1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II), on employment promotion law under the German Social Code, Book III (SGB III), on social assistance under the German Social Code, Book XII (SGB XII), and decisions on asylum law and the Asylum Seekers' Benefits Act (AsylBL)
1.1 – BSG, Judgment of August 5, 2021 (B 4 AS 83/20 R):
Guiding principle Dr. Manfred Hammel:
If a person applying for unemployment benefit II (§§ 19 ff. SGB II) is provided with free meals by their employer as a benefit in kind and this is accounted for together with their salary, then the job center may consider this benefit shown in the pay statements as income according to § 11 para. 1 sentence 1 and 2 SGB II.
Even if taxes and social security contributions have also been levied on this benefit in kind, it still constitutes remuneration that has not been "bought" by the employee through these statutory deductions.
If this employee claims this benefit in kind as part of their remuneration under the employment contract, the job center may therefore assume an inflow of income of monetary value, which must be taken into account as reducing their need in accordance with Section 2 Paragraph 5 of the German Social Code, Book II (SGB II).
1.2 – BSG, Judgment of March 23, 2021 (B 8 SO 16/19 R):
Guiding principle Dr. Manfred Hammel:
The wording "at least" in Section 27b Paragraph 3 Sentence 2 No. 1 of the German Social Code, Book XII (SGB XII) suggests that the cash amount claimed by a needy person in full-time residential care pursuant to Section 27b Paragraph 2 of the SGB XII is merely a basic amount, which can be increased in individual cases if the needs attributable to this guideline value cannot otherwise be adequately covered, and which may also be reduced by the social welfare provider if and to the extent that the intended use of this cash benefit by or for the person entitled to it should not be possible (Section 27b Paragraph 3 Sentence 3, second half-sentence of the SGB XII).
This amount is intended to grant people housed in this environment a personal leeway to cover additional expenses beyond the institutionally prescribed framework provided by the institution, taking into account the right to choose and express wishes arising from Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII).
When calculating this cash benefit, the additional needs allowance pursuant to Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII), is not to be taken into account when the disability marker "G" is granted. These special needs are included in the calculation of the (included) subsistence allowance pursuant to Section 27b Paragraphs 2 and 3 of the SGB XII in conjunction with Section 42 Number 2 of the SGB XII.
When determining the cash amount, the social welfare office must examine in each individual case which standard needs-related services are provided by the receiving institution and to what extent, and where needy residents are completely on their own to meet their needs.
Regarding the provision of necessary outerwear, which is also to be reimbursed as a lump sum in accordance with Section 27b, paragraphs 2 and 4 of the German Social Code, Book XII (SGB XII), the specific needs of residents in care facilities must be determined on a case-by-case basis. In particular, this amount may not be offset against the cash allowance granted under Section 27b, paragraphs 2 and 3 of the SGB XII.
According to Section 27b Paragraph 2, first half-sentence of the German Social Code, Book XII (SGB XII), the social welfare agency must also recognize further needs for necessary subsistence, if required. In this context, the principle of individualized needs coverage (Section 9 Paragraph 1 SGB XII) is fully valid.
Based on the wording in Section 27b Paragraph 2 of the German Social Code, Book XII (SGB XII) ("in particular"), individually tailored assistance (e.g., taking into account the costs of dental fillings and vision aids) is possible if neither "benefits in case of illness" under Sections 27 et seq. of the German Social Code, Book V (SGB V) nor "assistance for health" under Sections 47 et seq. of the German Social Code, Book XII (SGB XII) is granted by the statutory health insurance provider, provided that the respective benefit is considered medically necessary and economical, and the person in need has no means of their own to cover their needs.
The same applies to costs claimed by residents of care homes for the operation of an electric wheelchair, provided that the facility does not offer any or only an inadequate mobility service. This constitutes a necessary service for participation as a regularly arising need.
1.3 – BSG, judgment of November 3rd, 2021 – B 11 AL 8/20 R
Unemployment insurance – entitlement to unemployment benefits – compulsory insurance relationship – employment – intention to continue employment
The Federal Social Court clarifies periods of employment that count towards unemployment benefit I (www.evangelisch.de)
. Employees must generally have received continuous wages to be eligible for unemployment benefit I. If a labor court settlement stipulates the end of a job where the last month is unpaid, this month does not count towards the required twelve-month qualifying period for unemployment benefit I.
Legally, to receive unemployment benefit I, unemployed individuals must have been in paid employment for at least twelve months within the past 30 months. If employment is interrupted for up to one month and then resumed, this period can exceptionally be counted towards the required regular twelve-month qualifying period.
Source: www.evangelisch.de
1.4 – BSG, judgment of November 3rd, 2021 – B 11 AL 2/21 R
Unemployment insurance – further training bonus – office management clerk – extended final examination
Two-part advanced training exam does not result in double the bonus (www.evangelisch.de).
The Federal Employment Agency (BA) is only required to award a bonus once for successfully completing a two-part advanced training exam. Even if the exam takes place in two separate parts, each successfully passed part does not have to be rewarded separately.
According to the law, a double bonus is only provided for passing both an intermediate and a final examination.
Source: www.evangelisch.de
1.5 – BSG, Judgment of August 5, 2021 (B 4 AS 82/20 R):
Guiding principle of Dr. Manfred Hammel:
Denial of the applicability of the entire district as a comparison area within the framework of determining the appropriateness of housing costs pursuant to Section 22 Paragraph 1 Sentence 1 SGB II.
This is particularly relevant when public transport in this district has a market share of less than three percent, placing this municipality last in this large state. This fact hinders adequate accessibility to all locations within the district.
The conditions in large cities can only be applied to rural areas to a limited extent, where there is no remotely well-developed public transport network.
Districts with very poor infrastructure can therefore form their own, rather small comparison area.
A deficiency in the concept underlying the determination of the appropriateness of housing costs under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), regarding the representativeness of the data and facts presented therein, does not automatically entitle the SGB II provider to apply a ten percent surcharge to the table values according to the Housing Benefit Act (WoGG). The job center must first be given the opportunity to rectify the deficiency.
1.6 – BSG, Judgment of June 24, 2021 (B 7 AY 5/20 R):
Principle by Dr. Manfred Hammel:
Denial of the claim for reimbursement of travel and accommodation costs incurred for attending the hearing in the asylum procedure by the public authority responsible for granting benefits under the Asylum Seekers' Benefits Act (AsylbLG), neither under Section 2 Paragraph 1 AsylbLG in conjunction with Section 73 SGB XII ("Assistance in other life situations") nor under Section 6 Paragraph 1 Sentence 1 AsylbLG ("Other benefits") in conjunction with Section 27a Paragraph 4 Sentence 1 SGB XII ("deviating standard rate determination").
Travel and accommodation costs do not constitute an atypical need within the meaning of Section 73 of the German Social Code, Book XII (SGB XII).
Mobility needs and accommodation services are recognized and taken into account as typically occurring needs when calculating the standard benefit (§ 27a para. 2 sentence 1 SGB XII in conjunction with § 28 SGB XII).
In the absence of a regulatory gap, an “analogous application” of Section 73 Sentence 1 of the German Social Code, Book XII (SGB XII) is not possible in the case of one-off or continuously arising needs that are covered by Chapter Three or Four of the SGB XII.
The only option here is the granting of a supplementary loan in accordance with Section 37 Paragraph 1 of the German Social Code, Book XII (SGB XII).
This loan ensures that the attendance of important official appointments, which may be scheduled at a distant date, does not fail due to lack of funds.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits by analogy cannot derive any rights from Section 6 of the AsylbLG as a provision with a special catch-all function, because for this clientele the provisions of the German Social Code, Book XII (SGB XII) take the place of the provisions on subsistence-securing benefits of the AsylbLG.
The application of Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII) requires a continuously due, higher need and not a one-off need.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Thuringia, judgment of June 24, 2021 – L 9 AS 1547/18
Unemployment benefit II – Accommodation and heating – Rent deposit loan – Repayment – Inadmissibility of enforcement through civil debt collection proceedings – Substantive review of the adjudicated claim – Binding effect of the enforcement order – Failure to meet the objection deadline
Principle
1. The repayment of a loan claim under Section 22 Paragraph 6 of Book Two of the Social Code may not be pursued by the job center through civil debt collection proceedings. (Paragraph 19)
2. The social court to which the proceedings have been transferred by the court issuing the payment order is nevertheless prevented from substantively reviewing the claim established by the enforcement order if the enforcement order has become binding. (Paragraph 20)
Source: landesrecht.thueringen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Magdeburg, judgment of 19 October 2021 (S 20 AS 243/21):
Guiding principle Dr. Manfred Hammel:
An administrative act, e.g. a decision on a review application, only becomes effective when this official order has been demonstrably communicated to the applicant or the appointed representative (§ 37 para. 1 SGB X).
In case of doubt, the authority must prove receipt of the administrative act and the date of receipt (§ 37 para. 2 sentence 3, second half-sentence SGB X). This requirement is not met if the job center can only prove that the decision was sent, but not that it was delivered.
3.2 – SG Magdeburg, judgment of September 2, 2021 – S 7 AS 940/17
Matters under the German Social Code, Book II (SGB II) (AS) – Eligibility for reimbursement of costs for obtaining a medical certificate as proof of additional needs pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II)
Principle
1. The issuance of a medical certificate by the applicant's treating physician as proof of the additional needs for a costly diet pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), does not constitute an examination measure pursuant to Section 62 of the German Social Code, Book I (SGB I).
2. The costs incurred in obtaining the medical certificate are not to be reimbursed by the benefit provider within the scope of the applicant's duty to cooperate pursuant to Section 60 of the German Social Code, Book I (SGB I), unless the costs are in reasonable proportion to the social benefit claimed, contrary to Section 65 Paragraph 1 of the German Social Code, Book I (SGB I).
3. Obtaining a medical certificate as proof of additional needs for a costly diet pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) is the applicant's own responsibility pursuant to Sections 677 and 683 of the German Civil Code (BGB) within the scope of their duty to cooperate pursuant to Section 60 Paragraph 1 of the German Social Code, Book I (SGB I).
Source: www.landesrecht.sachsen-anhalt.de
Note from the editor of Tacheles e. V.:
SG Braunschweig, 13.01.2016 – S 17 AS 3211/12 – Entitlement of a person in need of assistance under the German Social Code, Book II (SGB II), to reimbursement of further costs for the issuance of a medical certificate
Brief commentary by Harald Thomé:
The medical certificate confirming the need for a special diet is required by the authorities and thus constitutes evidence within the meaning of Section 21 of the German Social Code, Book X (SGB X). The authority should have initiated an examination on its own initiative, in accordance with the principle of official investigation (Sections 20 SGB X, 103 of the German Social Court Act (SGG); Federal Social Court (BSG) judgment of February 24, 2011 – B 14 AS 49/10 R, Federal Social Court (BSG) judgment of February 14, 2013 – B 14 AS 48/12 R). The certificate submitted by the applicant must be recognized as a subsequently necessary examination within the meaning of Section 65a Paragraph 2 of the German Social Code, Book I (SGB I).
Otherwise, the Social Court of Braunschweig (see comment above) also states that these costs must be borne according to the principle of the party who commissions the service under the German Civil Code (BGB). Such a decision by the Social Court of Magdeburg is incomprehensible and at least also violates Section 2 Paragraph 2 of the German Social Code, Book I (SGB I).
3.3 – Social Court Berlin, decision of 04.11.2021 – S 114 AS 6315/21 ER
Relocation commitment – Rent ceilings in Berlin – Commentary by attorney Kay Füßlein, Berlin
Currently, due to Section 67 of the German Social Code, Book II (SGB II), no cost-cutting measures are being announced or implemented for benefit recipients (at least until December 31, 2021).
In cases of relocation or already reduced rents, the Berlin Job Centers apply the so-called AV Wohnen (Housing Guidelines). Regarding past periods, the Federal Social Court ruled on the rent ceilings specified therein ("reasonable costs for accommodation and heating" according to Section 22 of the German Social Code, Book II (SGB II) or Section 35 of the German Social Code, Book XII (SGB XII)) that it is insufficient to calculate these ceilings solely based on the rent index; rather, it is also necessary to verify whether apartments are available at these rent levels. However, this availability check is not currently being carried out (see Section IV of the AV Wohnen Guidelines).
The logical consequence is that for already reduced rents or new leases, the rent ceilings are determined by the Housing Benefit Act plus a 10% safety margin and heating costs. Berlin is classified in rent level IV in this regard.
Besides benefit recipients who are already only covered for a reduced rent, those wishing to move also face the question of what constitutes a reasonable rent.
Before moving, not only must there be a reason for moving, but the rent for the apartment must also be reasonable.
In this case, my pregnant client wanted to rent a new apartment for various (valid) reasons. However, the responsible job center deemed the new apartment "too expensive." In reality, there are no apartments available on the Berlin housing market for around €6.50/m²; this would become apparent if the Federal Social Court's requirement to verify the availability of such apartments were fulfilled.
Therefore, the Berlin Social Court ordered the Job Center to provide a guarantee for an apartment that, while not suitable according to the AV Wohnen (Housing Ordinance), meets the suitability criteria according to the WoGG (Housing Benefit Act); the question of whether, due to § 67 SGB II (Social Code Book II), virtually any apartment can be rented anyway (as, for example, in the decisions of the Baden-Württemberg State Social Court of 11 March 2021, L 9 AS 233/21 ER and the Bavarian State Social Court of 28 July 2021 – L 16 AS 311/21 B ER) was no longer relevant.
Source with full text: www.ra-fuesslein.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Baden-Württemberg Judgment of 23 July 2021, L 8 AL 3122/20
Guiding Principles
1. A judgment pronounced on the basis of oral proceedings, which lists the participating professional judges in the heading and has been qualifiedly electronically signed by them, is not invalid or to be regarded as a non-judgment simply because the names of the professional judges are not listed again at the end of the electronic document, contrary to Section 65a Paragraph 7 of the Social Court Act (SGG).
2. Regarding the absence of a ground for remand under Section 159 of the Social Court Act (SGG) in the case of a formal error as described in point 1.
Source: lrbw.juris.de
4.2 – SG Dortmund, judgment of May 10, 2021 – S 102 AL 729/18
Participation in working life – Mobility assistance – Motor vehicle assistance – Subsidy for transport costs to the workplace – Calculation of the income-dependent co-payment – Analogous application of Section 155 SGB III
Guiding principle of the editor of Tacheles e. V.:
1. Analogous application of Section 155 of the German Social Code, Book III (SGB III), because in the plaintiff's case, a co-payment is calculated based on previous monthly income that exceeds the current monthly income. A co-payment must be based on the insured person's current ability to pay. The court applies Section 155 of the SGB III analogously. Accordingly, the plaintiff's co-payment is to be calculated monthly based on the income earned in each month.
2. The Chamber does not apply the instructions of the defendant, to which it is not bound in any case.
Source: www.justiz.nrw.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Lower Saxony-Bremen State Social Court, decision of 20 October 2021 – L 8 SO 157/21 B ER
Lower Saxony-Bremen State Social Court: On the prerequisites for subsistence benefits for EU citizens
further with the lawyers Beier and Beier from Bremen
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Federal Social Court facilitates therapy for traumatized refugees
The Federal Social Court has made it easier for traumatized asylum seekers to access psychotherapy. As the judges in Kassel ruled on Thursday, therapists can demand that the statutory health insurance associations authorize them to treat traumatized refugees, even without formal accreditation, and that the psychotherapy sessions then be billed to the statutory health insurance funds. (Case No.: B 6 KA 16/20 R)
Until a decision is made on their asylum application, asylum seekers have a direct entitlement to reimbursement of medical costs from their respective federal state for the first 18 months (previously 15 months). After that, statutory health insurance funds are responsible. Treatment at the expense of health insurance funds is then only possible with a licensed physician or psychotherapist.
In response to high numbers of refugees, the legislature reacted in 2015 to the particular psychological problems of the people.
More information: www.evangelisch.de
6.2 – Unemployment benefits: Suspension for half-hearted job searches
Those who are unemployed must apply for jobs suggested by the employment agency. If it becomes apparent that no effort is being made, there can be consequences.
Anyone who is unemployed must register with the employment agency in good time. The employment agency will then suggest potential job openings for which the individuals should apply.
Job seekers must also support these placement efforts, as if it were their own application. Otherwise, they risk a suspension of their unemployment benefits. The Social Law Working Group of the German Bar Association points this out, citing a ruling by the Gießen Social Court (Case No. S 14 AL 81/21).
Applicant refers to planned self-employment
More information: www.saechsische.de
6.3 Planned increase in standard benefits under SGB II for 2022 is insufficient – Expert opinion by Prof. Lenze dated September 30, 2021 – a contribution by attorney Lars Schulte-Bräucker
In a recent expert opinion by Prof. Lenze dated September 30, 2021, she deals extensively with the planned increase in the standard benefit rate for 2022 in the area of SGB II, also colloquially known as Hartz IV.
She concludes that the planned increase on January 1, 2022 is insufficient.
Continue to www.anwalt.de
Comment by Harald Thomé on the appeal by attorney Lars Schulte-Bräucker:
The request to file an objection is incomprehensible. The notices are lawful, and any court would confirm this. It would be different to claim the price increase via an application under Section 21, Paragraph 6 of the German Social Code, Book II (SGB II); this would at least have a formal prospect of success.
And going out onto the streets now wouldn't hurt either…
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
