Tacheles Legal Case Law Ticker Week 52/2021

1. Decisions of the Federal Social Court on basic income support under the (SGB II)

1.1 – Federal Social Court (BSG) judgment of 14 December 2021 – B 14 AS 27/20 R

Basic income support for job seekers – participation in social and cultural life – political youth association – cooperation agreement

No SGB II subsidy for holiday camps organized by political parties

Guidance note from the editor of Tacheles e. V.:
1. The youth organization of the Marxist-Leninist Party (MLPD) is not a suitable provider of summer camps under the Social Code (SGB II).

Source: www.bsg.bund.de

1.2 – Federal Social Court (BSG) judgment of 14 December 2021 – B 14 AS 21/20 R

SGB II subsidy for holiday camps organized by political parties?

Job center must promote participation in youth camp organized by political parties

1. Children and young people receiving Hartz IV benefits can receive a financial subsidy for participating in a holiday camp organized by a political party or its youth organization.

2. However, no money will be given if the organizer of the leisure activity does not clearly support the free and democratic basic order of Germany (orientation aid www.evangelisch.de)

Source: www.evangelisch.de

2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)

2.1 – LSG Hessen, judgment of November 12, 2021 – L 6 AS 123/21

Guiding principle
on the transitional continued consideration of the additional needs for employable disabled benefit recipients after completion of the measure on the basis of Section 21 Paragraph 4 Sentence 2 SGB II and the related procedural issues.

Source: www.rv.hessenrecht.hessen.de

2.2 – LSG Berlin-Brandenburg, judgment of September 22, 2021 – L 18 AS 1513/18

Unemployment benefit II – Income – Self-employment – Tax deductions – Advertising expenses

Guidance note by the editor of Tacheles e. V.
1. After determining the business income, the amount of which is used to calculate the income to be considered under the German Social Code, Book II (SGB II), the necessary expenses actually incurred during the benefit period are deducted from the business income in a further step, with the exception of the amounts to be deducted according to Section 11 Paragraph 2 of the SGB II (old version), irrespective of tax regulations (Section 3 Paragraph 2 Sentence 1 of the German Regulation on Unemployment Benefit II (Alg II-V) (old version)). In the equal interaction of the two regulations, such expenses are therefore not "business expenses" within the meaning of Section 3 of the German Regulation on Unemployment Benefit II (Alg II-V) (old version) that are simultaneously deductible amounts according to Section 11 Paragraph 2 of the SGB II (old version) (Federal Social Court (BSG), judgment of June 5, 2014 – B 4 AS 31/13 R, Schmidt in Eicher, SGB II, 3rd edition 2013, Section 11b marginal note 23 "Gross profit from business income and purely business expenses").

2. The amounts resulting from Section 11 Paragraph 2 of the German Social Code, Book II (SGB II aF), are only to be deducted from the income distributed monthly according to Section 3 Paragraph 4 of the German Regulation on Unemployment Benefit II (Alg II-V aF) in a final step. However, the necessary expenses associated with generating income from self-employment according to Section 11 Paragraph 2 Sentence 1 Number 5 of the German Social Code, Book II (SGB II aF), include only those business expenses that are attributable to the "private sphere" of the benefit recipient, such as regular travel between their residence and their place of business.

3. Neither the advertising expenses claimed by the plaintiff nor any other items in his final declaration of July 7, 2021, reveal such a private connection; rather, they are to be classified as purely business expenses and are therefore to be taken into account as reducing income in accordance with Section 3 Paragraph 2 of the former Regulation on Unemployment Benefit II (AlgII-V aF) when calculating the allowance pursuant to Sections 11 Paragraph 2 Sentence 1 No. 6, 30 of the former Regulation on Unemployment Benefit II (SGB II aF).

Source: gesetze.berlin.de

2.3 – Schleswig-Holstein Higher Social Court, Judgment of 11 November 2021 – L 6 AS 26/20 – Appeal allowed

Principle
1. Even in the case of a subsequent application for unemployment benefit II pursuant to Section 28 of the German Social Code, Book X (SGB X), BAföG (Federal Training Assistance Act) must be taken into account as income when calculating SGB II benefits, even though the entitlement has retroactively ceased.

2. If an obligation to repay ongoing income arises only after the month of receipt (here through the revocation and recovery of a BAföG grant decision underlying the past), it remains considered income for the month of receipt (cf. BSG, judgment of 23.08.2011 – B 14 AS 165/10 R).

Source: www.gesetze-rechtsprachung.sh.juris.de

3. Decisions of the social courts on basic income support for job seekers (SGB II)

3.1 – 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 a hardship additional need (§ 21 para. 6) according to the SGB II.

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3.2 – Social Court Berlin, Judgment of November 4, 2021 – S 155 AS 4864/19

Crediting of a tax refund against ALG II – taxes based on an income estimate and through account seizure.

Guiding principle of the editor of Tacheles e. V.:
1. Tax refunds are income; this crediting is not at the discretion of the job center, but is mandatory by law.

2. The fact that the payment to the tax office was based on an income estimate and was made by garnishment of the bank account does not change this.

Source: www.dgbrechtsschutz.de

4. Decisions of the State Social Courts on Social Assistance (SGB XII)

4.1 – LSG Hessen, decision of 09.12.2021 – L 4 SO 218/21 B ER

Social assistance, rehabilitation and participation of people with disabilities

Guiding principle
: On the question of the suitability and necessity of a (home) sign language course for a 4-year-old child, here affirmed.

Source: www.rv.hessenrecht.hessen.de

Note:
Home sign language courses for four-year-olds with language development disorders are to be granted as a service for social participation.

To promote communication, integration assistance services also include a home sign language course, in which sign language is taught in the home environment.

People whose language skills are impaired with regard to word finding or articulation may also be eligible.

In the case of a four-year-old child with a speech and language disorder, the Fourth Senate of the Hessian State Social Court affirmed a corresponding claim in preliminary legal proceedings. Learning sign language as an additional means of communication would facilitate the child's participation in community life and alleviate their psychological burden.

Source: Press release of the LSG Darmstadt No. 14/2021

5. Decisions on asylum law and asylum seekers' benefits

5.1 – SG Bayreuth, decision of 21.12.2021 – S 13 AY 45/21 ER

Guidance by Attorney Volker Gerloff:
When applying Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) by the social welfare office, full benefits under Section 3 of the AsylbLG must be granted in expedited proceedings – due to constitutional concerns – even though the conditions of Section 1a Paragraph 3 of the AsylbLG are met.

Source: Twitter

6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes

6.1 – Corona pandemic: Hard times for the self-employed – Without income there is no sick pay

If self-employed persons who are primarily self-employed had no positive income before becoming incapacitated for work, they are not entitled to sick pay in the event of incapacity for work.

This also applies if the reason for the loss of income was a decline in orders due to the coronavirus pandemic. Receiving government coronavirus aid only changes this if it results in a profit after deducting all operating expenses.

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6.2 – Early retiree must repay housing benefit

A recipient of housing benefit cannot invoke protection of legitimate expectations and may not keep the housing benefit if, after the housing benefit has been granted, he subsequently receives a reduced earning capacity pension for the period for which housing benefit was granted.