1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of May 19, 2021 (B 14 AS 57/19 R):
Guiding principle Dr. Manfred Hammel
: Section 22 Paragraph 1 Sentences 1 and 3 of the German Social Code, Book II (SGB II) stipulates not only an obligation for applicants to reduce unreasonably high costs for accommodation and heating, but also the implementation of a cost reduction procedure by the job center, thereby enabling employable benefit recipients (Section 7 Paragraph 1 Sentence 1 SGB II) to comply with this obligation as instructed.
This also applies to heating costs, both according to the wording of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), and according to the meaning and purpose of this regulation.
The SGB II provider must always clearly state which heating costs it considers appropriate within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II: A need item that concerns the basic housing and living situation of a person.
The application of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) must not be limited to cases in which unreasonably high heating costs are attributable to an unreasonably large living space. The reason for the unreasonableness of these expenses is always of decisive importance.
It is entirely possible that an inappropriately large apartment is occupied, but due to economical heating practices or an above-average energy difference of this property, the accommodation can still be heated at costs that can be considered reasonable.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Schleswig-Holstein State Social Court, Judgment of 23 October 2020 – L 3 AS 133/18 – pending before the Federal Social Court – B 4 AS 24/21 R
Basic income support for job seekers – consideration and calculation of income – multiple advance or partial payments from one employment relationship and month – no multiple deduction of earned income allowances
Regarding the (multiple) deduction of the basic and earned income allowance pursuant to Section 11b of the German Social Code, Book II (SGB II), when earned income from an employment relationship and month is received through advance or partial payments and final payments over several months, the court here denies this, contrary to the ruling of the Higher Social Court of Baden-Württemberg, judgment of January 18, 2017 – L 2 AS 3148/16
Guiding principle of Detlef Brock, editor of Tacheles e. V.:
The decision of the Baden-Württemberg State Social Court of January 18, 2017 (- L 2 AS 3148/16 -) cannot be followed. According to this decision, an advance payment received in the month prior to the due date in the form of a net amount must be grossed up and – if no further income from the employment relationship is received in the month of payment – adjusted by the basic allowance, or at least by the earned income allowance – calculated on the gross amount of the advance payment. The remaining payment in the month of due date, less the advance payment (gross salary received less gross advance payment), must then be adjusted by the basic allowance and the earned income allowance.
Source: openjur.de
2.2 – LSG Bayern, decision of 14.07.2021 – L 16 AS 308/21 B ER
Title:
On the examination of habitual residence in the Federal Republic of Germany within the framework of preliminary legal protection proceedings.
Guiding principles:
1. An application for the issuance of a preliminary injunction pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG) lacks the need for legal protection if the benefits provisionally suspended pursuant to Section 331 of the German Social Code, Book III (SGB III) have subsequently been paid out.
2. Benefits under the German Social Code, Book II (SGB II) are not granted to anyone who does not have their habitual residence in the Federal Republic of Germany. The burden of proof for demonstrating that they have their habitual residence in the Federal Republic of Germany lies with the claimant.
3. The place of habitual residence pursuant to Section 7 Paragraph 1 Sentence 1 Number 4 of the German Social Code, Book II (SGB II) in conjunction with Section 30 Paragraph 3 Sentence 2 of the German Social Code, Book I (SGB I) must be examined by means of a prospective assessment. The prognosis must take into account all circumstances related to the residence, which may be subjective, objective, factual, and legal.
Source: www.gesetze-bayern.de
2.3 – LSG Bayern, decision of 21.04.2021 – L 16 AS 129/21 B ER
Title:
On the fiction of reasonableness of actually unreasonable costs of accommodation and heating in the context of an expedited procedure, if in the preceding approval period a binding reduction of the accommodation costs to the reasonable limit has taken place within the framework of a provisional approval.
Guiding principles:
1. The provision of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) also applies if the need for assistance arose independently of the Corona pandemic. It applies not only to initial approvals but also covers the renewal periods beginning within the period specified in Section 67 Paragraph 1 of the SGB II.
2. A cost-reduction procedure is not generally excluded during the period of validity of Section 67 of the German Social Code, Book II (SGB II). After the expiry of six months, the general provision of Section 22 Paragraph 1 of the SGB II applies again, whereby the period according to Section 67 Paragraph 3 Sentence 1 of the SGB II is to be credited towards the period specified in Section 22 Paragraph 1 Sentence 3 of the SGB II.
3. The application of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is not excluded by Section 67 Paragraph 3 Sentence 3 of the SGB II if, after a binding reduction of the costs of accommodation to the reasonable limit for only one month in the preceding benefit period, the person in need of assistance can still apply for a final determination pursuant to Section 41a of the SGB II and the conditions for a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X) are clearly met.
Source: www.gesetze-bayern.de
2.4 – LSG Bayern, decision of 28.07.2021 – L 16 AS 311/21 B ER
Title:
On the deemed appropriateness of accommodation and heating costs after a move in the context of expedited proceedings.
Guiding principles:
1. The fiction of appropriateness under Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is also applicable if neither the need for assistance nor the relocation is directly attributable to the Corona pandemic.
2. Actual income from a sublease directly reduces the main tenant's need for actual accommodation and heating costs (§ 22 para. 1 sentence 1 SGB II).
3. After a move, a cap on a previously recognized need for accommodation and heating costs pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not apply if the scope of application of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is opened.
4. The urgency required for issuing an interim injunction is generally present if the benefit provider wrongfully denies benefits for ongoing costs of accommodation and heating, resulting in a shortfall in the needs of the person in need.
Source: www.gesetze-bayern.de
2.5 – LSG Berlin-Brandenburg, decision of 23.07.2021 – L 3 AS 785/21 B ER
Local jurisdiction – Continued granting – Refusal – Continuation of benefits
Guidance note from the editor of Tacheles e. V.:
1. According to Section 2 Paragraph 3 Sentence 1 of the German Social Code, Book X (SGB X), in the event of a change in local jurisdiction, the previously responsible authority must continue to provide benefits until they are taken over by the now responsible authority. This provision thus grants the benefit recipient a claim against the benefit provider that has become incompetent.
2. The denial, insofar as it concerns only the standard benefits and the additional needs allowance for single parents at issue here, is therefore solely due to the change of jurisdiction and not to any other changes in circumstances affecting eligibility for benefits (possibly related to the move). According to the Senate's preliminary legal opinion, however, the transitional provision contained in Section 2 Paragraph 3 Sentence 1 of the German Social Code, Book X (SGB X), is specifically intended to prevent interruptions in benefits in such situations caused by a move.
Source: gesetze.berlin.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Frankfurt am Main, decision of 21 April 2021 – S 19 AS 302/21 ER
Guiding principles (from the editorial team, info, April 2021):
The rejection of suitable and necessary learning support through tutoring due to a student's "ongoing misconduct" is only possible if, in the specific case, the student lacks a serious effort to achieve a sufficient level of performance.
When assessing the seriousness of the effort, the child's age-appropriate developmental stage must be taken into account.
3.2 – SG Landshut, final judgment by. April 30, 2021 – S 16 AS 387/19
Title:
Consideration of income, Gross negligence, Basic income support for job seekers, Erroneous child benefit retroactive payment despite the basic income support provider's right to reimbursement, No increase in value due to repayment obligation, Withdrawal of an unlawful favorable administrative act, Breach of duty of care, Protection of legitimate expectations
Guiding principles:
1. For the purposes of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), income is defined as only those receipts that represent an increase in funds which remain with the person in need for their final use. If an obligation to repay receipts arises only after the month of receipt, they are still considered income for the month of receipt (see Federal Social Court (BSG), judgment of August 23, 2011 – B 14 AS 165/10 R).
2. If the family benefits office mistakenly pays child benefit retroactively to a recipient of benefits under Book II of the German Social Code (SGB II), even though the entitlement is already considered fulfilled due to an existing reimbursement claim by the basic income support provider, this does not constitute income, as the payment is directly subject to a legally binding repayment obligation. This also applies if the family benefits office only asserts the repayment claim by means of an official notice after the month in which the payment was received.
3. For bad faith within the meaning of Section 45 Paragraph 2 Sentence 3 No. 3 of the German Social Code, Book X (SGB X), it is sufficient if the recipient of the benefit knew or should have known, within the framework of a so-called parallel assessment in the layperson's sphere, that he was not entitled to the benefit granted (cf. Federal Social Court, Judgment of June 24, 2020 – B 4 AS 10/20 R).
4. A recipient of benefits is not required to recognize the illegality of a benefit award notice in which the basic income support provider, contrary to the legal provision of Section 11 Paragraph 1 Sentence 5 of the German Social Code, Book II (SGB II), has considered child benefit not as income of the child, but of the person entitled to child benefit, without a prior, unambiguous indication of the legal situation.
Source: www.gesetze-bayern.de
3.3 – Social Court Berlin, Judgment of 27 July 2021 – S 204 AS 6271/18
No application of the AV Housing; what now? An article by attorney Kay Füßlein
According to the rulings of the Federal Social Court from September 2020, the Berlin Housing Ordinance (AV Wohnen) for determining reasonable rents for recipients of unemployment benefit II (ALG II) is not applicable. This means that higher rents are covered, or must be covered.
The background is that the job centers have not determined whether there are actually enough apartments available for rent at the stated rental prices.
The Senate Department for Social Affairs claims that three vacant apartments are available for every cost-cutting measure. However, this is problematic because, until now, the courts have practically placed the burden of proof for the unavailability of apartments solely on the plaintiff – if someone presented evidence of 20 unsuccessful apartment searches, a court might find that this was insufficient.
Regarding the Job Center's view that sufficient housing is available based on its own investigations, the Berlin Social Court (Judgment of 06.07.2021 – S 179 AS 1083/19) recently made the following understandable and quite plausible finding:
In particular, the calculations presented by the defendant on behalf of the State of Berlin are unsuitable for proving the availability of housing.
Firstly, the calculation is based on the vacancy rate of 1.7 percent stated in the so-called market monitor of the Association of Berlin-Brandenburg Housing Companies (hereinafter referred to as BBU) (see BBU Market Monitor 2019, p. 56, https://bbu.de/publikationen?type=36; accessed June 2021). However, the calculation fails to consider that, according to the BBU itself, this figure does not necessarily reflect the availability of housing. The BBU states in the market monitor (BBU Market Monitor 2019, p. 61, ibid.)
"The breakdown by reasons for vacancy shows that the majority of apartments are only vacant for a short time. Apartments vacant due to ongoing modernization work, tenant changes, or other reasons account for a good 84 percent of all vacant apartments. At the end of 2018, just over a third of the vacant apartments were unoccupied due to modernization work. Only 222 of the 12,380 vacant apartments were vacant for a longer period at the end of 2018 due to difficulties in finding tenants."
Apartments undergoing modernization are not available on the housing market, nor are apartments that have already been rented to a tenant for the following months.
Furthermore, the defendant's analysis overlooks the fact that individuals other than those receiving benefits under Book II of the German Social Code (SGB II) who were required to reduce their housing costs in the comparison year were also searching for apartments. The defendant compares the apartments deemed available based on the vacancy rate, which is a highly reasonable assumption, solely with the needs of those benefit recipients who were newly required to reduce their costs during the same period. This ignores, firstly, the demand from benefit recipients who were previously required to reduce their costs and are now seeking new accommodation. Secondly, it ignores the demand from other recipients of social benefits, such as social assistance, student loans (BAföG), and housing allowance, as well as the demand from low-income households not receiving welfare benefits.
But now the follow-up question arises: what needs to be done?.
In the aforementioned ruling, the court obtained an expert opinion on the costs of a three-room apartment and thus arrived at a value of 655.00 EUR gross cold rent plus heating costs.
In a case represented here, the Berlin Social Court (SG Berlin, S 204 AS 6271/18) applied the table values plus a safety margin of 10% in its judgment of 27 July 2021:
In the absence of a conclusive concept, according to the established case law of the Federal Social Court (BSG), the actual expenses for accommodation are to be used as the basis for the accommodation requirement, limited by the values according to the Housing Benefit Act (WoGG) plus a supplement of 10% (BSG, judgment of 30 January 2019 – B 14 AS 24/18 R –, para. 30 with further references, cited according to juris).
This is equally justifiable: according to our knowledge and market observations, there should hardly be any difference between the table amount according to the WoGG and an actual market observation, at least for single-person households: the amount should be around €475-485 gross (i.e., plus heating costs) for the past years and – when applying the WoGG – currently €525.78 gross (plus heating costs).
In short: the rents recognized and considered appropriate by the job centers cannot be applied in this way: there is actually no housing available in Berlin to the necessary extent for this.
Judgment of the Social Court of Berlin, judgment of 27 July 2021 – S 204 AS 6271/18
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Baden-Württemberg Judgment of 16 April 2021, L 8 AL 1129/20
Guiding Principles:
When calculating the amount of unemployment benefit from employment in Germany, a previously better-paid job performed in Switzerland as a cross-border commuter cannot be taken into account if this would require extending the assessment framework of Section 150 Paragraph 1 of the German Social Code, Book III (SGB III); in such a case, there is no undue hardship as defined in Paragraph 3 of this provision.
Source: lrbw.juris.de
5. Decisions of the State Social Courts on the Child Supplement
5.1 – LSG Hamburg, judgment of May 10, 2021 – L 4 BK 3/20 BK
Requirements for entitlement to child supplement, taking into account the relevant income
Guiding
principle: According to the version applicable from July 1, 2019, entitlement to the child supplement requires that, in addition to housing benefit, child benefit, and the child supplement, income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), amounting to at least €900, is earned. The decisive factor is whether the child supplement prevents the need for social assistance. The period prior to the application serves as the basis for calculation. (Paragraph 8)
Source: www.landesrecht-hamburg.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – No extension of the Dublin transfer deadline due to mere failure to comply with a request to appear for self-reporting
If an asylum seeker fails to comply with a request to appear for compulsory transfer to the EU Member State responsible for conducting the asylum procedure on a specific date (self-presentation), this alone does not constitute "absence" within the meaning of the Dublin III Regulation, so that an extension of the transfer period to 18 months is not justified.
This was decided by the Federal Administrative Court. Case numbers dated August 17, 2021: 1 C 26.20, 1 C 38.20, 1 C 51.20, 1 C 55.20, 1 C 1.21
Continue on juris
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – LSG Bayern, decision of 04.08.2021 – L 1 SV 21/21 B
Title:
Corona pandemic, courthouse, presiding judge, right of domicile, ban from the premises, mask protection concept, face mask, public law dispute, legal recourse, subject matter of the dispute, administrative legal recourse, access restriction, admissibility of the social legal recourse
Guiding principles:
1. Measures restricting access to a social court building due to the Corona pandemic, in the form of an order to wear a face mask, have their legal basis in the court president's right to control access to their property.
2. For disputes concerning the legality of such access restrictions, the administrative legal process is available (distinguishing this from BSG, decision of 01.04.2009, B 14 SF 1/08 R, SozR 4-1500 § 51 No. 6, juris and BSG, decision of 21.07.2014, B 14 SF 1/14 R, SozR 4-1500 § 51 No. 12, juris).
Source: www.gesetze-bayern.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
