1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – Schleswig-Holstein Higher Social Court, decision of 29 March 2022 – L 3 AS 29/22 B ER
Guiding principles:
If a person in need of assistance has been unable to pay the contributions to voluntary statutory health insurance for several months, but an installment payment agreement has been concluded with the health insurance fund or this appears reasonable due to current earned income, then a possible suspension of health insurance claims pursuant to Section 16 Paragraph 3a of the German Social Code, Book V (SGB V) does not constitute an urgent need for regulation for the period before an urgent application is filed with the court.
Only in exceptional circumstances can the one-year period be reduced in accordance with Section 7 Paragraph 3a No. 1 of the German Social Code, Book II (SGB II).
An engagement does not constitute such significant circumstances if it has been dissolved and one partner has subsequently moved out temporarily.
The provision of childcare within the meaning of Section 7 Paragraph 3a Number 3 of the German Social Code, Book II (SGB II) must be interpreted restrictively to avoid a conflict with Number 1 of the provision. Even when living with the children of a new partner, a shorter period of one year is only justified if a substantial portion of the childcare is provided by the stepparent. School transportation and involving the children in the new partner's hobbies (here, fishing) are not sufficient grounds for this.
Source: www.socialgerichtsabilities.de
1.2 – LSG Berlin-Brandenburg, decision of 17.03.2022 – L 18 AS 232/22 B ER, L 18 AS 233/22 B ER PKH
Unemployment benefit II – EU citizens without a substantive right of residence other than that of job seeking – Exclusion from benefits – Social assistance – Civil partnership with an EU citizen
Source: gesetze.berlin.de
1.3 – LSG Berlin-Brandenburg, judgment of 02/16/2022 – L 4 AS 450/18
Subsequent costs of accommodation and heating – partial cancellation – housing benefit – objective reason – separation of benefit systems
The principle of
Section 40 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), in the version applicable until July 31, 2016, was constitutional.
Source: gesetze.berlin.de
1.4 – LSG Berlin-Brandenburg, judgment of 02/17/2022 – L 20 AS 229/20
Sanction – Reductions in Unemployment Benefit II – Exercise of discretion – Instruction on legal consequences prior to the Federal Constitutional Court's decision on the partial unconstitutionality of sanction regulations
No constitutional concerns exist regarding the existing law on the requirements for the notification of legal consequences (contrary to the ruling of the Social Court of Hamburg of September 24, 2020 – S 58 AS 369/17).
Guiding principle of the editor of Tacheles e. V.:
A notification of legal consequences can only refer to the legal situation existing at the time of the notification, and the federal constitutional requirements in the decision of November 5, 2019 – 1 BvL 7/16 – do not lead to the conclusion that the determination of the breach of duty also lacks a proper notification of legal consequences.
Source: gesetze.berlin.de
Legal tip from the editor of Tacheles e. V.:
A different opinion is held by the Social Court of Speyer, judgment of April 22, 2021 – S 15 AS 117/19
Reduction of unemployment benefit II – Occurrence of sanctionable offenses before November 5, 2019 – Requirements for prior notification of legal consequences – Retroactive effect of the Federal Constitutional Court's jurisprudence – Duty of basic income support providers to provide information and clarification – Annulment of non-final and unlawful sanction notices – Constitutionally compliant interpretation
Principle
1. A breach of duty under Section 31 of the German Social Code, Book II (SGB II) only exists if the employable benefit recipient has been previously informed in writing about the legal consequences or is aware of them. The legal consequences of a breach of duty must therefore be fully explained (or known), including all possibilities to mitigate or completely avoid the legal consequences of the sanctionable offense under certain circumstances. (Paragraph 30)
2. This also includes the modifications ordered by the Federal Constitutional Court in its judgment of November 5, 2019 (1 BvL 7/16), which have the force of law (§ 31 para. 2 of the Federal Constitutional Court Act). In the absence of corresponding limitations in the operative part of the judgment, these modifications apply retroactively from the date of entry into force of the provisions declared incompatible with the Constitution (following the decision of the Social Court of Hamburg of September 24, 2020 – S 58 AS 369/17 = info also 2021, 86 = juris para. 37 et seq.). (Para. 31)
3. The retroactive application of the legal consequences established by the Federal Constitutional Court for a breach of duty under Section 31 Paragraph 1 of the German Social Code, Book II (SGB II), means that those affected should have been informed of these legal consequences or should have been aware of them in order for a reduction in their benefit entitlement to occur. The fact that it was objectively impossible for the authorities to provide such information regarding sanctionable offenses before the Federal Constitutional Court's ruling does not alter this. (Paragraph 37) (Paragraph 42)
4. It follows that all reduction notices based on Sections 31a Paragraph 1 Sentences 1, 2 and 3, 31b Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) in conjunction with Section 31 Paragraph 1 SGB II, which relate to facts prior to November 5, 2019, are unlawful and – insofar as they are not legally binding (cf. Section 40 Paragraph 3 Sentence 1 Number 1 SGB II) – must be revoked. (Paragraph 43)
Note:
a. See also the view of the Berlin Social Court, judgment of 27 January 2021 – S 114 AS 3501/17
1.5 – LSG Thüringen, decision of 24.02.2022 – L 9 AS 1107/19 NZB
Guiding principles:
In any case, if this leads to lower benefits and a claim for reimbursement for the person entitled to benefits, it is impermissible to regard an application pursuant to Section 44 Paragraph 1 Sentence 1 of the Tenth Book of the Social Code for review of the preliminary decision as an application for a final decision pursuant to Section 41a Paragraph 5 Sentence 2 No. 1 of the Second Book of the Social Code.
Source: www.socialgerichtsabilities.de
1.6 – Bay LSG, judgment of September 28, 2021 – L 7 AS 452/19
Guiding principles
: When assessing whether existing assets preclude benefits under the German Social Code, Book II (SGB II), the value of a property may be estimated based on the available files if the owner does not cooperate in the valuation.
Source: www.socialgerichtsabilities.de
2. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
2.1 – LSG Baden-Württemberg, judgment of 01/11/2022 – L 13 AL 190/21
Unemployment benefit entitlement – waiting period upon leaving employment – important reason – change of residence – cohabiting partnership
Changing location to establish a (previously non-existent) non-marital cohabitation does not constitute an important reason within the meaning of the principles developed by the Federal Social Court (BSG) (principle of the editor of Tacheles e. V.)
Legal tip:
a. Opinion: LSG NSB, judgment of 12.12.2017, L 7 AL 36/16 – An important reason for leaving one's job to move in with one's partner can also exist under the waiting period law when establishing a joint household for the first time.
Source: www.socialgerichtsabilities.de
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – LSG Baden-Württemberg, judgment of March 17, 2022 – L 7 SO 4143/20
Guiding Principles:
Lunch in institutions is not part of integration assistance benefits, provided that the cost of lunch does not exceed the additional needs allowance according to Section 42b Paragraph 2 Sentence 3 of the German Social Code, Book XII (SGB XII). Only to the extent that the costs for preparation and provision are not covered by this allowance are they allocated to integration assistance.
Source: www.socialgerichtsabilities.de
3.2 – Saxon State Social Court, decision of 22 March 2022 – L 8 SO 49/21 B ER
Guidelines
for the assumption of costs by the integration assistance provider for a trial stay in a special form of accommodation
Source: www.socialgerichtsabilities.de
3.3 – Saxon State Social Court, decision of 22 March 2022 – L 8 SO 2/22 B ER
Guidelines
for the extraordinary termination of a target agreement for a personal budget
Source: www.socialgerichtsabilities.de
3.4 – Bay LSG, judgment of March 17, 2022 – L 8 SO 170/21
Guiding principles:
Even if there is no order of priority between relatives obligated to arrange a funeral under state burial law, only those who are also heirs can be obligated under Section 74 of the German Social Code, Book XII (SGB XII).
Source: www.socialgerichtsabilities.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – LSG Berlin-Brandenburg, judgment of 03/11/2022 – L 15 AY 13/20
Analogous benefits – modalities of service provision – bank transfer – cashier's check – reduction of discretion to zero – verification of eligibility requirements under the Asylum Seekers' Benefits Act (AsylbLG) – enforcement of immigration law obligations – extraneous considerations – rectification of a deficient justification of discretion
Guiding principle of the editor of Tacheles e. V.:
1. A claim for payment of benefits to her account would only arise if the discretion afforded to the defendant were reduced to zero, such that only this decision would be lawful. However, this is not the case here.
2. Any anticipated cost savings do not in themselves reduce discretion to zero.
Source: gesetze.berlin.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Federal Foreign Office: updated version of the Visa Handbook
The German Federal Foreign Office has published an updated version of the visa handbook (as of March 2022): If you open the file in Acrobat, you can open "Bookmarks" in the menu on the left and then have a kind of table of contents, researched by Claudius Voigt
We wish everyone a Happy Easter and peaceful, healthy days.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
