1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on employment promotion law (SGB III)
1.1 – BSG, judgment of November 11, 2021 – B 14 AS 41/20 R
Basic income support for job seekers – consideration of income – reimbursement of travel expenses
Regarding the consideration of a travel allowance that the beneficiary has received from his employer for business-related journeys with his private vehicle as income under the German Social Code, Book II (SGB II).
Reimbursement of travel expenses by an employer is considered income from employment
Guiding principle of the editor of Tacheles eV:
1. Reimbursement of travel expenses by an employer is to be taken into account as income from employment within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II when calculating ALG II.
2. If the reimbursement of travel expenses constitutes income, the necessary expenses associated with obtaining it must be deducted from it in accordance with Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II), before it is taken into account in the calculation of benefits.
3. For every kilometer driven on a work-related journey, recipients of unemployment benefit II (ALG II) are entitled to a deduction of ten cents. With appropriate documentation, additional travel expenses can also be deducted.
Source: www.bsg.bund.de
Note from the editor of Tacheles e. V.:
For those receiving supplementary Hartz IV benefits, travel allowances are considered income: www.evangelisch.de
1.2 – BSG, judgment of November 11, 2021 – B 14 AS 33/20 R
Basic income support for job seekers – consideration of income – student income
Guiding principle of the editor of Tacheles e. V.:
If gainful employment is pursued both during and outside of the holidays, only the income earned during the holidays remains privileged.
Source: www.bsg.bund.de
1.3 – BSG, judgment of November 11, 2021 – B 14 AS 89/20 R
Basic income support for job seekers – entitlement to social assistance – reduced earning capacity pension – social welfare – insurance allowance
Even a non-working member of a household receiving basic income support in old age and in case of reduced earning capacity under the German Social Code, Book XII (SGB XII), may in principle be entitled to social assistance.
Guidance note from the editor of Tacheles e. V.:
1. Even a non-working member of a household receiving basic income support for the elderly and those with reduced earning capacity under Book XII of the German Social Code (SGB XII) may, in principle, be entitled to social assistance. However, a priority-subsidiary relationship exists in this respect. This follows from Section 19 Paragraph 1 Sentence 2 and Section 5 Paragraph 2 Sentence 2 of Book II of the German Social Code (SGB II).
2. A claim for social assistance is only secondary in the exceptional case where, despite the provision of benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), a shortfall remains. Such an exceptional case does not exist here – even though the provisions of the German Social Code, Book II (SGB II) and Book XII (SGB XII) are not coordinated and the determination of needs is based on the principles of the so-called "mixed household".
3. Differences between the German Social Code, Book II (SGB II) and Book XII (SGB XII) regarding income crediting – as invoked here to justify the claim for social assistance – cannot, in principle, result in a shortfall in benefits. They merely reflect the differentiations of the respective benefit systems due to their different purposes.
4. An entitlement to supplementary social assistance does not arise solely from the deduction of the insurance allowance under Section 6 Paragraph 1 Number 1 of the Regulation on Unemployment Benefit II (Alg II-V). According to this regulation, a lump sum of €30 per month is to be deducted from the income of adult benefit recipients for contributions to private insurance policies pursuant to Section 11b Paragraph 1 Sentence 1 Number 3 of the German Social Code, Book II (SGB II), provided these contributions are reasonable in terms of both amount and purpose. While this provision has no equivalent in the German Social Code, Book XII (SGB XII) or the Ordinance on Section 82 of the SGB XII, this does not mean that benefits under Chapter 4 of the SGB XII fail to secure subsistence. The lump sum is not an additional benefit that increases the recipient's needs.
5. For this reason, the plaintiff's entitlement to – supplementary – social assistance does not arise from the fact that his motor vehicle liability insurance would be deductible under Section 11b Paragraph 1 Sentence 1 No. 3 of the German Social Code, Book II (SGB II) – unlike in the German Social Code, Book XII (SGB XII).
Source: www.bsg.bund.de
1.4 – BSG, judgment of 11/11/2021 – B 14 AS 16/20 R and B 14 AS 15/20 R
Basic income support for job seekers – consideration of income – compensation payment – unreasonable duration – legal proceedings
Is compensation for the unreasonable length of court proceedings to be considered income under Section 198 of the Courts Constitution Act (GVG)?
Compensation for lengthy legal proceedings does not reduce Hartz IV benefits
Guiding principle of the editor of Tacheles e. V.:
1. Hartz IV recipients can keep any compensation received due to an excessively long legal dispute with the job center.
2. Compensation payments due to excessively long proceedings are not to be counted as income for the purposes of unemployment benefit II.
Note:
Compensation for lengthy legal proceedings does not reduce Hartz IV benefits: www.evangelisch.de and www.juris.de
1.5 – BSG, judgment of November 3rd, 2021 – B 11 AL 6/21 R
Unemployment insurance – short-time work allowance – cross-border commuters – fictitious wage tax deduction
Federal Social Court overturns discrimination against cross-border commuters in the calculation of short-time work compensation – An article by Hans-Georg Herrmann
On November 3, 2021, the Federal Social Court, in its decision B 11 AL 6/21 R, overturned the previous practice of the Federal Employment Agency in calculating short-time work compensation for cross-border workers, thereby eliminating a disadvantage for French cross-border workers receiving German short-time work compensation.
Further information can be found at www.anwalt.de and www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Hamburg Higher Social Court, Judgment of 22 June 2021 – L 4 AS 215/20 – Appeal pending before the Federal Social Court (BSG) B 4 AS 58/21 R
Basic income support for job seekers – final decision after provisional benefit approval – obligation to provide proof of facts relevant to benefits – information on legal consequences – incomplete documentation after the deadline has expired – zero benefit payment – submission of bank statements only during legal proceedings
Guiding principle
1. Documents submitted in objection proceedings to prove facts relevant to benefits must be taken into account in final decisions pursuant to Section 41a Paragraph 3 of the German Social Code, Book II (SGB II) (see Federal Social Court (BSG) judgment of September 12, 2018 – B 14 AS 4/18 R and B 4 AS 39/17 R = BSGE 126, 294 = SozR 4-4200 § 41a No. 1). The Federal Social Court left open the question of whether evidence submitted after the final decision must still be taken into account. (Paragraph 27)
2. In the opinion of the Senate, Section 41a Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II) does not have any substantive preclusive effect. Therefore, bank statements and receipts concerning business income and expenses submitted only during the legal proceedings are not irrelevant and must still be taken into account. (Paragraph 28)
Source: www.landesrecht-hamburg.de
2.2 – LSG Saxony-Anhalt, decision of 29.09.2021 – L 5 AS 275/21 B
Legal fees
Principle
1. If a lawyer represents several co-litigants, not all of whom are entitled to legal aid, there is indeed a claim for remuneration in the amount of the full fees against the public treasury. However, the increase pursuant to No. 1008 of the German Lawyers' Fees Act (RVG) is determined only by the number of co-litigants for whom legal aid has been granted.
2. If the opposing party has a claim for partial reimbursement of extrajudicial costs, the lawyer must, pursuant to Section 58 Paragraph 2 of the German Lawyers' Fees Act (RVG), allow the payments received to be credited against the claim. However, this only applies insofar as these payments relate to the plaintiffs he represents who are eligible for legal aid.
3. Neither the determination of the claim for compensation against the public treasury nor the crediting of payments received is carried out on a per capita basis (here: granting of legal aid for two out of three plaintiffs).
Source: www.landesrecht.sachsen-anhalt.de
2.3 – LSG Saxony-Anhalt, decision of 10.09.2021 – L 4 AS 381/21 B
Matters under the German Social Code, Book II (SGB II), reminder notice, setting of reminder fees
Guiding principle:
Both the issuing of a reminder notice and the imposition of a reminder fee are matters that are legally related to administrative activity under the German Social Code, Book II (SGB II). They are not enforcement measures.
Source: www.landesrecht.sachsen-anhalt.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Bremen Social Court, judgment of August 16, 2021 (S 22 AS 754/20):
Guiding principle Dr. Manfred Hammel:
A concept compiled by the job center to specify the appropriateness of housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which, for example, leads to several housing market types with different appropriateness values within a comparison area based on a "cluster analysis", does not meet the requirements for affirming a conclusive concept.
There is no legal justification for such a further division of cities and municipalities within a comparison area.
The formation of housing market types does not change the conditions for the formation and the legal consequences of a comparison area.
Given the different appropriateness values for net rent depending on the housing market type, and because a move within the comparison area is permissible in the case of a cost reduction request (§ 22 para. 1 sentence 3 SGB II), such an order could lead to a move from a housing market type with lower appropriateness values to one with a higher standard and thus ultimately to an increase in the expenses to be financed by the job center.
The formation of individual housing market types always requires an objective justification for this process.
If a corresponding, abstract value of appropriateness is legally contestable, the job center must always be given the opportunity to address these legal objections by providing statements – possibly after further investigations of its own.
A lack of data representativeness, an inadequate reflection of the actual conditions of the local rental housing market, results when the job center predominantly recorded rents from housing associations, and rents from smaller and private landlords are not sufficiently considered in the responses collected by the SGB II agency. This procedure does not accurately represent the entire housing market, including all landlord groups.
The area of the city of Bremen constitutes an acceptable comparison area for the assessment of the appropriateness of accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in order to provide a sufficiently large area of residential development which, due to its spatial proximity, its infrastructure and in particular its transport connections, forms an overall homogeneous living and residential area.
However, it is an essential prerequisite for the coherence of an adequacy concept that the entire comparison area is covered and that social segregation does not lead to the formation of "hotspots".
An impermissible separation of individual housing types occurs when it is stipulated that, with regard to rents for social housing, these accommodation costs must generally be recognized in their actual amount. This leads to an unlawful preferential treatment of social housing.
If a job center is unable to fully address objections raised regarding its housing allowance concept – even based on its own investigations – despite being granted a sufficient period for comment, then this constitutes a failure of local intelligence gathering capabilities. Consequently, the job center must always recognize the actual gross rent (excluding utilities) up to the maximum limits stipulated in Section 12 of the Housing Allowance Act (WoGG), plus a safety margin of ten percent as per Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
As a necessary prerequisite for a cost reduction request pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), a job center must inform employable benefit recipients in particular about the existing limits of reasonableness and provide comprehensive knowledge of necessary cost reduction measures, and the recipients of unemployment benefit II must have the subjective possibility of reducing their accommodation-related expenses.
Note from the editor of Tacheles e. V.:
Rent limits for recipients of benefits under the German Social Code, Book II (SGB II) in the city of Bremen from March 2017 to June 2021
Principle (www.sozialgericht-Bremen.de)
The rent ceilings set in the administrative directive of the Senator for Social Affairs, Children, Youth and Women of the Free Hanseatic City of Bremen on § 22 SGB II, §§ 35, 36 SGB XII and AsylbLG for the period March 2017 to June 2021 are not based on a conclusive concept within the meaning of the case law of the Federal Social Court.
The lack of consistency arises from the fact that the rental market in the comparison area does not adequately reflect the private housing market and that different values of appropriateness in the comparison area were regulated by location-based surcharges and the preferential treatment of social housing.
Accordingly, for the aforementioned period of validity, the gross rent to be borne by the Bremen Job Center pursuant to Section 22 Paragraph 1 Sentence 1 of the Second Book of the Social Code (SGB II) is not to be limited to the values stipulated therein.
Since there is a lack of local information available during this period, the values of Section 12 of the Housing Benefit Act (WoGG) in its currently valid version, increased by a safety margin of 10%, must be used to determine the upper limit of the appropriate gross rent.
Legal tip:
See also Bremen Social Court, judgment of 16.08.2021 – S 70 AS 2145/19
Source: dejure.org and www.sozialgericht-bremen.de
Note from attorney Fabian Rust, 28757 Bremen-Vegesack:
After the MOG (Municipal Rent Control Act) was already overturned in the city of Bremen until March 2017, it has now also been overturned for the period from March 2017 to June 2021. Since July 2021, a new concept for rent control has been in place in Bremen, which in my view is also not convincing.
Note from the editor of Tacheles e. V.:
Press release from the Bremen Social Court dated November 5, 2021
Rent ceilings for recipients of benefits under the German Social Code, Book II (SGB II) in the city of Bremen during the period from March 2017 to June 2021 were not lawful
Further information: www.sozialgericht-bremen.de
3.2 – Hildesheim Social Court, Judgment of 30 September 2021 – S 26 AS 1381/20
Basic income support for job seekers – multiple deductions for insurance allowance – back payment of child benefit
When calculating retroactive child benefit payments, the insurance allowance must be taken into account for each month (Editor of Tacheles e. V.).
Guiding principle of the editor of Tacheles e. V.:
Even if child benefit is paid in a single month as a back payment for several months, the insurance allowance of €30 must be deducted for each monthly amount (see the legal note of the Federal Social Court in the oral hearing (B 4 AS 78/20 R, hearing report of June 30, 2021)).
Note:
See also the article by lawyer Dr. Robin von Eltz.
Benefits under the German Social Code, Book II (“Hartz IV”): The crediting of a back payment of child benefit
1. Practical Implications:
If a family receives benefits under the German Social Code, Book II (SGB II, also known as "Hartz IV"), and a new child is born, an application for child benefit is usually submitted directly to the family benefits office. However, it often takes several months for the family benefits office to approve the child benefit. In these cases, a retroactive child benefit payment is made because the family benefits office pays the child benefit retroactively for the months following the application.
The job center will first apply the current child benefit and any back payment to the child in question. If the current child benefit and back payment exceed the child's needs, the excess will be applied to the parent entitled to the child benefit.
2. Decision of the Hildesheim Social Court of 30.09.2021 – S 26 AS 1381/20
The Hildesheim Social Court has now ruled in a decision obtained by our law firm that when crediting the child benefit arrears to the parent entitled to child benefit, the insurance allowance of €30 must be deducted not only once, but several times, namely for each month of the arrears payment.
In this case, the back payment of child benefit for the months of February to April was made together with the current back payment of child benefit for May, totaling €940. The job center had only deducted the insurance allowance of €30 once for May. The court has now ruled that the insurance allowance of €30 must also be taken into account for the months of February to April, meaning a further €90 must be deducted before the allowance is applied.
3. Further reasoning of the court can be found
at www.anwalt.de and www.rechtsanwalt-von-eltz.de
Legal tip from the editor of Tacheles e. V.:
See also LSG BB, judgment of 17.09.2015 – L 31 AS 1571/15 and regarding back payments of sick pay: SG Cottbus, court order of 23 January 2018 (file no.: S 31 AS 1324/15):
Guiding principle by attorney Dr. Jens Lehmann:
The insurance allowance is to be deducted per month in the case of "accumulated" back payments of sick pay: Principles of the Federal Social Court (BSG), 17.07.2014 – B 14 AS 25/13 R, apply regardless of the type of income.
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – SG Gießen, Judgment of 05.11.2021 – S 20 AL 70/21
AL, general administrative law, social administrative law
Principle:
A party to a proceeding has no substantive legal right to inspect the electronic administrative file of the authority involved in the proceeding if the court has already granted him full electronic access to the file.
In any case, a party involved in electronic administrative acts has no right to receive a paginated version.
A party involved has no right to receive a paper copy of an electronic administrative act.
Source: www.rv.hessenrecht.hessen.de
5. Decisions on asylum law and AsylBL
5.1 – Social Court Bremen, decision of 23 April 2021 – S 39 AY 44/21 ER
Restriction of benefits § 1a para. 3 AsylblG
Principle (www.sozialgericht-bremen.de):
In the case of benefit restrictions pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylblG), in addition to the necessary time limitation pursuant to Section 14 AsylblG, the constitutional requirements from the judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 must also be observed (cf. in this respect LSG Saxony, decision of March 3, 2021 – 8 AY 8/20 B ER).
Source: www.socialcourt-bremen.de
5.2 – LSG Bayern, decision of 23.08.2021 – L 19 AY 72/21 B ER
Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is unconstitutional – inter alia with reference to the Federal Constitutional Court's decision of May 12, 2021 – 1 BvR 2682/17 (a provision that excludes socio-cultural needs is unconstitutional) – therefore, in expedited proceedings, benefits under Section 3 must be granted
Source: Attorney Volker Gerloff
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Note on: BSG 4th Senate, Judgment of 30 June 2021 – B 4 AS 76/20 R
Author: Dr. Andreas Jüttner, RiSG as permanent representative of the director
Consideration of the tenant's contributions to a private liability insurance policy within the framework of the KdUH (costs of accommodation and heating)
Guiding principle for the note:
The costs of private liability insurance are to be taken into account as accommodation costs pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the landlord makes proof of such insurance a condition.
Continue on Juris
6.2 – Choice between integration assistance and long-term care assistance – Commentary on the decision of the Lower Saxony-Bremen State Social Court of 3 May 2021, L 8 SO 47/21 B ER
In this article, author Roland Rosenow discusses the decision of the Lower Saxony-Bremen State Social Court (LSG Niedersachsen-Bremen) of May 3, 2021, case number L 8 SO 47/21 B ER. The court ruled that, within the framework of the principle of prioritizing self-help (§ 2 para. 1 SGB XII), there is no "obligation" to apply for integration assistance. The court's reasoning is based, among other things, on the UN Convention on the Rights of Persons with Disabilities and the Federal Constitutional Court's (BVerfG) statements regarding sanctions in social law. The author welcomes the decision and focuses in particular on its practical consequences for choosing between two equally comprehensive benefit systems and the requirements for preliminary legal protection.
Source: www.reha-recht.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
