1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court, judgment of 12 May 2021 (B 4 AS 66/20.R):
Principle Dr. Manfred Hammel
§ 34a para. 1 sentence 1 SGB II (“Claims for compensation for unlawfully provided benefits”) entitles a job center to assert claims for compensation against persons who – e.g. as legal guardian (§§ 1896 ff. BGB) of an ALG II recipient – are outside of a social security benefit relationship.
Section 34a paragraph 1 sentence 1 of the German Social Code, Book II (SGB II) refers exclusively to unlawfully provided benefits, is directed at persons other than the recipients of unemployment benefit II (Alg II), and only applies if these third parties have deliberately brought about the unlawful provision of benefits – and not merely the conditions for this.
Section 34a paragraph 1 sentence 1 of the German Social Code, Book II (SGB II) does not apply if an unlawful provision of benefits cannot in any way be attributed to the conduct of a legal guardian of an ALG II recipient.
Section 34a of the German Social Code, Book II (SGB II) is not intended to compensate for errors made by authorities.
In the first stage, when examining the cause of unlawful benefit provision, in addition to the conduct of the legal guardian (e.g., failure to cooperate in the application process or to review the bank statements of the person under guardianship and to inform the SGB II provider accordingly), inadequate case processing by the job center must also be taken into account (e.g., failure to act on the information about previous employment subject to social security contributions and to advise the applicant to apply for unemployment benefit I in accordance with Section 12a Sentence 1 SGB II or to submit an application ex officio in accordance with Section 5 Paragraph 3 Sentence 1 SGB II).
The misconduct of the SGB II provider as a competent social service provider expressly obligated to provide advice (§ 14 SGB I) and implement social benefits (§ 17 SGB I) in the context of processing an application for ALG II outweighs the possible misconduct of the volunteer caregiver as well as any possible misconduct of the benefit recipient.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Saxony-Anhalt, Judgment of 04.05.2021 – L 4 AS 42/18
Principle
1. Sections 102 et seq. of the German Social Code, Book X (SGB X) govern reimbursement claims between social security institutions, but not payment claims of benefit recipients against a social security institution. If the institution liable for reimbursement pays the institution entitled to reimbursement an excessive amount, it is not released from its obligation to the benefit recipient to that extent (Section 107, Paragraph 1, SGB X).
2. If the pension insurance institution, as the liable benefit provider, has wrongly made payments, these do not reduce the pensioner's entitlement to payment.
Source: www.landesrecht.sachsen-anhalt.de
2.2 – LSG Saxony-Anhalt, Judgment of 04.05.2021 – L 4 AS 82/20
Matters under the German Social Code, Book II (SGB II) (AS) – Reimbursement of costs of the preliminary proceedings pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X)
Principle:
The silence of a recipient of benefits under Book II of the German Social Code (SGB II) during the hearing procedure pursuant to Section 24 Paragraph 1 of Book X of the German Social Code (SGB X) cannot be considered an abuse of rights, because they are not subject to any duty to cooperate in this respect. Therefore, it also does not constitute an exceptional case in which, according to the case law of the Federal Social Court (Judgment of September 24, 2020, Case No.: B 9 SB 4/19 R, juris RN 15ff with further references), a deviation from the generally required formal approach for the success of an objection within the meaning of Section 63 Paragraph 1 of Book X of the German Social Code (SGB X) is permissible. In particular, silence during the hearing procedure cannot be equated with insufficient cooperation in the application procedure.
Source: www.landesrecht.sachsen-anhalt.de
2.3 – LSG Saxony-Anhalt, Judgment of 04.05.2021 – L 4 AS 596/18
Matters under the German Social Code, Book II (SGB II) (AS) – Regarding initial equipment needs according to Section 24 Paragraph 3 SGB II and maintenance expenses according to Section 22 Paragraph 2 SGB II
Source: www.landesrecht.sachsen-anhalt.de
2.4 – LSG Saxony-Anhalt, Judgment of 21.06.2021 – L 2 AS 462/19
Principle
1. According to the principles prohibiting the so-called validity-preserving reduction of administrative acts providing information, courts are not authorized to partially overturn such decisions in the sense of a supposed "lesser" effect. This also applies to requests for information under Section 60 of the German Social Code, Book II (SGB II).
2. If the Social Court has nevertheless only partially revoked an administrative act concerning information and only the addressee of this administrative act has filed an appeal against it, the administrative act must be revoked in its entirety in the appeal proceedings.
Guiding principle
for matters under the German Social Code, Book II (SGB II) (AS) – duty of the person liable for maintenance to provide information – request for information as a single administrative act – no partial illegality – no reduction to preserve validity.
Source: www.landesrecht.sachsen-anhalt.de
2.5 – Saxon State Social Court, Judgment of 06.02.2020 – L 3 AS 741/17
A commitment to relocate, provided it is not subject to any conditions, does not become invalid within the meaning of Section 39 Paragraph 2 Alternative 5 of the German Social Code, Book X (SGB X), upon the initial granting of benefits to secure subsistence under the German Social Code, Book II (SGB II). It generally remains valid until a significant change occurs in the factual or legal circumstances that existed when the administrative act with continuing effect was issued, which would justify the revocation of a benefit decision in accordance with Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 48 of the German Social Code, Book X (SGB X), as well as Section 40 Paragraph 2 Number 3 of the German Social Code, Book II (SGB II) in conjunction with Section 330 Paragraph 3 Sentence 1 of the German Social Code, Book III (SGB III), or until the commitment ceases to be binding within the meaning of Section 34 Paragraph 3 of the German Social Code, Book X (SGB X).
Source: www.justiz.sachsen.de and full text
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, judgment of July 19, 2021 – S 155 AS 14941/16
Unemployment benefit II – Accommodation and heating – Adequacy assessment – Two-person household in Berlin – Specific adequacy – Examination of the availability or rentability of suitable accommodation – Availability rate
Principle
1. To determine whether housing is actually made available to benefit recipients at the prices deemed appropriate, a measure of availability must be established. (Following the Berlin Social Court decision of July 6, 2021 – S 179 AS 1083/19 –). (Paragraph 36)
2. Following the Federal Social Court's decision of September 17, 2020 – B 4 AS 22/20 R = SozR 4-4200 § 22 No. 111, sufficient housing availability can be assumed for Berlin if the values deemed appropriate allow for the rental of 33% of the apartments of an appropriate size offered during the period in dispute. (Paragraph 37)
Source: gesetze.berlin.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Saarland, judgment of September 7, 2021 – L 6 AL 1/20
Matters concerning the Federal Employment Agency
Appeals
Principle
1) According to Section 93 Paragraph 1 of the German Social Code, Book III (SGB III), entitlement to a start-up grant requires, among other things, that unemployment is ended by taking up self-employment as a primary occupation. This is not the case if there was actually no unemployment within the meaning of the law (Section 138 Paragraph 1 SGB III) because the unemployment was brought about in order to take up self-employment; in this case, the necessary actual availability for the general labor market is lacking (cf. the Senate's judgment of November 22, 2013 – L 6 AL 35/11).
2) For the additional requirement of receiving unemployment benefits for at least 150 days (§ 93 para. 2 sentence 1 SGB III), the existence of the basic entitlement is not sufficient. Rather, a concrete claim for payment of unemployment benefits against the Federal Employment Agency is necessary. Such a claim does not exist, in particular, if the entitlement to unemployment benefits has been suspended due to the imposition of a sanction period.
Source: recht.saarland.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – SG Landshut, Decision of 18.08.2021 – S 3 SO 39/21 ER
Title:
Disputes under the German Social Code, Book XII (Social Assistance), including matters under Part 2 of the German Social Code, Book IX
Guiding principles:
1. It appears preferable to limit the scope of application of Section 141 Paragraph 2 of the German Social Code, Book XII (SGB XII) to cases in which social assistance benefits were applied for for the first time or again after a break of at least one month, through sufficient income or assets to cover needs.
2. According to Section 141 Sentence 2 Sentence 1 of the German Social Code, Book XII (SGB XII), assets will only be disregarded once for six months, even if several benefit periods begin between March 1, 2020 and December 31, 2021.
3. The six-month period of Section 141 Paragraph 2 Sentence 1 SGB XII also begins on the first day of the first benefit period beginning between 01.3.2020 and 31.12.2021, even if, at that time, the assets do not yet exceed the amount to be protected according to Section 90 Paragraph 2 Number 9 SGB XII.
Source: www.gesetze-bayern.de
Note:
Press release on this topic: Easier access to social assistance during the Corona pandemic: Assets will not be considered for six months
The Social Court of Landshut had to deal with the transitional provision of Section 141 Paragraph 2 of the German Social Code, Book XII (SGB XII), which was enacted in the course of the Corona pandemic, and in this regard with the question of when the six-month period mentioned therein begins.
Continue on Juris
5.2 – LSG Baden-Württemberg Judgment of 25 March 2021 – L 7 SO 3198/19
The guiding principles
of Section 98 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII) only regulate local jurisdiction for inpatient services; it does not include partial inpatient services in the form of assisted living.
Source: lrbw.juris.de
Note:
Press release from the Baden-Württemberg State Social Court dated October 1, 2021:
The city of Tübingen must bear the costs of living and accommodation in the Tübingen women's shelter for a woman and her son from Zollernalbkreis
The Stuttgart Higher Social Court (LSG Stuttgart) had to decide which social welfare provider must pay the costs for living and accommodation when a woman and her child find refuge in a women's shelter in another city or district.
Continue on Juris
6. Decisions on asylum law and asylum seeker benefits
6.1 – Hildesheim Social Court – Decision of 21 September 2021 – Case No.: S 42 AY 4012/21 ER
Legal provisions: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: Roma, Kosovo, stateless, submission of documents, passport requirement, non-abusive extension of stay, standard benefit level 2b, Hildesheim, Senkingstraße 10 a
Continued with attorney Sven Adam
Note:
Press release: The Lower Saxony-Bremen State Social Court strengthens the rights of Roma refugees and all single residents of the housing complex at Senkingstraße 10a in Hildesheim
The Lower Saxony-Bremen State Social Court (LSG) has significantly strengthened the rights of Roma refugees from Kosovo in two expedited proceedings (case numbers: L 8 AY 118/20 B ER and L 8 AY 76/20 B ER) within a single week. The court ordered the Hildesheim district to grant the applicants considerably higher subsistence benefits under the Asylum Seekers' Benefits Act, based on fundamental considerations. These decisions also affect the entitlements of all residents of the housing complex at Senkingstraße 10a in Hildesheim.
Continue at: anwaltskanzlei-adam.de
6.2 – Freiburg Social Court, decision of 23 September 2021 (S 10 AY 2469/21.ER):
Guiding principle Dr. Manfred Hammel:
The conditions for a restriction of entitlement pursuant to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) are met in the case of a Gambian tolerated in the federal territory pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act (AufenthG), if this non-German person refuses to cooperate in obtaining valid identity documents, if this prevents the enforcement of a legally binding deportation order.
However, the legal consequences of Section 1a Paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) always require a constitutionally compliant interpretation.
Additional benefits provided for in Sections 3, 3a and 6 of the Asylum Seekers' Benefits Act (AsylbLG) may also be granted here, but not as a lump sum, only if this is necessary in consideration of the applicant's needs.
A reduction in benefits that is independent of need is not in accordance with the rule-of-law principle of proportionality.
Even in cases of benefit restrictions pursuant to Section 1a, paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG), every case of need pursuant to Section 3, paragraph 1 of the AsylbLG must be recorded outside of the benefits reduced pursuant to Section 1a, paragraph 1, sentence 2 of the AsylbLG. This applies particularly to an applicant entitled to benefits pursuant to Section 1, paragraph 1, number 4 of the AsylbLG who is accommodated in a somewhat remote region and has particularly high needs for transportation and communication.
6.3 – SG Stade, decision of 26.8.21 – S 5 AY 5/21 ER
Note from attorney Volker Gerloff: Due to significant doubts about the constitutionality of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), full benefits must be granted in expedited proceedings
Source: twitter.com
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – No entitlement to parental allowance for the spouse of a development worker if they do not live permanently together in a household located abroad
If the spouse of a development worker who lives abroad does not live in the same household as him and their child because of an unstable domestic relationship, she is not entitled to parental allowance.
Further information: www.juris.de
7.2 – Herbert Masslau
SGB II / SGB XII: Standard benefit 2021 unconstitutional
More information: www.herbertmasslau.de
7.3 – Case law on the German Social Code, Book II (SGB II) during the pandemic – Judge Christian König, currently a research associate at the Federal Social Court (BSG)
Case law on the German Social Code, Book II (SGB II) during the pandemic
Judge Christian König, currently a research assistant at the Federal Social Court (BSG)
This essay provides an overview of the previous case law of the social courts in connection with the COVID-19 pandemic.
juris – The monthly magazine jM 10/2021, 372
7.4 – Notice of right to object must mention the possibility of electronic filing – Schleswig-Holstein State Social Court, decision of 06.05.2021, L 6 AS 64/21 B ER – a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
Note from the editor of Tacheles e. V.:
This corresponds – as far as can be seen – to the prevailing view in current social court case law (LSG NSB, decision of 09.09.2021 – L 13 AS 345/21 B ER; Schleswig-Holstein Higher Social Court [LSG], decisions of 20 December 2018 – L 6 AS 202/18 B ER – and of 6 May 2021 – L 6 AS 64/21 B ER –; SG Hildesheim, judgment of 3 September 2020 – S 12 AS 13/19; SG Berlin – 51st Chamber –, decision of 22 January 2020 – S 51 KR 2926/19 ER; SG Berlin – 179th Chamber –, judgment of 8 December 2020 – S 179 AS 10734/19; SG Darmstadt, decision of 23 May 2018 – S 19 AS 309/18 ER; contra: Social Court Berlin – 37th Chamber –, judgment of August 13, 2020 – S 37 AS 4462/19; Social Court Lübeck, judgment of October 16, 2020 – S 16 AS 116/19) and in the commentary literature (see Müller in: jurisPK-ERV, Volume 3, as of August 16, 2021, § 66 SGG para. 21 et seq.; Jung in: beck-online Großkommentar, as of May 1, 2021, § 66 SGG para. 18; Mink in: BeckOK Sozialrecht, as of June 1, 2021, § 66 SGG para. 2; Heße in: BeckOK Sozialrecht, § 36 SGB X para. 10, contra: only Siewert (in: Diering/Timme/Stähler, SGB X, 5th ed. 2019, § 36 para. 8 and Mutschler in: Kasseler Kommentar Sozialversicherungsrecht, as of May 2021, § 36 SGB X para. 18, each referring to the older BSG case law; leaving open: Senger in: jurisPK-SGG, as of October 23, 2020, § 66 para. 28 ff.; Grube in: jurisPK-SGB X, as of January 10, 2021, § 36 para. 41; Engelmann in: Schütze, SGB X, 9th ed. 2020, § 36 para. 18)
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
