1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, Judgment of March 23, 2021 (B 8 SO 14/19 R):
Guiding principle Dr. Manfred Hammel
: The definition of "dwelling" within the meaning of Section 42a Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII) also includes the owner-occupied home, even if it is owned by the parents, and the severely disabled applicant (degree of disability: 100; award of the marker "B") lives in the 30 square meter living area of the attic of this house in a multi-person household in accordance with Section 42a Paragraph 3 No. 1 of the German Social Code, Book XII (SGB XII).
Of decisive importance for the distinction from a shared apartment according to § 42a para. 4 SGB XII is that this disabled person does not maintain their own household completely independent from their parents' household.
Section 42a paragraph 3 of the German Social Code, Book XII (SGB XII) stipulates – in deviation from Section 35 SGB XII and the so-called per capita method – a calculation and recognition of flat-rate, notional accommodation costs according to the difference or additional expenditure method. According to this method, the need is determined, based on the reasonableness limits staggered according to the number of persons, by the difference between the abstractly reasonable expenses for the multi-person household (according to the number of persons permanently living there) and the expenses with one fewer person living there.
The decisive factor here – regardless of the actual costs incurred for accommodation – is solely the nominal difference between the abstract limits of reasonableness. Section 42a, paragraph 3 of the German Social Code, Book XII (SGB XII) mandates that social welfare agencies apply a standardized approval practice.
The reference in Section 42a Paragraph 3 No. 2 of the German Social Code, Book XII (SGB XII) to the application of Section 42a Paragraph 4 Sentence 1 of the SGB XII clarifies that in particularly justified cases, if the receiving relatives cannot fully cover the costs of accommodation and heating from their own resources, the per capita principle can be applied to prevent the emergence of shortfalls in needs.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Baden-Württemberg Judgment of 23 March 2021, L 9 AS 3091/19
Guiding principles
1. In contrast to social court proceedings, in administrative proceedings any natural person can act as an authorized representative, as long as they are capable of acting within the meaning of Section 11 of the German Social Code, Book X (SGB X).
2. The existence of a guardianship relationship does not in itself lead to the loss of legal capacity. This is only the case if the person under guardianship is also legally incapacitated.
3. If a reservation of consent (§ 1903 of the German Civil Code) has been ordered, a declaration of intent by the person under guardianship that affects the guardian's responsibilities requires the guardian's consent, unless the declaration of intent merely offers the person under guardianship a legal advantage. In this case, actions in administrative proceedings also require the guardian's consent.
Source: lrbw.juris.de
2.2 – Baden-Württemberg Higher Social Court decision of 11 March 2021, L 9 AS 233/21 ER-B
Unemployment Benefit II – Accommodation and Heating – Transitional Arrangement during the Corona Pandemic – Suspension of the Adequacy Test – Application also applies in the event of a move without an assurance from the basic income support provider upon change of jurisdiction
Guiding principles:
The provision of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), according to which the actual expenses for a period of six months are considered appropriate, covers not only new approvals but also continued approvals, even in the case of a move to the area of responsibility of another provider.
Source: lrbw.juris.de
Note from Detlef Brock, editor of Tacheles e. V.:
Regarding the interpretation of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II): 1. Social Court Heilbronn, Judgment of March 26, 2021 – S 8 AS 380/21 – Job centers must temporarily cover even unreasonable housing costs after a move during the COVID-19 pandemic; 2. Higher Social Court Munich, Decision of July 28, 2021 – L 16 AS 311/21 B ER – The deemed reasonableness provision of Section 67 Paragraph 3 Sentence 1 of the SGB II is also applicable if neither the need for assistance nor the move is directly attributable to the COVID-19 pandemic. 3. Higher Social Court Munich, Decision of April 21, 2021 – L 16 AS 129/21 B ER – A cost reduction procedure is not generally precluded during the period of validity of Section 67 of the SGB II. After the six months have expired, the general regulation of Section 22 Paragraph 1 SGB II applies again, whereby the period according to Section 67 Paragraph 3 Sentence 1 SGB II is to be credited towards the period mentioned in Section 22 Paragraph 1 Sentence 3 SGB II.
2.3 – LSG Hamburg, judgment of May 7, 2021 – L 4 AS 330/20
Legality of a repayment order issued by the benefit provider after the opening of insolvency proceedings against the assets of the person entitled to basic income support
Guiding principle
1. According to Section 41a Paragraph 6 Sentence 3 of the German Social Code, Book II (SGB II), overpaid basic income support benefits must be reimbursed upon a final determination of benefits following an initial provisional approval. (Paragraph 20)
2. The social security provider is not prevented from obtaining an enforceable title by issuing an order after insolvency proceedings have been opened against the assets of the benefit recipient. The opening of insolvency proceedings does not render existing repayment orders retroactively unlawful and subject them to cancellation. (Paragraph 21)
Source: www.hamburg.de
2.4 – LSG Hamburg, judgment of April 29, 2021 – L 4 AS 212/20 ZVW
Reimbursement of approved basic income support benefits after revocation of the approval – Limitation of parental liability for their child's debts
Guiding principle
1. If an administrative act granting basic income support benefits has been revoked, benefits already paid must be reimbursed in accordance with Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 50 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). (Paragraph 14)
2. A reimbursement order issued on the basis of Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 50 Paragraph 1 Sentence 1 of the SGB II must also be assessed in accordance with Section 1629a of the German Civil Code (BGB). According to this provision, liability for obligations incurred by parents within the scope of their legal power of representation through a legal transaction or other action with effect for the child is limited to the assets the child possesses upon reaching the age of majority. (Paragraph 16)
Source: www.hamburg.de
2.5 – LSG Saxony-Anhalt, decision of 25.05.2021 – L 2 AS 225/21 B ER
Guideline on
matters under the German Social Code, Book II (SGB II) (AS) – Exclusion of benefits for foreigners residing for the purpose of job seeking – EU citizens – other residence rights – freedom of movement – continued effect in case of involuntary unemployment – confirmation from the employment agency
Principle
1. It would be contrary to the constitutional requirement of effective legal protection (Article 19 Paragraph 4 of the Basic Law) to deviate from a supreme court ruling in social court proceedings for preliminary legal protection to the detriment of those entitled to fundamental rights and to withhold from them, on this basis, subsistence-securing benefits that they would likely be awarded in the main proceedings according to this case law.
2. If one follows the jurisprudence of the Federal Social Court (BSG) and assumes that the confirmation of involuntary unemployment by the Federal Employment Agency has constitutive significance for the right of free movement under Section 2 Paragraph 3 Sentence 2 of the Freedom of Movement Act/EU (BSG, Judgment of July 13, 2017 – B 4 AS 17/16 R – juris), then this confirmation constitutes a declaratory administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X), which can only be amended under the restrictions of Sections 44 et seq. of the SGB X. In this case, a positive determination of involuntary unemployment is binding on the job center and the courts.
Source: www.landesrecht.sachsen-anhalt.de
2.6 – Lower Saxony-Bremen State Social Court, 15th Senate, Judgment of 15 July 2021 – L 15 AS 260/20
1. As a rule, a valid request for legal protection requires that the court being contacted be informed of the residential address of the person seeking legal redress.
2. To examine the authority of a lawyer without objection from the opposing party, if the lawyer's conduct gives rise to serious doubts as to whether he has the necessary authority.
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Stuttgart, Judgment of 14 January 2021 – S 25 AS 2384/20
Assumption of employee status pursuant to Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU
The Social Court of Stuttgart dealt with questions relating to the assumption of employee status pursuant to Section 2 Paragraph 2 Number 1 of the Freedom of Movement Act/EU in the event of termination of the commenced activity due to an officially ordered closure of the business as a result of the Corona pandemic (here affirmed).
Further information: www.juris.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – SG Stuttgart, judgment of March 31, 2021 – S 3 AL 3206/18
Concept of ability to perform within the meaning of Section 145 SGB III
The Social Court of Stuttgart has ruled that the concept of ability to perform within the meaning of Section 145 of the German Social Code, Book III (SGB III) corresponds to that of incapacity for work in the Sixth Book of the German Social Code.
According to the decision of the Social Court of Stuttgart, the conditions for the fiction of objective availability are met as long as – in the case of no established reduced earning capacity – there is not “beyond doubt” that the reduction in earning capacity is only temporary, i.e., not more than six months.
Source: Press release from SG Stuttgart dated August 3, 2021
4.2 – SG Nordhausen, Judgment of 20.07.2021 – S 18 AL 101/20
Principle
1. The suspension of entitlement due to a disqualification period and the reduction of the entitlement period are independent consequences of the disqualification period. If the plaintiff is not entitled to unemployment benefits for other reasons during the disqualification period determined by the Federal Employment Agency, a claim based on the timing of the disqualification period is inadmissible.
2. If it is foreseeable that a longer entitlement to unemployment benefits may be considered in the event of a successful action for protection against dismissal, the Federal Employment Agency has a duty to provide spontaneous advice with regard to postponing the accrual of the entitlement pursuant to Section 137 Paragraph 2 of the German Social Code, Book III (SGB III), if no benefits are paid anyway due to a waiting period until the more favorable accrual of the entitlement is foreseeable pursuant to Section 137 Paragraph 2 of the German Social Code, Book III (SGB III). The plaintiff may be favored by the social security restitution claim if the determination of the reference period is still possible because the receipt of benefits has not yet commenced by the date to be determined pursuant to Section 137 Paragraph 2 of the German Social Code, Book III (following the Federal Social Court's judgment of June 3, 2004, B 11 AL 70/03 R, SozR 4-4300 § 123 No. 2; distinguishing it from the Federal Social Court's judgment of December 11, 2014, B 11 AL 2/14 R, SozR 4-4300 § 124 No. 6).
Source: landesrecht.thueringen.de
4.3 – Baden-Württemberg Higher Social Court decision of 29 June 2021, L 8 AL 1560/21 ER-B
Guiding Principles:
The entitlement to unemployment benefits is suspended as long as a full disability pension is granted, regardless of any further interpretation of the Federal Employment Agency's technical instructions. The German Pension Insurance (DRV) pension award has binding effect for the Federal Employment Agency and cannot, in principle, be reviewed by the latter for its substantive legal correctness.
Source: lrbw.juris.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – Lower Saxony-Bremen State Social Court, 8th Senate, Judgment of 24 June 2021 – L 8 SO 50/18
Regarding the entitlement to assistance in overcoming particular social difficulties during incarceration (here: assumption of rental costs).
1. The threat of losing one's home after release from prison generally falls under the category of "special circumstances involving social difficulties" within the meaning of Section 67 of the German Social Code, Book XII (SGB XII). The necessity of financial assistance to prevent homelessness depends on a predictive assessment of the expected situation upon release from prison (see Federal Social Court [BSG] judgment of December 12, 2013 – B 8 SO 24/12 R – juris para. 16 et seq.).
2. Section 4 paragraph 2 of the Regulation on the Implementation of Assistance to Overcome Special Social Difficulties (juris: BSHG§72DV 2001) is to be understood as a reference to legal consequences and not as a reference to the legal basis (cf. LSG North Rhine-Westphalia of 30.06.2005 – L 20 B 2/05 SO ER – juris Rn. 7; Bavarian LSG of 17.09.2009 – L 18 SO 111/09 B ER – juris Rn. 23).
3. The distinction between debts and current benefits under Section 35 of the German Social Code, Book XII (SGB XII) is to be made according to whether it is a need that actually arose at the time the social assistance provider became aware (cf. Section 18 Paragraph 1 SGB XII) of the need for further securing of accommodation in the past and which has not yet been covered by the social assistance provider (Federal Social Court, judgment of 12 December 2013 – B 8 SO 24/12 R – juris Rn. 21).
4. The accommodation costs incurred during detention may include not only the rent due for that period, but (exceptionally) also the court and legal fees necessary to prevent the loss of housing in an eviction lawsuit (as a one-off expense), if these are directly attributable to the unlawful refusal of benefits by the benefit provider (following Bavarian State Social Court decision of January 30, 2014 – L 7 AS 676/13 – juris para. 25; Baden-Württemberg State Social Court decision of June 27, 2017 – L 9 AS 1742/14 – juris para. 56).
Source: www.rechtsprachung.niedersachsen.de
Note:
Rent payment as social assistance for prisoners
The LSG Celle-Bremen has ruled that in certain cases the rent of a prisoner must be covered by the social welfare office.
Further information: www.juris.de
See also the guiding principle of Dr. Manfred Hammel
LSG Lower Saxony-Bremen, Judgment of June 24, 2021 (L 8 SO 50/18):
Guiding principle by Dr. Manfred Hammel:
On the affirmation of the claim to reimbursement of the costs of the previous, appropriate accommodation for the period of slightly more than seven months of imprisonment and to prevent the emergence of homelessness in accordance with Sections 67 et seq. of the German Social Code, Book XII (SGB XII) as a mandatory benefit of social assistance.
In principle, the threatened loss of housing due to serving a prison sentence falls under the category of "special living conditions with social difficulties" within the meaning of Section 67 Sentence 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 1 of the Implementing Regulation to Section 69 of the German Social Code, Book XII (DVO).
The loss of an apartment is significantly harder to compensate for a person released from prison than for other people in need.
Preventive services to maintain adequate accommodation for the period following deprivation of liberty can be claimed on the basis of Section 15 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 68 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII).
This applies particularly when an applicant, in order to prevent a potential worsening of their social difficulties after release from prison, should find stable living conditions with regard to their housing situation and also taking into account their multimorbidity, when they have already occupied their current apartment for almost ten years, when the period of imprisonment amounts to little more than seven months, and when vacating the current apartment and renting a completely new one would incur considerable costs. A social welfare agency may not categorically state that Sections 67 et seq. of the German Social Code, Book XII (SGB XII) cannot be applied in any way because the period of imprisonment exceeds six months and the applicant is under legal guardianship (Sections 1896 et seq. of the German Civil Code (BGB)).
A claim for benefits based on Section 67 Sentence 1 of the German Social Code, Book XII (SGB XII), in conjunction with Section 68 Paragraph 1 Sentence 1 SGB XII, Section 4 Paragraph 2 of the Implementing Ordinance to Section 69 SGB XII, and Section 35 SGB XII, is aimed at covering the costs of the previous rented apartment incurred during the period of detention, without the social welfare agency having to examine the prerequisites for debt assumption pursuant to Section 36 SGB XII, nor does the assumption of accommodation costs require that the applicant actually reside in this suitable living space. This is an atypical case where the social welfare office was informed of this special need in a timely and sufficient manner before the rent arrears accumulated.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – SG Stuttgart, decision of 30.06.2021 – S 20 AY 2011/21 ER
The provision of assistance by third parties in anticipation of expected benefits from the social welfare provider does not eliminate the need for assistance
Emergency services provided in church asylum using donated funds do not constitute alternative coverage of needs within the meaning of Section 8 of the Asylum Seekers' Benefits Act (AsylbLG). This is because the provision of assistance by third parties in anticipation of expected benefits from the social welfare agency does not eliminate the need for assistance.
Further information: www.juris.de
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Higher Administrative Court of Saxony, decision of July 23, 2021 (3 D 1/21):
Guiding principle Dr. Manfred Hammel
: The granting of a rent subsidy in accordance with § 1 para. 1 WoGG in conjunction with § 3 para. 1 WoGG is intended to ensure that needy persons have adequate housing in their own home.
A key requirement for receiving this benefit is that the applicant must actually make rent payments. If necessary, this must be proven to the housing benefit office as part of the general obligation to cooperate (§ 60 para. 1 sentence 1 no. 1 SGB I).
In the case of a so-called relative tenancy, the mere submission of the tenancy agreement is not considered sufficient.
It is not an inadmissible infringement of the fundamental right to informational self-determination (Article 1, paragraphs 1 and 2, paragraph 1 of the German Basic Law) if a social welfare agency accesses the bank statements of applicants for the last three months to verify eligibility, provided that knowledge of this data is necessary for the public authority collecting it to fulfill its duties (Section 67a, paragraph 1 of the German Social Code, Book X). This applies particularly when a housing benefit office not only had to verify the actual payment of rent, but also had to question the applicant's need for assistance based on an assessed income shortfall, and the applicant's true financial circumstances were not established.
7.2 – Note on: BSG 11th Senate, Judgment of 04.03.2021 – B 11 AL 7/19 R
Author: Dr. Michael E. Reichel, Judge at the Higher Regional Court
Regarding the compulsory insurance for retraining and vocational training programs
Guiding principle regarding the note:
Retraining relationships according to §§ 58 ff. BBiG are not vocational training relationships triggering compulsory insurance within the meaning of § 25 para. 1 sentence 2 SGB III.
Further information: www.juris.de
7.3 – Social Law Information August 2021
Bernd Eckhardt, Nuremberg:
“There’s often a lull in social welfare law during the summer months, with little new to report in August. This time is different. There are several important issues for advice centers. The problem with the ‘child leisure bonus’ is forcing affected households receiving benefits under Book II of the German Social Code (SGB II) to take action even in August 2021. The issues are:
A systematic error in the Federal Employment Agency's "KiZ Navigator" (child supplement navigator) leads in some cases to incorrect information stating that no entitlement exists, even though this is not the case. Many single parents have been misinformed, and also incorrectly advised by counseling centers that use the KiZ Navigator. A retroactive application is possible in these cases via the social welfare restitution claim.
The "children's leisure bonus" for August 2021 also presents problems: Children who are not in need but only have the minimum subsistence level under social law will not receive the bonus. In many cases, "child housing benefit" helps, but this must be applied for in August 2021!
There are a few positive legal changes coming into effect in July 2021 regarding the crediting of income under SGB II/SGB XII
More information: sozialrecht-justament.de
7.4 – Attorney Volker Gerloff:
Study commissioned by the Ministry of Food shows: It is not possible to eat a healthy diet on the standard allowance!
Especially among 15-18 year olds, there is a shortfall in nutritional needs of up to 44%.
Details here (summary on page 148 in the box):
continue: twitter.com
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
