concrete steps towards self-employment, also in terms of timing.
3. There is no obligation to proactively disclose the possibility of leaving employment again in the near future during the application process. Rather, the unemployed person has a duty to conduct themselves in such a way as to secure employment subject to social security contributions as soon as possible.
Source: www.rv.hessenrecht.hessen.de
4.2 – Lower Saxony-Bremen State Social Court, Judgment of 23 June 2021 – L 11 AL 95/19
1. Effective notification of legal consequences in the case of a waiting period for refusal of employment (§ 159 para. 1 sentence 2 no. 2 SGB III) requires – just as notification of legal consequences in the case of a sanction pursuant to § 31 para. 1 sentence 1 SGB II (cf. in this regard: BSG, judgment of 18 February 2010 – B 14 AS 53/08 R -) – notification also about the commencement of the threatened waiting period (see also: LSG Lower Saxony-Bremen, decision of 8 May 2018 – L 11 AL 67/16 NZB -).
2. A general reference to the “Information Sheet 1 for the Unemployed – Your Rights – Your Obligations” is not sufficient (following BSG, judgment of December 10, 1981 – 7 RAr 24/81 –), especially if the information sheet handed to the unemployed person contains no information at all about the start of a waiting period in case of refusal of work.
Source: www.rechtsprachung.niedersachsen.de
5. Decisions of the State Social Courts on the Child Supplement
5.1 – LSG Munich, Judgment of 10 May 2021 – L 7 BK 2/21
Child supplement – interest according to § 44 SGB I
Principle:
The back payment of child supplement is subject to interest at a rate of 4 percent under the conditions of § 44 SGB I.
Source: www.gesetze-bayern.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Exclusion from health insurance for non-working EU citizens is probably contrary to EU law
More information: www.ggua.de
6.2 – Higher Administrative Court of Saxony, decision of June 9, 2021 (3 A 133/20):
Guiding principle Dr. Manfred Hammel:
For the decision on the granting of housing benefit, the information required to determine the annual income and the burden of liabilities of self-employed persons is also relevant within the meaning of Section 60 Paragraph 1 Sentence 1 No. 1 SGB I.
In administrative proceedings, an applicant must always provide sufficiently substantiated information regarding their personal and financial circumstances. This also applies to capital gains realized through currency transactions during the period relevant for the grant decision (§ 25 para. 1 sentence 1 WoGG).
If the prerequisites for the asserted housing benefit claim cannot be determined by either the authority (§ 20 SGB X) or the administrative court (§ 86 VwGO), then this is to the detriment of the rights of the applicant who is deriving them from the rules of the burden of proof.
6.3 – Entitlement to domestic help during inpatient rehabilitation
If an insured person is unable to manage their household due to medical rehabilitation, they will receive domestic help. This applies if no other person living in the household can manage it and if there is a child living in the household who has not yet reached the age of twelve at the start of the domestic help or who is disabled and dependent on assistance. Household management also applies if spouses share these responsibilities. The time of day at which household tasks are performed is irrelevant.
Further information: www.juris.de
6.4 – Working aid: Advising EU citizens – Freedom of movement rights in family situations
More information: www.der-paritaetische.de
6.5 – Brochure: Practical guide for EU workers in Germany – A guide to good working conditions and equal treatment
The EU Equal Treatment Office and the Berlin Advice Centre for Migration and Good Work (BEMA) have jointly developed a practical guide with case studies, which is now available for download.
Source: www.eu-gleichverfahrensstelle.de
Editor's note:
Due to server maintenance, the website www.sozialgerichtsbarkeit.de currently unavailable.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
