1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of June 30, 2021 – B 4 AS 70/20 R
Social court proceedings – inadmissibility of the appeal – recurring or ongoing benefits for more than one year – review proceedings for multiple benefit periods – unemployment benefit II
Guiding principle of the editor of Tacheles e. V.:
1. Recurring or ongoing benefits for more than one year within the meaning of Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG) are only granted in matters of the Social Code, Book II (SGB II), if the individual benefit period covers more than one year.
2. This also applies within the framework of a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X).
Source: www.rechtrecht-im-internet.de
1.2 – BSG, judgment of 08/05/2021 – B 4 AS 26/20 R
Basic income support for job seekers – Exclusion from benefits due to residence in a facility for the execution of judicially ordered deprivation of liberty – Preventive detention in a psychiatric hospital – Relaxation of detention conditions – Permanent leave to live in one's own apartment – Termination of placement
SGB II entitlement during leave of absence in secure psychiatric care
Guiding principle of the editor of Tacheles e. V.
1. An applicant who is residing in his own apartment as part of a permanent leave of absence from a secure psychiatric facility is not subject to the exclusion from benefits under Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II).
2. An institution within the meaning of Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II) exists only if the accommodation of the eligible person is so closely assigned to the legal and organizational sphere of the institution's operator that it is to be regarded as part of the institution as a whole, whereby the connection to a specific building must be established. Such a close connection no longer existed in the case of the plaintiff's "trial stay" in an apartment he rented, which could not be spatially assigned to any operator.
Source: www.rechtrecht-im-internet.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG North Rhine-Westphalia, 29.06.2021 – L 2 AS 2217/17 – Appeal pending before the BSG – B 14 AS 63/21 R
Basic income support for job seekers – exclusion from benefits due to placement in an inpatient facility or in a facility for the execution of judicially ordered deprivation of liberty – drug-addicted offender – four-month inpatient detoxification treatment immediately following previous placement in a correctional facility – total duration of placement in both facilities exceeding 6 months – Section 7 Paragraph 4 Sentence 3 Number 1 of the German Social Code, Book II (SGB II) does not apply
Under what conditions is there an exclusion from benefits pursuant to Section 7 Paragraph 4 Sentence 1 or Sentence 2 of the German Social Code, Book II (SGB II), if a person in need of assistance begins inpatient drug therapy pursuant to Section 35 of the German Narcotics Act (BtMG) 1981 after being released from prison?
Guiding principle of the editor of Tacheles e. V.:
No unemployment benefit II for a person in need of assistance during inpatient drug therapy after imprisonment.
Guidance note from the editor of Tacheles e. V.:
1. Eligibility for benefits under the German Social Code, Book II (SGB II), is excluded in cases of imprisonment. Therefore, a change in the benefit system would always occur in the case of imprisonment followed by drug therapy under Section 35 of the German Narcotics Act (BtMG). This supports the assumption of an exclusion from benefits at least when imprisonment and drug therapy – as in this case – are projected to last at least six months together. Only in this way is the purpose of the regulations fulfilled: to prevent a short-term switch between the two systems and to achieve clear distinctions.
2. The Senate therefore does not follow the differing opinion of the Lower Saxony State Social Court, which denied a change in the system in this respect on the grounds that the plaintiff had not received any benefits under Book XII of the German Social Code immediately beforehand (see Lower Saxony-Bremen State Social Court, judgment of 26 February 2019, L 11 AS 474/17, appeal was dismissed as inadmissible for formal reasons, Federal Social Court, decision of 22 May 2020 – B 4 AS 27/20 B).
Source: www.justiz.nrw.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).
Legal tip from the editor of Tacheles e. V.:
(cf. the presentation of the different legal opinions by the Berlin-Brandenburg State Social Court, decision of January 31, 2018, L 39 SF 186/16 BE [12 f.]).
Source: www.landesrecht.sachsen-anhalt.de
2.3 – LSG Munich, Judgment of 13.02.2020 – L 7 AS 396/19
Title:
Basic income support for job seekers: Heating oil supplier has no claim against the job center for payment of an invoice addressed to a basic income support recipient
Guiding principles:
A heating fuel supplier who delivers to a recipient of benefits under the German Social Code, Book II (SGB II), has no claim against the job center for payment of benefits granted for the fuel, unless the grant notice specifies a direct claim for payment for the supplier. (Paragraph 22)
Section 22, paragraph 7 of the German Social Code, Book II (SGB II) only establishes a different entitlement to receive payments and does not create an independent legal claim for the recipient of payment against the job center for payment of invoices addressed to benefit recipients. (Paragraph 22) (Editorial note)
Source: www.gesetze-bayern.de
Note from the editor of Tacheles e. V.:
The “defrauded” heating equipment dealer – commentary on the BayLSG decision of February 13, 2020 – L 7 AS 396/19 by Josef Berchtold, published in ASR issue 2 2021
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Duisburg, Judgment of 30.11.2021 – S 49 AS 1815/19
Regarding the existence of a claim for compensation under Section 34 of the German Social Code, Book II (SGB II), this claim is denied here
Guiding principle of the editor of Tacheles e. V.:
1. The beneficiary is not liable for damages even for the culpable actions of a third party.
2. If an applicant in need of assistance transfers the payout amount from the Riester pension to his niece, this does not constitute socially unacceptable behavior.
Source: www.justiz.nrw.de
Official headnote (beck-online):
Section 34 paragraph 1 of the German Social Code, Book II (SGB II) establishes a "tort-like" (Federal Social Court [BSG], judgment of August 29, 2019 – BSG file number B14AS4918R B 14 AS 49/18 R, juris, para. 25 with further references; Grote-Seifert, in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 34, para. 23) secondary claim for compensation by the basic income support provider against the adult benefit recipient for culpably, socially unjustifiably, and without grounds obtained or continued primary benefits under the SGB II, which were themselves lawfully payable by the authority in the first place. (para. 28)
Editorial note (beck-online):
In order to avoid an (impermissible) expansion of the scope of this exception, the beneficiary's liability for damages under Section 34 of the German Social Code, Book II (SGB II) is limited to so-called socially unacceptable behavior. (Paragraph 27)
3.2 – SG Bayreuth, decision of 03.12.2021 – S 13 AS 453/21 ER
Part-time studies – entitlement to ALG 2 (unemployment benefit II)?
Guiding principle by the editor of Tacheles e. V.:
Even part-time students who are not eligible for BAföG funding can claim unemployment benefit II (following LSG Hessen, decision of 15.12.2020 – L 9 AS 535/20 B ER).
Source: Attorney Christopher Richter LLM Eur – published on www.anwalt.de SG Bayreuth: Hartz IV also possible for part-time students!
Sources: www.anwalt.de and www.anwaltskanzlei-wue.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Bayern, judgment of July 20, 2021 – L 10 AL 84/20
Labor court settlement, assessment wage, back payment of wages, commencement of interest accrual, interest
Interest on a back payment of unemployment benefits (ALG), here affirmed
Guidance note from the editor of Tacheles e. V.:
1. The regulation governing the period for which unemployment benefits are paid must be distinguished from the question of when the higher claim becomes due. Interest only begins to accrue once the prerequisites for the respective benefit claim have been met, so that such a claim cannot arise and become due retroactively, because otherwise there would be an obligation to pay interest, which is not intended by law, even for periods in which the necessary prerequisites for entitlement were not yet met (cf. Lower Saxony-Bremen State Social Court, judgment of June 20, 2013 – L 8 SO 222/10).
2. There is no violation of the principle of equality under Article 3 of the Basic Law, because a comparison between a subsequent (partial) payment of wages and a case where the wages have already been paid in full involves different situations. Furthermore, the provision in Section 131 Paragraph 1 of the German Social Code, Book III (SGB III aF) or Section 151 Paragraph 1 of the German Social Code, Book III (SGB III nF), and the administrative simplification stipulated therein, which serves the interests of the unemployed by enabling a quick calculation and payment of unemployment benefits, justifies the different treatment of these situations.
3. The assumption of a later commencement of interest is not possible, as the complete application for benefits was already submitted. The defendant also granted unemployment benefits based on this application. It is particularly important to note that the statutory requirements do not include the submission of an employment certificate issued by the employer (see also Lower Saxony-Bremen Higher Social Court, judgment of November 18, 2008 – L 12 AL 185/05 – juris). Therefore, it is irrelevant that the employer subsequently issued a corrected employment certificate taking into account the back payment of wages. For the entitlement to unemployment benefits to arise, neither the knowledge of the eligible person nor that of the benefit provider is relevant (Krott in jurisPK-SGB I, 3rd edition, § 40 para. 15).
4. Since a complete application for benefits had already been submitted, interest was to be charged at a rate of 4% after the expiry of one calendar month following the due date of the higher claim for unemployment benefit, in accordance with Section 44 Paragraph 1 of the German Social Code, Book I (SGB I).
Source: www.socialgerichtsabilities.de
Guiding principles:
If an employee receives back pay based on a settlement before a labor court, the circumstances regarding the amount of pay to be considered within the framework of the assessment wage change in his favor, so that the unemployment benefit must be recalculated in accordance with Section 48 Paragraph 1 Sentence 2 No. 1 SGB X.
2. The further payment claim for unemployment benefits exceeding the previously paid amount becomes due upon receipt of the back payment from the settlement by the employee. Therefore, an entitlement to interest pursuant to Section 44 Paragraph 1 of the German Social Code, Book I (SGB I) exists after the end of one calendar month, provided that six calendar months have already passed since receipt of the original application for unemployment benefits (Section 44 Paragraph 2 SGB I). Even if the original employment certificate only certified the lower wage, this did not constitute an incomplete application for unemployment benefits.
Source: www.gesetze-bayern.de
4.2 – SG Nuremberg, judgment from December 10, 2021 – S 22 AL 411/20
Guiding principle of the editor of Tacheles e. V.:
Suspension of the entitlement to unemployment benefits after severance pay is unlawful in this case.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and asylum seekers' benefits
5.1 – SG Potsdam, Decision of 01.03.2021 – S 20 AY 5/21 ER
Guidance note by attorney Volker Gerloff:
1a Notices must contain a prognosis for the success of the sanction.
Source: twitter.com
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other topics
6.1 – Berlin Hartz IV recipients can expect better housing from January!
The BZ lists the most important changes in the new year.
For couples: According to BZ information, they are now allowed to live in larger accommodations: A calculated 65 square meters is considered appropriate, instead of the previous 60 square meters, resulting in a monthly gross rent of up to €515.45. Previously, the maximum was €500.40.
Continue to the source: www.bz-berlin.de
6.2 – Often more money for rent in Schleswig-Holstein, an article by attorney Helge Hildebrandt
Source: Sozialberatung-kiel.de
We wish all readers and people on this planet a Happy and Healthy New Year!
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
