1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, judgment of 09/02/2021 – B 8 SUN 13/19 R
Social assistance – accommodation and heating costs – adequacy – elderly person
Social welfare benefits do not have to pay higher heating costs for pensioners
Elderly recipients of social assistance who are sensitive to cold cannot automatically claim reimbursement of higher heating costs from the social assistance provider. Reimbursement of reasonable costs is only possible under the law if there is a specific, increased need for heating in each individual case.
Source: www.evangelisch.de
1.2 – BSG, judgment of 09/02/2021 – B 8 SUN 5/20 R
Social assistance – subsistence allowance – realizable assets – private pension insurance – exclusion from realization
Can a private pension insurance policy, even if it includes an agreement excluding its realization for the period before retirement, constitute assets to be used within the meaning of Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII)?
The social welfare office has only limited access to life insurance policies
If social assistance recipients contractually exclude the sale of their private life insurance policy, which is not due for several years, the social welfare office may take this into account when granting social assistance. Only if a private pension insurance policy can be liquidated within twelve months may the social welfare provider grant the benefits as a loan instead of a subsidy.
Source: www.evangelisch.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Baden-Württemberg decision of 22 July 2021, L 3 AS 4008/20 B
Guiding Principles:
An appeal against a decision rejecting legal aid for the legal proceedings is also unfounded if, after the conclusion of the first-instance proceedings, the lawful decision on provisional benefits challenged in the first-instance proceedings is replaced by a (partially) unlawful decision on final benefits during the appeal and reconciliation proceedings, resulting in (partial) prospects of success.
Source: lrbw.juris.de
2.2 – LSG Baden-Württemberg Judgment of 21 July 2021, L 3 AS 1027/19
Guiding Principles
1. Since the judicial review of a concept for determining the limit of reasonable accommodation costs that can be covered by the basic income support provider is designed as a comprehensive review, a detailed examination of specific questions regarding the representativeness and validity of the data underlying the concept is only necessary if well-founded objections are raised that go beyond a mere denial of the consistency of certain data (following BSG, judgment of 17.09.2020 – B 4 AS 22/20 R, juris para. 30).
2. If the market for available housing is larger than the number of asking rents determined by evaluating rental advertisements, because not all available apartments are marketed through advertisements, the sufficient availability of vacant housing within the reasonable limit cannot be determined by comparing the households in the comparison area with accommodation costs above the reasonable limit and the number of asking rents available at the reasonable limit.
Source: lrbw.juris.de
2.3 – LSG Hamburg, judgment of June 4, 2021 – L 4 AS 195/20
Conditions for a retroactive cancellation of basic income support benefits when receiving BAföG benefits
Guiding principle
1. According to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), trainees whose training is eligible for funding under the Federal Training Assistance Act (BAföG) are not entitled to benefits to secure their livelihood beyond the benefits provided under Section 27 of the SGB II. (Paragraph 47)
2. According to Section 15 Paragraph 2a of the Federal Training Assistance Act (BAföG), eligibility for BAföG funding is only lost if participation in training is prevented due to illness for a period of more than three months. (Paragraph 48)
3. The retroactive revocation of basic income support benefits requires, according to Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book Ten (SGB X), gross negligence in providing materially incorrect information. (Paragraph 50)
4. It is not sufficient for the person concerned to merely have doubts about the accuracy or completeness of their statements or about their legality. The doubts must be so strong that it is clear to everyone that at least one inquiry would be necessary in this regard. (Paragraph 51)
Source: www.landesrecht-hamburg.de
2.4 – LSG Hamburg, judgment of May 27, 2021 – L 4 AS 166/18
Inflows into a debit account must be considered as income when granting basic income support benefits
Guiding principle:
When granting basic income support benefits, any inflow of funds into an overdrawn account of the recipient must be considered income pursuant to Section 11 of the German Social Code, Book II (SGB II). The corresponding repayment of the overdraft is a form of income utilization (Federal Social Court judgment of April 29, 2015, B 14 AS 10/14 R). (Paragraph 38)
Source: www.landesrecht-hamburg.de
2.5 – LSG Hamburg, judgment of April 29, 2021 – L 4 AS 272/18
Requirements for the duty of the basic income support provider to investigate when revoking a provisional grant of basic income support benefits
Principle
1. A preliminary decision granting basic income support cannot be revoked pursuant to Section 45, paragraphs 1 and 2 to 4 of the German Social Code, Book Ten (SGB X), if the basic income support provider has not conducted sufficient investigations into the recipient's need for assistance, taking into account their relevant income and assets. (Paragraph 48)
2. The need for assistance of a person living in a household receiving benefits ceases only when sufficient income is generated within that household. (Paragraph 49)
3. If the basic income support provider has not sufficiently fulfilled its duty to investigate and determine the facts, the issued SGB II revocation notice must be revoked. (Paragraph 50)
4. It is not the court's task to establish the prerequisites for the legality of the contested administrative act by conducting the investigations omitted by the benefit provider (Federal Social Court judgment of June 25, 2015, B 14 AS 30/14). (Paragraph 52)
Source: www.landesrecht-hamburg.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Reutlingen, Judgment of 22.09.2020, S 10 AS 916/20 - legally binding
The job center will not reclaim any wages withheld by a bank
Source: Sozialgericht-reutlingen.justiz-bw.de
3.2 – SG Magdeburg, judgment of July 23, 2021 - S 7 AS 3445/15
Principle
1. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the costs for a garage parking space are considered costs of accommodation and heating that must be covered, provided that the apartment cannot be rented without the garage parking space and the rent, in the absence of a "separable" garage, is still within the bounds of what is reasonable for the relevant place of residence.
2. The analytical spatial category "central area" is a suitable basis for deriving a homogeneous living and residential area.
3. The costs of the accommodation guideline, based on the 2012 rent survey and the evaluation of the 2020 correction report, are based on a coherent concept for the period from February 1, 2015, to March 31, 2015. The court's duty to investigate ex officio is limited to a comprehensible procedural review. A detailed examination of specific issues requires that substantiated objections be raised; a mere denial of the data's consistency is insufficient (see: Higher Social Court of Saxony-Anhalt (5th Senate), judgment of April 15, 2021 – L 5 AS 391/19).
Source: www.landesrecht.sachsen-anhalt.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Saxon State Social Court, Judgment of 14 July 2021 – L 8 SO 101/17
Social assistance – basic income support for the elderly and those with reduced earning capacity – income assessment – deduction of contributions to private insurance – appropriateness of private accident insurance – customary practice – statistical evaluations – special circumstances of the individual case (affirmed here)
Principle:
Whether private accident insurance is commonly taken out by recipients of incomes just above the basic social security threshold is regularly derived from statistical analyses. If the percentage amounts to at least 50 percent of the total population, it may be assumed, for the purpose of assessing commonality, that recipients of incomes just above the basic social security threshold also regularly take out such insurance. However, determining such a percentage of the population who held such insurance at a specific time does not allow for a conclusive assessment of commonality. This is because special circumstances of an individual case can also lead to the conclusion that private coverage is appropriate (following the Federal Social Court's decision of May 10, 2011 – B 4 AS 139/10 R = SozR 4-4200 § 11 No. 38, paragraphs 22, 23). (Paragraph 29)
Source: Juris
5. Decisions on asylum law and asylum seekers' benefits
5.1 – Social Court Kassel – Decision of 25 August 2021 – Case No.: S 11 AY 15/21 ER
Legal basis: Section 1a Paragraph 3 Asylum Seekers' Benefits Act (AsylbLG) – Keywords: AsylbLG, benefit reduction, Corona test, Spain, Kassel Social Court
Guidance note by the editor of Tacheles e. V.:
Granting of full benefits according to §§ 3, 3a Asylum Seekers' Benefits Act in the legally prescribed amount.
In its decision regarding the provisional obligation of the benefits authority to grant full benefits, the adjudicating chamber relies on the reasoning of the Hessian State Social Court concerning the necessity of a constitutionally compliant interpretation of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), particularly in cases such as the present one, where the failure of a deportation measure is attributed to the recipient's lack of cooperation. In this context, the decisions of the Hessian State Social Court of February 26, 2020, in case L 4 AY 14/19 B ER and of July 26, 2021, in case L 4 AY 19/21 B ER, are particularly relevant.
Continued with attorney Sven Adam
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Hartz IV: Garage costs are considered housing costs, an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
6.2 – Application guidelines from the Federal Ministry of the Interior (BMI) regarding the amendments to the Freedom of Movement Act (FreizügG), including those concerning close relatives, a contribution by Claudius Voigt
Extensive amendments to the Freedom of Movement Act (FreizügG) came into force in November 2020. Among other things, the new Section 3a of the Freedom of Movement Act introduced a right of residence for "close relatives" of EU citizens, which can be granted in certain cases to collateral relatives, foster children, and partners in cohabiting relationships. This new regulation is complex and subject to various conditions. The Federal Ministry of the Interior (BMI) has published application guidelines for the amendments to the Freedom of Movement Act, which include detailed explanations of the requirements for a right of residence for close relatives: www.bmi.bund.de
Further explanations can be found in the guide "Freedom of Movement Rights in Family Situations" published by the Paritätische Gesamtverband (Parity Welfare Association): www.der-paritaetische.de
6.3 – No full right of residence after divorce of EU citizen – European Court of Justice denies unequal treatment in cases of domestic violence
Non-EU citizens who have been victims of domestic violence in a marriage with an EU citizen cannot expect social support after a divorce. EU law permits member states to make continued residency dependent on sufficient means of support, the European Court of Justice (ECJ) in Luxembourg ruled on Thursday in a case from Belgium. (Case number: C-930/19)
Continue reading: www.androidkosmos.de
6.4 – Expertise of the Court, a contribution by Herbert Masslau
The following article is prompted by the bad habit at German social courts of making their own opinions on factual issues the basis for judicial decisions, where expert opinions from other people would actually be appropriate.
More information: www.herbertmasslau.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
