1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of 26.01.2022 – B 4 AS 3/21 R
Basic income support for job seekers – additional needs – travel expenses – prison visits – partner
Are recipients of basic income support for job seekers under the German Social Code, Book II (SGB II), entitled to reimbursement of travel expenses for visits to an unmarried partner who is in custody?
In individual cases, travel expenses for visits to a non-marital partner in prison may be covered by the job center.
Guiding principle of the editor of Tacheles e. V.
1. This applies in particular if the incurred necessary costs are substantial and can be proven.
2. Marriage is not required to claim additional needs allowances. However, a special close relationship with the partner must have existed before the start of the prison sentence.
Source: www.bsg.bund.de
Note from the editor of Tacheles e. V.:
Hartz IV benefits usually do not cover additional travel expenses to the doctor.
Legal tip from the editor of Tacheles e. V.:
Social Court Hannover, judgment of November 1, 2016, S 54 AS 697/16 (Expenses for visits to a correctional facility to exercise visitation rights with the stepfather constitute an additional need within the framework of basic income support for job seekers and must therefore be covered by the basic income support provider in addition to the standard benefit, if the stepfather is a close, biological father-supplementing figure for the stepchild and the visitation serves the child's best interests); Social Court Braunschweig, judgment of April 9, 2014 – S 49 AS 2184/12 (Job center must cover costs for visits to an incarcerated son); Bavarian State Social Court, decision of July 10, 2012 – L 7 AS 963/10 (Travel expenses for visiting an incarcerated child). Social Court Ulm, decision of October 23, 2013 – S 8 AS 3164/13 ER – (The exercise of the wife's and children's right of access to their father, who is imprisoned in a distant location, constitutes a special, unavoidable and continuously recurring need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II)) and Social Court Reutlingen, settlement of February 27, 2013 – S 2 AS 1515/12 (unpublished) – Regular visits by the wife and child to the father, who is imprisoned in a correctional facility, also constitute a need that can be claimed from the Job Center in accordance with Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
1.2 – BSG, Judgment of 26.01.2022 – B 4 AS 81/20 R
Basic income support for job seekers – additional needs – travel expenses – medical and psychotherapeutic treatments
Regarding the consideration of travel expenses for medical and therapeutic treatments as an additional need according to § 21 paragraph 6 SGB II.
Regularly incurred travel expenses for doctor's visits may, in individual cases, constitute an ongoing need in accordance with Section 21 Paragraph 6 of the German Social Code, Book 2 (SGB 2).
Guidance note from the editor of Tacheles e. V.:
1. Trips to attend medical appointments are considered part of transportation needs. It could remain open whether the expenses for healthcare already included in the standard allowance should also be considered in the assessment of their significance.
2. Regularly incurred travel expenses for doctor's visits can constitute an ongoing need pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), if they significantly exceed the standard allowance for transport and are proven by the applicant.
Source: www.bsg.bund.de
Note from the editor of Tacheles e. V.:
Hartz IV benefits usually do not cover additional travel expenses to the doctor.
Legal tip from the editor of Tacheles e. V.:
Hamburg Higher Social Court, judgment of October 1, 2020 – L 4 AS 66/19 – subsequently appealed to the Federal Social Court, May 20, 2021, B 14 AS 105/20 BH, decision
Unemployment benefit II – additional needs – unavoidable ongoing special needs – regular travel expenses for doctor's appointments – ongoing needs – no unavoidable needs – no significant deviation from the average needs in the absence of proof of actual travel expenses incurred
Guiding principle
1. Regularly incurred travel expenses for doctor's visits can constitute an ongoing need pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). (Paragraph 41)
2. However, the necessity of the need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) cannot be recognized if the actual travel expenses incurred, and thus a significant deviation from the average need, are not proven. (Paragraph 42)
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of November 15, 2021 – L 1 AS 705/19
Basic income support for job seekers – consideration of income – private use of a company car – income in kind related to employment – one percent rule
Regarding the consideration of the possibility of private use of a company car as income.
Company car provided by the employer for private use reduces Hartz IV benefits (Editor of Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.
1. The provision of a company car constitutes income in kind to be taken into account pursuant to Section 11 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), because it is provided within the framework of gainful employment (cf. the hearing report for catering: Federal Social Court - BSG, judgment of August 5, 2021 – B 4 AS 83/20 R).
2. Income in kind is income that does not consist directly of cash or bank money, but has an economic value that can be measured in monetary terms. This includes, among other things, income in kind, including vouchers, collectible coins, services or benefits in kind, in particular free accommodation or meals, allowances and employee discounts (LSG Berlin-Brandenburg, judgment of November 21, 2019 – L 34 AS 801/19).
3. The amount of €125 per month allocated for private driving is the market value to be attributed to private use within the meaning of Section 2 Paragraph 6 of the German Social Code, Book II (SGB II) (in the version of July 26, 2016, which came into force on August 1, 2016).
4. The calculation "at market value" does not require that the received item be freely saleable ("convertible into cash"). The corresponding view (cf. LSG Saxony-Anhalt, judgment of February 26, 2016 – L 4 AS 159/12) has been obsolete since the amendment of Section 11 of the German Social Code, Book II (SGB II) effective August 1, 2016.
Source: gesetze.berlin.de
2.2 – LSG Schleswig-Holstein, decision of 21 July 2021 (L 3 AS 93/21 B ER and L 3 AS 99/21 B PKH):
Guiding principle by Dr. Manfred Hammel:
If a son over 25 years of age living with his needy parents is employed (monthly gross income: EUR 2,701.83, corresponding to a net income of EUR 1,805.51), then, according to Section 9 Paragraph 5 of the German Social Code, Book II (SGB II), in conjunction with Section 1 Paragraph 2 of the German Ordinance on Unemployment Benefit II (Alg II-VO), he is expected to pay a monthly support payment of EUR 174.52 for his mother. His own living expenses consist of twice the standard allowance (EUR 892.00) plus the pro rata costs for accommodation (EUR 209.14) and heating (EUR 55.33). From these EUR 1,156.47, the earned income allowance of EUR 300.00, claimable according to Section 11b Paragraphs 2 and 3 of the German Social Code, Book II (SGB II), must be deducted, and the remaining amount calculated here is reduced by 50%. to reduce H.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Magdeburg, decision of 07.01.2022 – S 34 AS 1113/19
Matters under the German Social Code, Book II (SGB II) (AS)
Objection in the legal aid proceedings
Principle:
The appeal filed must be interpreted in accordance with the general rules of interpretation (cf. Federal Social Court, decision of March 30, 2021 – B 10 ÜG 1/21 C).
An objection can be considered an extraordinary legal remedy if the applicant requests that legal aid be granted retroactively for one additional day.
Gross procedural injustice can be assumed if the operative part of the judgment should have been corrected in accordance with § 138 SGG by analogy.
Source: www.landesrecht.sachsen-anhalt.de
3.2 – SG Magdeburg, judgment of January 15, 2022 – S 27 AS 3201/17
Guiding principle
: As a so-called medium-sized center, the town of Burg has the characteristics that define a homogeneous living and residential area and could therefore be classified as a comparison area.
Applying the comprehensible control resulting from objective limits of knowledge, the procedure chosen by the basic income support provider responsible for the district of Jerichower Land can be identified as a professionally justifiable method, with the help of which it ultimately arrived at a plausible assessment of the appropriateness values for accommodation costs.
Source: www.landesrecht.sachsen-anhalt.de
3.3 – Social Court Itzehoe, judgment of August 3, 2021 (S 46 AS 852/19):
Guiding principle by Dr. Manfred Hammel:
On the application of the hardship provision arising from Section 12 Paragraph 3 Sentence 1 No. 6, second alternative, of the German Social Code, Book II (SGB II), in the case of an applicant residing in a home with a living area of approximately 105 square meters. For the applicability of the asset protection provision pursuant to Section 12 Paragraph 3 Sentence 1 No. 6, second alternative, of the SGB II, i.e., for the recognition of "particular hardship," aspects such as the applicant's age, who was immediately approaching retirement age and thus the age limit stipulated in Section 7a of the SGB II, as well as the usability of the owner-occupied property for the purpose of retirement provision, can be of decisive importance.
The limit for the appropriateness of a motor vehicle according to Section 12 Paragraph 3 Sentence 1 Number 2 of the German Social Code, Book II (SGB II), is to be set at EUR 7,500, in accordance with the Motor Vehicle Assistance Ordinance (KfzHV). To determine the price that private sellers can achieve for a car on the motor vehicle market, especially if the car is sold to a dealer, various lists (e.g., the Schwacke or DAT lists) can be used as a guideline.
Note from the editor of Tacheles e. V.: When age becomes an advantage
Families acquire homes when they regularly need more living space. But when the children grow up, they move out. The house and garden become too large. Therefore, the job center demanded that a man from Itzehoe, who was nearing retirement, sell his house. Read here what the social court ruled on the matter.
In Itzehoe, a 63-year-old man faced the loss of his livelihood in old age. He had applied for benefits from the job center. Citing his house and property, the agency rejected his application. He would first have to sell his house and then use up the money – just before retirement.
The lawyers at the DGB legal protection office in Kiel helped him. Because the job center remained stubborn, the court had to decide.
Further information: www.dgbrechtsschutz.de
3.4 – Social Court Dortmund, judgment of November 3, 2021 (S 87 AS 1233/21):
The principle established by Dr. Manfred Hammel
§ 45 SGB I (“statute of limitations”) also applies to the claim for interest arising from social benefits that are paid out with a delay.
The claim for interest under Section 44 of the German Social Code, Book I (SGB I), constitutes an annex to the original benefit claim, the social benefit. A four-year limitation period also applies in this context.
The interest payment according to § 44 SGB I is not intended to provide immediate security for the necessary minimum subsistence level, but rather to offer applicants compensation for disadvantages incurred over past periods.
The mere fact that the job center made errors in processing the application, leading to a significantly delayed approval and payment of benefits, does not mean that this SGB II provider should always refrain from raising the statute of limitations defense.
In this situation, the budgetary principle of the economical use of public funds takes precedence over the individual interest of a person applying for unemployment benefit II in also receiving interest payments.
3.5 – Cologne Social Court, judgment of December 20, 2021 (S 15 AS 3426/18):
Guiding principle by Dr. Manfred Hammel:
No sanction may be imposed on an employable benefit recipient (§ 7 para. 1 sentence 1 SGB II) pursuant to § 31a para. 1 sentence 1 SGB II in conjunction with § 31 para. 1 sentence 1 no. 2 SGB II for failing to apply for job placements offered by the job center, if this recipient of unemployment benefit II cannot reasonably be expected to perform these activities due to their severely impaired health capacity resulting from a chronic illness, taking into account § 10 para. 1 no. 1 SGB II. In this case, the individual could justifiably cite an important reason pursuant to § 31 para. 1 sentence 2 SGB II.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Munich, decision of 23.12.2021 – L 8 SO 186/21 B ER
Title: No fiction of appropriateness in other accommodations
Principle:
Section 141 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) as amended on November 22, 2021, only covers apartments, but not "other accommodations" within the meaning of Sections 35 Paragraph 5 Sentence 2 and 42a Paragraph 7 of the SGB XII, since for "other accommodations" the appropriateness of the expenses is not decisive, but at most the average reasonable expenses.
Source: www.gesetze-bayern.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Hartz IV: How high should they be? An alternative calculation of standard benefit rates in basic income support with proposals in euros per month
January 2022 by Stefan Sell – with commentary on SG Oldenburg, decision of 17.01.2022 – S 43 AS 1/22 ER
Despite inflation: Hartz IV rates remain constitutional
Source: current-socialpolitics.de
Harald Thomé's comment:
The decision of the Social Court of Oldenburg is a mere rubber-stamping of the existing legal situation. Otherwise, according to the court, the higher energy costs would have been the primary factor driving up prices, and the applicants had not sufficiently demonstrated any other "concrete shortfalls in coverage."
However, the Social Court of Oldenburg (SG OL) also demonstrated how this can be done: one calculates the difference between the energy costs in the housing allowance (€36.43 for a single person) and the actual costs, i.e., the electricity costs of the last or current year. These costs can then be claimed as an ongoing, unavoidable need according to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
5.2 – Social welfare needs of the homeless: Are heating costs reimbursable even without “traditional accommodation”? An article by attorney Kay Wolkau
According to recent case law, even homeless people may be entitled to reimbursement of their heating costs.
The Freiburg Social Court has thus recognized the costs of operating a camping gas heater as a social welfare need within the meaning of Section 22 of the German Social Code, Book II (SGB II), in the case of a homeless person permanently living in a tent. (See decision of the Freiburg Social Court of January 13, 2022, published on: rdl.de).
Source: www.anwalt.de
5.3 – RA Volker Gerloff newsletter 01-2022 dated January 27, 2022
More information: www.ra-gerloff.de
5.4 – Note on: Federal Administrative Court, First Senate, Judgment of 07.09.2021 – 1 C 47/20
Author: Prof. Dr. Uwe-Dietmar Berlit, Chairman of the RiBVerwG
Determination of the validity period of a deportation-related entry and residence ban issued in asylum proceedings in the case of incomplete qualified vocational training at the relevant assessment date
Guiding Principles:
An entry and residence ban to be ordered in asylum proceedings due to deportation can be limited to a period of 30 months without error of discretion if the situation does not exhibit any special features compared to similar cases and, in particular, circumstances that increase the public interest in keeping the foreigner away from the federal territory, as defined by public safety law, are just as unrecognizable as circumstances that are suitable to reduce the weight of this public interest.
The fulfillment of the central criterion of a legal basis for the granting of a residence permit during asylum-related residence in the federal territory, as regulated in Section 4 of Chapter 2 of the Residence Act, establishes a legally relevant interest in return, which must be taken into account when limiting the duration of an entry and residence ban due to deportation.
The completion of qualified vocational training by the relevant date for assessing the situation makes it seem appropriate, subject to any special circumstances of the individual case, to set the validity period of the entry and residence ban at half the value determined under public safety law.
The mere commencement of qualified vocational training does, under the conditions of Section 60a Paragraph 2 Sentence 3 in conjunction with Section 60c Paragraph 1 Sentence 1 No. 1 Letter a of the Residence Act, provide the foreigner with a prospect of remaining in the country, but as a rule does not provide a prospect of return that lasts beyond the validity period of the entry and residence ban.
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
