1. Discussion of decisions of the Federal Social Court on basic income support for job seekers under the German Social Code, Book II (SGB II)
1.1 – Note on: BSG 14th Senate, Judgment of 11 November 2021 – B 14 AS 41/20 R
Author: Dr. Before that Šušnjar, RiSG
Travel expense reimbursements as earned income to be adjusted according to §§ 11 ff. SGB II
Guidelines for Note
1: Reimbursements of travel expenses paid by the employer for business trips using a private vehicle are to be counted as earned income in accordance with Section 11 Paragraph 1 of the German Social Code, Book II (SGB II).
2. In addition to other deductions for fuel costs and parking fees, an amount of 0.10 euros per kilometer traveled is to be deducted from the travel expense reimbursements, unless higher expenses are proven.
Further information: www.juris.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Hamburg, judgment of 12/02/2021 – L 4 AS 127/20
Entitlement of a self-employed EU citizen to basic income support benefits – estimation of income earned
Guiding principle
1. A Union citizen engaged in self-employment pursuant to Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act and in need of assistance is entitled to basic income support benefits pursuant to Section 7 of the German Social Code, Book II (SGB II). (Paragraph 46)
2. If the applicant's income cannot be sufficiently determined, the amount of income must be estimated. (Paragraph 51)
Source: www.landesrecht-hamburg.de
2.2 – LSG Hamburg, judgment of 02/03/2022 – L 4 AS 287/20
Cannabis use at work does not have to be "socially unacceptable"
Guiding principle of the editor of Tacheles e. V.:
1. After the loss of a job due to cannabis use, job centers may not generally reclaim Hartz IV benefits paid out later on due to "socially unacceptable behavior".
2. The plaintiff's conduct is to be considered grossly contrary to traffic regulations; however, it lacks social unacceptability because the plaintiff did not intend to obtain benefits with his misconduct, nor did he recognizably take risks with this tendency, but rather – quite the contrary – he hoped to increase his work energy in order to continue securing his livelihood despite a depressive mood.
Source: www.landesrecht-hamburg.de
2.3 – LSG NRW, judgment of 02/10/2022 – L 19 AS 1201/21
A tent belonging to an unemployed person can be considered accommodation within the meaning of Section 22 of the German Social Code, Book II (SGB II)
Guiding principle of the editor of Tacheles e. V.:
1. A tent on a campsite constitutes accommodation. Job centers must therefore reimburse the costs for the pitch as "costs of accommodation".
2. If the tent is set up on a fenced campsite that is approved under building regulations and also has sanitary facilities and electrical hookups, then the minimum requirements for accommodation are met.
Source: www.lto.de
Full text here: www.sozialgerichtsbarkeit.de
Note from the editor of Tacheles e. V.:
Freiburg Social Court, decision of January 13, 2022 – S 9 AS 84/22 ER – Tacheles Case Law Ticker Week 4/2022
A homeless person's tent can be considered accommodation within the meaning of Section 22 of the German Social Code, Book II (SGB II) = costs for gas heaters are then considered "costs of accommodation and heating"
3. Decisions of the social courts on basic income support (SGB II)
3.1 – SG Neuruppin, decision of 11.03.2022 – S 26 AS 63/22 ER
Presumption of a shared household: Termination of ALG II benefits is unlawful if the job center has not conducted any income investigations (principle of editor of Tacheles e. V.)
Guidance note by the editor of Tacheles e. V.:
The assumption that the applicant was not entitled to any benefits, which would justify completely revoking the benefit approvals, was in any case not a finding based on investigations, but a mere assumption on which, however, the revocation orders cannot be based (cf. only Federal Social Court, judgment of June 25, 2015 – B 14 AS 30/14 R).
Source: gerichtsverkauf.brandenburg.de
3.2 – Social Court Kiel, decision of January 28, 2022 (S 34 AS 4/22 ER):
Dr. Manfred Hammel's guiding principle,
Section 67 of the German Social Code, Book II (SGB II) ("Simplified procedure for access to social security due to the COVID-19 pandemic"), is not limited to those benefit recipients who are directly affected by the coronavirus pandemic. A causal link between the onset of the need for assistance and the epidemic situation is not required.
The concept of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) establishes a rebuttable presumption that the actual costs of accommodation (Section 22 Paragraph 1 Sentence 1, first half-sentence of the SGB II) are deemed reasonable. This presumption applies without limit and also covers exceptionally high accommodation costs.
The creation of a coverage gap for accommodation-related costs should be prevented – at least for a temporary period – in accordance with Section 67 Paragraph 3 of the German Social Code, Book II (SGB II).
Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) neither restricts the scope of application of Section 22 Paragraph 4 SGB II nor does this new provision modify it. According to its wording, Section 67 Paragraph 3 SGB II refers solely to Section 22 Paragraph 1 SGB II. This means that for relocations without a corresponding assurance during the period from March 1, 2020, to March 31, 2022, the assessment of the appropriateness of accommodation-related costs is carried out according to the basic rules of Section 22 Paragraph 1 Sentences 1 and 2 SGB II. This is modified for the limited period specified in Section 67 Paragraph 3 SGB II in that, according to this provision, the actual accommodation costs are considered appropriate.
This means that the SGB II provider is not bound by an assurance given in accordance with Section 22 Paragraph 4 of the SGB II in this benefit case, and employable benefit recipients are only protected by the period specified in Section 67 Paragraph 3 Sentence 2 of the SGB II before a job center can initiate a cost reduction procedure in accordance with Section 22 Paragraph 1 Sentence 3 of the SGB II.
4. Court decisions on employment promotion law (SGB III)
4.1 – LSG Bayern, judgment of October 26, 2021 – L 10 AL 101/20
Guiding Principles:
An unemployed person who moves to another member state after the termination of their employment in Germany is not entitled to unemployment benefits if they do not reside within the local area served by a German employment agency and the requirements for transferring the benefit entitlement, in particular the absence of a waiting period, are not met. If they were informed of this in a personal consultation before the move and still move there, then – depending on the specific circumstances of the individual case – it may be the case that they knew of the illegality of any benefit granted despite the relocation, or were unaware of it due to gross negligence.
Source: www.socialgerichtsabilities.de
4.2 – SG Osnabrück 43rd Chamber, Judgment of 17.03.2022, S 43 AL 100/20
Start-up grant, 150 days entitlement to unemployment benefits, extension of the entitlement to unemployment benefits during the Corona pandemic according to § 421d SGB III, teleological extension, analogy
1. Section 93, paragraph 2, sentence 1, number 1 of the German Social Code, Book III (SGB III), which requires an entitlement to 150 days of unemployment benefits for the granting of a start-up subsidy upon commencement of self-employment, refers to an actual, existing substantive legal entitlement, not to a potentially existing one. The substantive requirements for a concrete claim for payment must be met (Hamburg Higher Social Court, judgment of July 10, 2017, L 2 AL 9/17, para. 29). The possibility of extending the entitlement period during the COVID-19 crisis pursuant to Section 421d of the German Social Code, Book III (SGB III) (as amended on May 20, 2020) is insufficient for this purpose.
2. Section 421d of the German Social Code, Book III (SGB III) (as amended on May 20, 2020) stipulates that, for the extension of the entitlement to unemployment benefits, the entitlement must have been reduced to one day between May 1, 2020, and December 31, 2020. If the receipt of benefits is interrupted before this date, the entitlement is not extended (Bundestag printed matter 19/18866, page 29).
3. If, therefore, the entitlement to unemployment benefits was not extended upon commencement of self-employment, the possibility of granting a start-up subsidy does not arise from a teleological extension of the analogy to Section 93 Paragraph 2 Sentence 1 No. 1 of the German Social Code, Book III (SGB III) or Section 421d of the SGB III (as amended on May 20, 2020). With regard to Section 93 Paragraph 1 Sentence 1 No. 1 of the SGB III, there is no unintended regulatory gap, and with regard to Section 421d of the SGB III (as amended on May 20, 2020), there is no comparable situation of interests.
4. Section 421d of the German Social Code, Book III (SGB III) (as amended on May 20, 2020) aims to maintain social security for a foreseeably particularly affected group of unemployment benefit recipients for a specific period (see: Bundestag printed matter 19/18966, page 29). This purpose is not achieved in the same way by the start-up grant, which is a measure of active labor market promotion. Of the labor market promotion measures, the legislator selected the entitlement to short-time work compensation to combat the consequences of the coronavirus pandemic.
Source: www.rechtsprachung.niedersachsen.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG Baden-Württemberg, judgment of February 16, 2022 – L 2 SO 939/21
Guiding Principles:
The special provision of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) is not transferable to the German Social Code, Book XII (SGB XII) due to the detailed provisions in Section 82 Paragraph 7 of the German Social Code, Book XII (SGB XII). Therefore, it remains the case that a back payment of current income must be considered current income (contrary to Section 11 Paragraph 2 Sentence 3 of the SGB II). Any crediting based on the social assistance guidelines of the SGB XII provider that deviates from the Federal Social Court's (BSG) case law is thus unlawful. Moreover, the legislator only saw grounds for amending the statutory provision in the context of the SGB II.
Source: www.socialgerichtsabilities.de
5.2 – LSG Baden-Württemberg, judgment of February 16, 2022 – L 2 SO 2228/20
Guiding principles:
In the case of a residential care contract concluded at a later date but retroactive to the actual commencement of the residential care, the costs must also be covered for the period in the past, prior to the conclusion of the contract (compare BSG judgment of 13 July 2017 – B 8 SO 1/16 R – juris para. 32).
Source: www.socialgerichtsabilities.de
5.3 – LSG Baden-Württemberg, judgment of March 17, 2022 – L 7 SO 1187/18
Guiding Principles:
If a social welfare agency intends to seek reimbursement of costs from heirs pursuant to Section 102 of the German Social Code, Book XII (SGB XII), by holding one of several co-heirs jointly and severally liable, the selection must be made at the agency's discretion. The fact that one of the co-heirs was the legal guardian of the deceased beneficiary does not automatically eliminate the agency's discretion.
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Hildesheim Social Court – Decision of 25 March 2022 – S 27 AY 4003/22 ER
Legal norms: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: “Failure to depart for Italy”, Corona, non-abusive extension of stay, Hildesheim Social Court
Continued with attorney Sven Adam
6.2 – Lower Saxony-Bremen State Social Court – Decision of 05.04.2022 – L8 AY 32/21 NZB
Legal norms: Sections 3, 3a AsylbLG – Keywords: Admissibility of appeal, constitutionality of benefits under Sections 3, 3a AsylbLG, Lower Saxony-Bremen State Social Court
Constitutionality of the benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG)
Guiding principle of the editor of Tacheles e.V. V.
The legal question of whether the monetary benefits specified in Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) (in their versions applicable from September 1, 2019) are constitutional is of fundamental importance because, by decision of January 26, 2021 – L 8 AY 21/19 – the Senate referred the question to the Federal Constitutional Court for a decision as to whether the essentially identical predecessor provisions, Section 3 Paragraph 2 Sentences 1 and 2 of the Asylum Seekers' Benefits Act and Section 3 Paragraph 2 Sentence 5 in conjunction with Paragraph 1 Sentences 5 and 8 of the Asylum Seekers' Benefits Act in the version applicable in 2018 of the announcements of October 20, 2015 (Federal Law Gazette I 1722) and March 11, 2016 (Federal Law Gazette I 390) as well as of the Federal Ministry of Labour and Social Affairs of October 26, 2015 (Federal Law Gazette I 1793), are compatible with the Basic Law. The proceedings are pending before the Federal Constitutional Court under file number 1 BvL 5/21.
Continued with attorney Sven Adam
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
