1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG NRW, Decision of 15.12.2021 – L 12 AS 1561/21 B ER, L 12 AS 1562/21 B
LSG NRW: The applicant's employee status ends with a break from the German labor market
Guidance note for the editor of Tacheles e. V.
1. The applicant's employment, subject to social security contributions, with a regular 20 hours per week and remuneration sometimes exceeding the minimum wage, was undoubtedly suitable to establish her status as an employee within the meaning of Section 2 Paragraph 2 No. 1 Alternative 1 of the Freedom of Movement Act/EU (cf. regarding the requirements most recently: Decision of the Senate of 08.11.2021, L 12 AS 1284/21 B ER).
2. Shorter interruptions of the employment relationship are also harmless (in detail: BSG judgment of 13.07.2017, B 4 AS 17/16 R).
3. However, in this case, there is no confirmation of involuntary unemployment by the Federal Employment Agency (BA). According to the case law of the Federal Social Court (BSG), the confirmation of unemployment required to establish a claim extends to its involuntary nature (Lower Saxony-Bremen State Social Court, decision of October 20, 2021, L 8 SO 157/21 B ER).
4. Unemployment is involuntary if it occurred independently of the applicant's will or not due to a reason attributable to their conduct, or is not justified by a legitimate reason on their part for terminating the employment relationship (see LSG NRW decision of 17.03.2016, L 19 AS 390/16 B ER).
5. The possibility for an EU citizen to retain the continued status of employee is contingent upon proof in the specific individual case that they are available to the labor market of the host state. This requires not only registering with the employment agency but also making the necessary efforts to find employment. Furthermore, the EU citizen must be capable of reintegrating into the labor market and thus being able to engage in gainful employment within a reasonable timeframe (Saxony Higher Social Court, decision of 12 July 2021, L 7 AS 651/21 B ER).
Source: www.justiz.nrw.de
1.2 – LSG North Rhine-Westphalia, Judgment of 26.11.2021 – L 21 AS 2060/18
Regarding the assumption of costs for exercising visitation rights with children living abroad under the German Social Code, Book II (SGB II), this was denied due to excessively high costs – €800 per month
Guidance note from the editor of Tacheles e. V.:
1. Regarding the court costs, legal fees, translation costs, and travel expenses to the two court dates claimed by the plaintiff, there are already doubts as to whether these are "costs for exercising visitation rights" or whether they precede the exercise of visitation rights.
2. An individualized assessment is constitutionally required, taking into account all circumstances determining the parent-child relationship. This includes considering the age, development, and number of children, the intensity of their bond with the parent entitled to visitation, the other parent's attitude toward visitation rights, in particular the existence and content of any mutually agreed arrangements, the distance between the respective residences of both parents, and the nature of transportation connections (Federal Social Court, 18 November 2014 – B 4 AS 4/14 R –, para. 21). Within these parameters, when assessing potential savings, it must be ensured that the expenditures incurred, in terms of a need to be covered by basic income support, are not manifestly disproportionate to what corresponds to simple and fundamental needs from the perspective of a reasonable recipient of benefits (Federal Social Court, 18 November 2014 – B 4 AS 4/14 R –, para. 23).
Source: www.justiz.nrw.de
1.3 – LSG NRW, decision of 08.12.2021 – L 12 AS 1644/21 B ER
Provisional benefits for the standard needs, because the requirement that the habitual residence in the federal territory of at least five years requires continuous registration according to § 7 para. 1 sentence 4 SGB II has not been reflected in the legal text.
Guiding principle of the editor of Tacheles e. V.:
A five-year habitual residence in the federal territory within the meaning of § 7 para. 1 sentence 4 SGB II does not necessarily require continuous registration with a registration authority during the entire period.
Source: www.justiz.nrw.de
Note from the editor of Tacheles e. V.: Rz. 50:
Insofar as case law and legal literature support the view taken up by the respondent that Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II) require continuous (and, moreover, registration-compliant) registrations throughout the entire five-year period (see, for example, the decisions of the Higher Social Court of Berlin-Brandenburg of May 31, 2021, L 5 AS 457/21 B ER, para. 7, juris; the Higher Social Court of Berlin-Brandenburg of May 4, 2020, L 31 AS 602/20 B ER, paras. 5f., juris; the Higher Social Court of Schleswig-Holstein of May 4, 2018, L 6 AS 59/18 B ER, para. 27, juris; and the Higher Social Court of Hesse of October 16, 2019, L 7 AS 343/19 B ER, para. 24). juris; Groth in BeckOK, SGB XII, 09/2021, § 23 Rn. 18e; Schlette in Hauck/Noftz SGB XII, 07/2021, § 23 Rn. 89d), the Senate does not follow this (as here: LSG NRW decision of 18.08.2021, L 21 AS 1016/21 B ER, Rn. 8, juris; LSG NRW decision of 23.04.2018, L 7 AS 2162/17 B ER, Rn. 21, juris; LSG Berlin-Brandenburg decision of 21.10.2021, L 19 AS 929/21 B ER, Rn. R, juris; LSG Sachsen-Anhalt decision of 13.09.2021, L 2 AS 446/21 B ER, Rn. 37, juris; Hamburg Higher Social Court (LSG Hamburg) decision of June 20, 2019, L 4 AS 34/19 B ER, para. 5, juris; Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) judgment of May 11, 2020, L 18 AS 1812/19, para. 20, juris; Schleswig-Holstein Higher Social Court (LSG Schleswig-Holstein) decision of December 9, 2019, L 6 AS 152/19 B ER, para. 9, juris; Lower Saxony-Bremen Higher Social Court (LSG Niedersachsen-Bremen) decision of July 3, 2020, L 8 SO 73/20 B ER, para. 29, juris; Geiger, in Münder/Geiger, SGB II, 7th edition 2021, § 7 para. 42; Becker in Eicher/Luik/Harich, SGB II, 5th edition 2021, § 7 para. 55; even more extensive: Siefert in Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020, § 23 Rn. 111).
1.4 – LSG Munich, decision of 10.02.2022 – L 7 AS 555/21 B ER
Title:
Preliminary legal protection; complaint regarding the right to be heard
Guiding principles:
1. In expedited proceedings, even a person without legal expertise is required to present facts on their own initiative to substantiate grounds for an order (urgency).
2. The court does not violate the right to be heard if, before making its decision, it does not generally explain the legal situation, does not disclose its legal opinion, and does not give any legal indication of the lack of substantiation of a ground for the order.
Source: www.gesetze-bayern.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Dortmund, Grundurt. v. December 6, 2021 – S 70 AS 836/19
Regarding the question of considering expense allowances as income for memberships in the city council and the district council
No income in the form of expense allowances for political mandates
Guiding principle of the editor of Tacheles e. V.:
1. Expense allowances are monetary receipts according to § 11 para. 1 sentence 1 SGB II and are therefore classified as income. However, they fall under the exception clause of § 11a para. 3 sentence 1 SGB II.
2. Both the compensation for membership as parliamentary group leader in the city council and the compensation for membership in the district council of the county meet these requirements.
3. The fact that the compensation for expenses is separate from the compensation for loss of earnings also distinguishes the present case from the case law to which the defendant refers. In those cases, the benefits in question also included the loss of earnings (Federal Social Court, judgment of 26 May 2011, B 14 AS 93/10 R; judgment of 24 August 2017, B 4 AS 9/16 R; judgment of 12 September 2018, B 14 AS 36/17 R and Higher Social Court of Lower Saxony-Bremen, judgment of 22 November 2018, L 15 AS 55/18).
Source: www.justiz.nrw.de
2.2 – Social Court Magdeburg of 09.02.2022 – S 27 AS 1968-20
Principle by Attorney Michael Loewy
1. The provision of Section 50 Paragraph 4 Sentence 3 of the German Social Code, Book X (SGB X) does not apply to the situation in the present case, namely a reimbursement notice which establishes the claim of a benefit provider for reimbursement of wrongly provided benefits for the first time in accordance with Section 50 Paragraph 3 of the German Social Code, Book X (SGB X) and thus initiates the running of a limitation period.
2. A reminder that merely contains a payment request has a regulatory character only with regard to the setting of a reminder fee. It does not, however, directly concern the claim whose statute of limitations is at issue, but is merely an unappealable, non-independent preparatory act for the enforcement order.
Source: www.anwaltskanzlei-loewy.de
3. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
3.1 – Saxon State Social Court, Judgment of 16 September 2021 – L 3 AL 147/19 – Appeal allowed
The status of cross-border commuter can also be established during an existing employment relationship by changing residence across borders.
Guiding principle of the editor of Tacheles e. V.
1. An employee who – like the plaintiff – permanently relocates his place of residence to another Member State for the purpose of starting a family and maintains his employment in another Member State can, however, become a cross-border worker within the meaning of the Regulation (cf. BSG, judgment of 12 December 2017 – B 11 AL 21/16 R).
Source: www.socialgerichtsabilities.de
Guiding principles www.sozialgerichtsbarkeit.de
1. If an unemployed person cannot be reached by the employment agency by mail because, despite providing the correct residential address and submitting all relevant documents, only the name from the submitted identity document is recorded and not the current family name, this is to the detriment of the employment agency.
2. The law does not provide for the expiration of unemployment registration solely due to the passage of time.
3. The fact that an employee did not yet have a residence in Germany at the time the employment relationship abroad was established and only moves his residence to Germany during the ongoing employment abroad and commutes to the foreign country of employment from that point on does not preclude the status as a “genuine” cross-border commuter.
3.2 – SG Nordhausen, Judgment of 11.02.2022 – S 18 AL 660/21
Principle
1. If three months have passed since the last calendar month for which short-time work compensation was paid, the notification of the work stoppage pursuant to Section 99 Paragraph 1 of the German Social Code, Book III (SGB III) no longer has any effect for subsequent periods.
2. Even in the case of the mandated closure of businesses (here: hairdressing salons by the 3rd Thuringian SARS-CoV-2 Special Containment Measures Ordinance), the notification of the loss of work pursuant to Section 99 Paragraph 1 of the German Social Code, Book III (SGB III) is not dispensable.
Source: landesrecht.thueringen.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, judgment of 12/02/2021 – L 9 SUN 8/21
Regarding the amount of the standard benefit for living expenses during a stay in a rehabilitation facility – meal allowance paid at the institution is considered income – provision of water and electricity or leisure activities are not considered income
Guiding principle of the editor of Tacheles e. V.
1. A reduction of the standard benefit according to § 27a para. 4 sentence 1 SGB XII in the version applicable from 01.01.2017 to 05.12.2019 in view of the services provided in the rehabilitation facility (e.g. electricity and water consumption, possibly certain leisure activities, furniture, games etc.) is not an option, because there is no market for these and they therefore cannot be exchanged for money (cf. SG Detmold judgment of 27.02.2020 – S 11 SO 59/18).
2. However, according to Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the meal allowance paid at the institution must be counted as income when calculating subsistence assistance.
Source: www.justiz.nrw.de
4.2 – LSG Saxony, Judgment of 11 May 2021 – L 8 SO 52/19 – pending before BSG B 8 SO 1/22 R
Is there an entitlement to additional needs allowances under Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII) in the case of a retroactive determination of total incapacity for work?
Principle www.sozialgerichtsbarkeit.de
Additional needs for severely disabled persons pursuant to Section 30 Paragraph 1 No. 2 SGB XII are not to be granted for retrospective periods in which the person concerned received benefits under SGB II.
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other topics
5.1 – Deportation-related entry and residence ban in the case of a return decision based solely on asylum law
The Federal Administrative Court in Leipzig has ruled that an entry and residence ban issued by the immigration authorities in connection with a deportation order can also be accompanied by a return decision if there is only a deportation threat issued by the Federal Office for Migration and Refugees in asylum proceedings.
Source: www.juris.de
5.2 – LSG Celle-Bremen closes legal loophole regarding parental allowance
The professional life of cameramen in film often consists of temporary engagements: In this regard, the LSG Celle-Bremen has ruled that mothers must not be disadvantaged in the calculation of parental allowance if they do not get new employment because of pregnancy.
Source: www.juris.de
5.3 – No housing benefit if reasonable employment is not taken up
The Administrative Court of Berlin has ruled that an employable applicant for housing benefit who fails to take up suitable employment and thus increase his income is not entitled to housing benefit.
Source: www.juris.de
6. Researched late due to the hurricane – decisions of the Federal Social Court on social assistance (SGB XII)
6.1 – BSG, judgment of 02/16/2022 – B 8 SUN 14/20 R
Social assistance – Housing – Initial furnishings – Replacement – Illness
Social welfare agency must reimburse furniture disposed of in a delusional state
Guiding principle www.evangelisch.de
1. People with mental illness can receive a subsidy from social assistance for the replacement of furniture and household goods that were thrown out onto the street during a psychotic episode. Such an exceptional episode constitutes an extraordinary circumstance, comparable to a house fire, which, according to the legislator's intent, justifies replacement.
Source: www.evangelisch.de
Note from the Federal Social Court (BSG) regarding initial furnishing with furniture:
According to the previous case law of the BSG, benefits for initial furnishing of an apartment can also be granted for replacement purchases if, after the loss of the previous apartment furnishings, a special need arises that deviates significantly from the average need due to exceptional circumstances.
Such a case existed here as a result of the acute flare-up of the illness, even though the illness is a personal circumstance. By formulating the term "externally acting exceptional circumstance," the Federal Social Court (BSG) merely clarified the distinction from wear and tear over a longer period and the resulting need for replacement.
6.2 – BSG, Judgment of 16.02.2022 – B 8 SO 3/20 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – payment of cash benefits – residence
Since December 1, 2021, payment of benefits by bank transfer to an account that no longer needs to be the recipient's account is now considered an equal alternative to other cashless payment methods, provided the recipient is willing to bear the additional costs by deducting them from their benefit. The amendment to Section 47 of the German Social Code, Book I (SGB I) has thus fundamentally changed the criteria to be considered when deciding on the payment method. The risk of recurrence has been eliminated, as the previous regulations stipulated that a request could only be granted if the recipient had an atypical case, and what criteria were relevant for such a decision.
Source: www.bsg.bund.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
