1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Saxony-Anhalt, decision of 14.09.2021 – L 2 AS 500/21 B ER
Matters under the German Social Code, Book II (SGB II) (AS) – Consideration of child benefit and child benefit back payments
Principle
1. The portion of child benefit that is not needed to cover the children's needs as determined under Book II of the German Social Code (SGB II) remains income of the person entitled to child benefit. This does not constitute maintenance payments from the children to the parents, because the crediting of child benefit against the children's needs under SGB II is merely an allocation rule. Without this allocation rule, the child benefit would be income of the person entitled to it.
2. Child benefit that the person entitled to child benefit receives for a child living outside the household and does not pass on to the child as maintenance remains their income.
3. Child benefit payments made for past months are considered one-off payments and must be taken into account over six months, provided that the child benefit recipient's needs in the month of receipt, or – if Section 11 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II) applies – in the month of crediting, would be eliminated by considering the full back payment.
Source: www.landesrecht.sachsen-anhalt.de
1.2 – LSG Saxony-Anhalt, decision of 13.09.2021 – L 2 AS 446/21 B ER
Matters under the German Social Code, Book II (SGB II) (AS) – Exclusion of benefits for foreigners – Exception for permanent residence – habitual residence – Incomplete decision
Principle
1. If the social court overlooks a claim in preliminary legal protection proceedings and the applicant has not applied for a supplementary decision in accordance with Section 140 of the Social Court Act (SGG) within the prescribed time limit, the omitted claim ceases to be pending.
2. A five-year habitual residence in Germany within the meaning of Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) does not necessarily require continuous registration with a registration authority for the entire period. According to Section 7 Paragraph 1 Sentence 5 of the SGB II, registration is merely a prerequisite for the commencement of the five-year period.
Source: www.landesrecht.sachsen-anhalt.de
Legal tip from the editor of Tacheles e. V.:
(see also LSG NRW, decision of 18.08.2021 – L 21 AS 1016/21 B ER; LSG Berlin-Brandenburg, judgment of 11 May 2020 – L 18 AS 1812/19; LSG Hamburg, decision of 20 June 2019 – L 4 AS 34/19 B ER; LSG Nordrhein-Westfalen, decision of 23 April 2018 – L 7 AS 2162/17 B ER; contra: Hessisches LSG, decision of 16 October 2019 – L 7 AS 343/19 B ER).
1.3 – LSG Saxony-Anhalt, decision of 06.10.2021 – L 4 AS 516/20 B
Matters under the German Social Code, Book II (SGB II) (AS)
Principle:
The need for legal protection in an application for preliminary legal protection is not present if the applicant has not contacted the respondent beforehand. An assurance given by the respondent to cover the costs of accommodation and heating does not eliminate this requirement.
Source: www.landesrecht.sachsen-anhalt.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Oldenburg, judgment of November 16, 2021 – S 37 AS 1268/19
Hartz IV: Electronic dictionary from the job center
Guiding principle of the editor of Tacheles e. V.:
The job center is obliged to reimburse a student for the costs of an electronic dictionary as an additional need (§ 21 para. 6) according to the SGB II.
The decision is not yet legally binding. Due to its fundamental importance, the Social Court has expressly granted leave to appeal its decision to the State Social Court.
Source: Press release from SG Oldenburg dated November 24, 2021
2.2 - SG Berlin, judgment of November 19, 2021 - S 129 AS 4900/20
Statute of limitations for claims for reimbursement under Section 328 of the German Social Code, Book III
Principle by Attorney Kay Füßlein
1. A claim for reimbursement under Section 40 of the German Social Code, Book II (SGB II) in conjunction with Section 328 of the German Social Code, Book III (SGB III) also becomes statute-barred four years after the end of the calendar year in which the final assessment notice became unappealable, in accordance with the corresponding application of the regulation in Section 42 Paragraph 2 Sentence 3 of the German Social Code, Book I (SGB I) in conjunction with Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) (cf. Higher Social Court of Saxony, 07.01.2021 – L 7 AS 726/20 B ER).
2. Reminder letters do not have a statute of limitations-suspending effect.
3. Accordingly, claims for reimbursement by the JobCenter always become time-barred after four years; an exception exists only if an "enforcement order" has been issued, which, however, has almost never been the case in practice.
Source: Attorney Kay Füßlein
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Saxony-Anhalt, Judgment of 21.09.2021 – L 2 AL 36/18
Matters concerning the Federal Employment Agency (AL), shortened qualifying period, employment contract for the film industry and renewal clause
Principle
1. If the assessment of whether a short-term employment exists within the meaning of Section 142 Paragraph 2 Sentence 1 No. 1 SGB III is based on a prognosis, the decisive factor is whether the actual duration of employment was foreseeable.
2. If the employment contract and collective bargaining agreement for a set production manager on a film production stipulate that overtime and vacation entitlements extend the employment relationship after filming has ended, the resulting duration of the employment relationship is foreseeable under typical industry conditions. This does not apply if the extension is based on special circumstances that were not foreseeable at the time the contract was concluded.
Source: www.landesrecht.sachsen-anhalt.de
3.2 – LSG Berlin-Brandenburg, Judgment of 11 March 2021 – L 14 AL 20/18 – Appeal pending before the Federal Social Court (BSG) – B 11 AL 12/21 R
Guidance by Attorney Dr. Jens-Torsten Lehmann:
Calculation of the Job Center's reimbursement claim against the Federal Employment Agency according to § 104 SGB X: daily or monthly comparison?
Is the reimbursement claim of the secondarily liable benefit provider excluded under Section 104 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X), if the claim against this provider exceeds the claim against the primarily liable benefit provider?
Source: ra-jtlehmann.de
Note from the editor of Tacheles e. V.:
also printed in the current issue of info, i.e., issue 6.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Hessen, Judgment of 13 October 2021 – L 4 SO 217/19
Lawful crediting of annual premium refunds from private health insurance as income (guideline by the editor of Tacheles e. V.)
Principle:
A premium refund from a private health insurance company, structured as profit sharing, whose underlying expenses are not reasonable according to Section 32 Paragraph 5 Sentence 1 of the German Social Code, Book XII (SGB XII) in the version applicable until December 31, 2017, and which accrued to the plaintiff during the period of benefit receipt, constitutes income within the meaning of Section 82 Paragraph 1 Sentence 1 of the SGB XII. It is not a refund of an advance payment within the meaning of Section 82 Paragraph 1 Sentence 2 of the SGB XII, even if the difference between the refund and the benefits under Section 32 of the SGB XII was paid from the standard allowance.
Source: www.rv.hessenrecht.hessen.de
4.2 – LSG Munich, Judgment of 21 October 2021 – L 8 SO 121/21
Title:
Rent claim, lease agreement, claim, social welfare agency, entitlement, higher benefits, basic income support, Down syndrome
Social assistance:
No increase in social assistance entitlements when concluding a purely formal tenancy agreement between family members.
Guiding principles:
1. The assumption of a serious rent claim is to be denied if a tenancy agreement is ultimately only intended to establish claims against the social welfare provider.
2. A restriction of the application of Section 133b SGB XII is possible if the current law would be more favorable for the person entitled to basic income support.
Source: www.gesetze-bayern.de
4.3 – LSG NRW, Judgment of 12.08.2021 – L 9 SO 116/20 – Appeal allowed
Social assistance – Integration assistance – Support for appropriate schooling – Claiming travel expenses for the school commute – Necessity of the costs – Disability-relatedness of the costs – Referral to attending a school near the place of residence
Guidance by the editor of Tacheles e. V.
1. Travel expenses to school are generally covered by the benefits catalog of integration assistance. Travel expenses for the school commute can be considered support for appropriate schooling (Federal Administrative Court judgments of September 10, 1992 – 5 C 7/87 and of May 22, 1975 – 5 C 19.74; Higher Social Court of Baden-Württemberg judgment of June 29, 2017 – L 7 SO 5382/14; regarding the financing of an accompanying person, Higher Administrative Court of North Rhine-Westphalia decision of November 25, 2005 – 19 E 808/05; regarding the reimbursement of travel expenses for attending an inclusive kindergarten, Federal Social Court judgment of February 27, 2020 – B 8 SO 18/18 R).
2. Decisive for the question of which school is suitable within the framework of special education support is the allocation within the framework of the AO-SF, which is also binding for the social welfare provider (BSG judgments of 18.07.2019 – B 8 SO 2/18 R and of 23.08.2013 – B 8 SO 10/12 R).
3. Finally, the fact that school attendance itself is not a form of integration assistance does not preclude a claim. While case law regularly stipulates that travel expenses are necessary for an otherwise approved integration assistance to ensure adequate schooling (e.g., Federal Administrative Court judgments of September 10, 1992 – 5 C 7/87 and of May 22, 1975 – VC 19.74; for attendance at an inclusive kindergarten, Federal Social Court judgment of February 27, 2020 – B 8 SO 18/18 R), this is not a mandatory requirement (Higher Social Court of Baden-Württemberg judgment of June 29, 2017 – L 7 SO 5382/14).
4. To determine the upper limit of the reimbursable amount per kilometer, reference must be made to the provision of Section 5 Paragraph 2 Sentence 1 of the Federal Travel Expenses Act (BRKG). This provision governs the reimbursement of travel expenses for federal employees (Section 1 BRKG) and stipulates: "If there is a significant official interest in the use of a motor vehicle, the mileage allowance amounts to 30 cents per kilometer traveled." This provision is applicable by analogy because it is a federal regulation – just like the German Social Code, Book XII (SGB XII) and Book IX (SGB IX) – and the "significant official interest" required by this provision is comparable to the disability-related necessity of using a car. According to the case law of the Federal Social Court (BSG), recourse to the values of the Federal Travel Expenses Act (BRKG) is also permissible for determining costs for the use of a car (see BSG judgments of 27.02.2020 – B 8 SO 18/18 R and of 04.06.2014 – B 14 AS 30/13 R).
Source: www.justiz.nrw.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Work opportunity – Reimbursement for work performed
If the integration administrative act by which a work opportunity was assigned pursuant to Section 16d of the German Social Code, Book II (SGB II), was unlawful, the person in need of assistance is entitled to a value-based compensation from the basic income support provider, according to a ruling by the Hamburg Higher Social Court (LSG Hamburg), although the provider's benefits will be taken into account.
Comment by attorney Prof. Dr. Hermann Plagemann, Plagemann Rechtsanwälte Partnerschaft mbB, Frankfurt am Main
Practical Note
1. Regarding the illegality of the integration administrative act, the judgment is based on the Federal Social Court's (BSG) judgment of March 21, 2019 (BeckRS 2019, 14304). Nevertheless, the reasoning is not convincing: The time limit imposed on the administrative act is a supplementary provision within the meaning of Section 32 of the German Social Code, Book X (SGB X), which can be challenged separately. The activities at issue here were performed within the first six months of the integration administrative act. For this period of six months, the integration administrative act was lawful. The lack of discretionary power, which the court found lacking, concerns the period thereafter. However, if the time limit can be challenged separately, then the reverse must also apply: The excessively long time limit does not render the entire decision unlawful, but only to the extent that the statutory time limit was unlawfully exceeded.
2. The Regional Social Court (LSG) based its assessment on an hourly rate of €9.76 for the work. This did not correspond to the minimum wage in 2010, but was based on a collective bargaining agreement. However, if the work performed during the work opportunity does not constitute employment, one must ask how such a collective bargaining agreement can be applied to this activity. It is obvious that the job center handling this case did not actually gain any financial advantage from the plaintiff's work.
3. The plaintiff, born in 1953, now receives an old-age pension. Should he also be entitled to basic income support pursuant to Sections 41 et seq. of the German Social Code, Book XII (SGB XII), the question arises whether the amount now paid retroactively should be considered income. This is at least conceivable under Section 82 Paragraph 3 of the SGB XII.
Hamburg Higher Social Court, Judgment of 29 April 2021 – L 4 AS 177/17, BeckRS 2021, 19993
Source: rsw.beck.de
5.2 – Termination due to 3G – is there a risk of a waiting period for unemployment benefits?
An article by employment law specialist Alexander Bredereck and Dr. Attila Fodor, Berlin and Essen.
Those who cause their own unemployment may have part of their unemployment benefits reduced by the Federal Employment Agency; this usually affects the first 12 weeks. This waiting period is regularly imposed in cases of voluntary resignation and usually also in cases of a termination agreement.
In the event of termination by the employer, the waiting period is usually only applicable if the employee has committed a serious breach of contract, such as theft in the workplace.
Could refusing vaccination at 3G and subsequently being dismissed also trigger a waiting period for unemployment benefits? Employment protection expert Attorney Bredereck comments:
I mean, given the current situation, absolutely not!
Because: continue at www.anwalt.de
We wish all our readers a Merry Advent season. Stay healthy and well.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
