1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Berlin-Brandenburg, decision of 07.02.2022 – L 18 AS 12/22 B ER
Preliminary legal protection – basic income support for job seekers – EU citizens – exclusion from benefits – habitual residence of five years
In cases involving complex legal questions concerning the exclusion of subsistence-level benefits that have not yet been clarified by the highest court and are highly contentious, a balancing of interests must be carried out in preliminary legal protection proceedings.
Guiding principle of the editor of Tacheles e. V.
1. A Polish homeless person is entitled to ALG II (unemployment benefit II) within the framework of the balancing of interests.
2. According to Section 7 Paragraph 1 Sentence 5 of the German Social Code, Book II (SGB II), the five-year period begins with registration at the responsible registration authority. In the present proceedings, it can ultimately remain open whether to follow parts of the higher court rulings and legal literature that the provision of Section 23 Paragraph 3 Sentence 8 of the German Social Code, Book XII (SGB XII) (identical to Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II)), according to which the period under Sentence 7 (identical to Section 7 Paragraph 1 Sentence 5 of the SGB II) begins with registration at the competent registration authority, should generally be interpreted restrictively in cases where continuous residence in Germany can be proven in another way (see Higher Social Court of North Rhine-Westphalia, decision of May 5, 2021 – L 9 SO 56/21 B ER; Higher Social Court of Berlin-Brandenburg, decisions of April 5, 2017 – L 15 SO 353/16 B ER and of June 6, 2017 – L 15 SO 112/17 B ER; contra).<mindestens erfolgte erstmalige Anmeldung> LSG Berlin-Brandenburg, decision of 16 August 2018 – L 23 SO 146/18 B ER; Schleswig-Holsteinisches LSG, decision of 9 December 2019 – L 6 AS 152/19 B ER; LSG Hamburg, decision of 20 June 2019 – L 4 AS 34/19 B ER; judgment of the deciding panel of judges of 11 May 2020 – L 18 AS 1812/19;<durchgehende Meldung erforderlich> LSG Berlin-Brandenburg, decision of 31 May 2021 – L 5 AS 457/21 B ER – L 5 AS 459/21 B ER PKH).
3. A final ruling by the highest court on this difficult legal question, which raises particularly constitutional issues given that a homeless person is not subject to a registration requirement and therefore cannot fulfill the exception to the rule without registration, has not yet been issued. This is all the more true since the exception to the rule, which is identically enshrined in the German Social Code, Book XII (SGB XII), must also be interpreted in light of the applicant's fundamental right to a dignified minimum standard of living under Article 1, Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 GG. This right is equally granted to German and foreign nationals residing in Germany, is fundamentally inalienable, and requires, by virtue of constitutional law, that an entitlement to benefits "must" be granted (as expressly stated by the Federal Constitutional Court).<BVerfG> , Judgment of 18 July 2012 – 1 BvL 10/10, 1 BvL 2/11).
Source: gesetze.berlin.de
1.2 – LSG Berlin-Brandenburg, decision of 30.03.2022 – L 9 AS 217/22 B ER
Statute of limitations: Statute of limitations
also applies to the recovery of provisional permits – comments from the lead author, attorney Kay Füßlein
It is currently disputed whether the four-year limitation period also applies to claims for reimbursement under Section 328 of the German Social Code, Book III (SGB III) or Section 41a of the German Social Code, Book II (SGB II). In 2020, the Berlin-Brandenburg State Social Court ruled (L 14 AS 553/20 B ER) that a 30-year limitation period could apply in these cases.
Now, the LSG Berlin-Brandenburg, in its decision of 30 March 2022, has taken a new position in light of the judgment of the BSG of 4 March 2021, stating that a four-year limitation period also applies in principle to claims for reimbursement under Section 40 SGB II in conjunction with Section 328 SGB III or under Section 41a SGB II (which, however, can be extended to 30 years under certain conditions).
Source: Attorney Kay Füßlein
1.3 – LSG NRW, Judgment of 19 January 2022 – L 12 AS 213/20 – Appeal allowed
Guiding principle of the editor of Tacheles e. V.:
Regarding the question of whether § 22 para. 1 sentence 2 SGB II applies after its amendment in August 2016 even without the existence of a conclusive concept, the answer is affirmative.
Source: www.socialgerichtsabilities.de
1.4 – LSG Bayern, judgment of April 29, 2021 – L 7 AS 404/20
Guiding principles:
If sickness benefit is paid directly to a creditor of a beneficiary, the sickness benefit must nevertheless be counted as income for the beneficiary.
Source: www.socialgerichtsabilities.de
1.5 – LSG Baden-Württemberg, judgment from October 13, 2021 – L 2 AS 448/21
Guiding principle of the editor of Tacheles e. V.:
1. The start-up grant is not intended to merely improve the economic conditions of the benefit recipient after a decision to take up employment has already been made and implemented (cf. State Social Court of Saxony-Anhalt, decision of 20.06.2012 – L 5 AS 112/12 B; State Social Court of Lower Saxony-Bremen, judgment of 25.05.2011 – L 13 AS 178/10).
2. It is irrelevant that the employment relationship has since been terminated.
Source: www.socialgerichtsabilities.de
2. Decisions of the social courts on basic income support (SGB II)
2.1 – SG Magdeburg, judgment of March 28, 2022 – S 34 AS 751/16
Matters under the German Social Code, Book II (SGB II) (AS) – Untaken work opportunity – non-final sanction period following a decision by the Federal Constitutional Court
Principle:
The lapse of the effectiveness of an allocation notice pursuant to Section 16d SGB II due to the passage of time within the meaning of Section 39 Paragraph 2 SGB X does not preclude a reduction decision pursuant to Sections 31 et seq. SGB II.
Rather, the judicial review of a sanction by way of an action for annulment requires the incidental examination of the legality of the underlying allocation decision (left open for the integration administrative act: BSG, judgment of 13.04.2011 – B 14 AS 101/10 R).
Even in cases of non-final sanction decisions, the examination of hardship and the subsequent good conduct of the benefit recipient, as defined by the Federal Constitutional Court, must be considered (contrary to the ruling of the Higher Social Court of Saxony-Anhalt of June 17, 2020 – L 4 AS 709/15). This question can remain open if, in the specific individual case, efforts to demonstrate good conduct are not apparent from the overall context.
Source: www.landesrecht.sachsen-anhalt.de
Note:
see also Hamburg Social Court, judgment of 24 September 2020 – S 58 AS 369/17
3. Decisions of the social courts on social assistance (SGB XII)
3.1 – SG Rostock, judgment of April 5, 2022 – S 8 SUN 57/21
Remuneration for the simultaneous provision of home nursing care services pursuant to Section 37 Paragraph 2 of the German Social Code, Book V (SGB V) and in-kind nursing care benefits pursuant to Section 36 of the German Social Code, Book XI (SGB XI)
Guiding principle:
When the same caregiver provides home nursing care services pursuant to Section 37 Paragraph 2 of the German Social Code, Book V (SGB V) and in-kind long-term care benefits pursuant to Section 36 of the German Social Code, Book XI (SGB XI), and the in-kind long-term care benefits are remunerated according to service packages as agreed pursuant to Section 89 of the German Social Code, Book XI (SGB XI), the following applies: The activity-related treatment measures are to be remunerated solely by the health insurance fund; the personal care measures (to which Section 17 Paragraph 1b Sentence 2 of the German Social Code, Book XI (SGB XI) refers regarding the equal division of costs) are to be remunerated equally by the long-term care and health insurance funds, i.e., for the long-term care insurance fund according to equal service packages and for the health insurance fund according to the cost allocation guideline pursuant to Section 17 Paragraph 1b of the German Social Code, Book XI (SGB XI); and the domestic care and nursing support measures are to be remunerated solely by the long-term care insurance fund, whereby the benefits of the long-term care insurance fund are limited to the maximum amount for in-kind benefits for the care level assigned to the insured.
Source: www.landesrecht-mv.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – LSG Bayern, decision of 11.04.2022 – L 8 AY 34/22 B ER
Guiding principles
1. On the responsibility of Bavarian benefit providers for restrictions on entitlements pursuant to Section 1a AsylbLG.
2. A prerequisite for a restriction of benefits under Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) is also that the person entitled to benefits has been informed of their obligation to leave the country and of possible consequences under benefit law if they remain in Germany.
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – LSG Berlin-Brandenburg, decision of 07.04.2022 – L 4 KR 40/22 B ER
Principle:
The provision of Section 83 Paragraph 4 of the German Social Code, Book IX (SGB IX) does not preclude a claim by a minor entitled to benefits for funding of the costs of acquiring a motor vehicle pursuant to Section 83 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book IX (SGB IX).
Source: gesetze.berlin.de
5.2 – Hartz IV recipient cycles to the job center – and gets his travel expenses reimbursed
A recipient of Hartz IV benefits cycled to his appointment at the job center: Now he has successfully sued in court for reimbursement of his travel expenses.
Leipzig – Important Hartz IV News: A recipient of Hartz IV benefits apparently thought, "Why not give it a try?" And the upshot is: he was right. The Hartz IV recipient may have won a landmark case at the Leipzig Social Court. The court ruled that travel expenses for appointments at the job center must be reimbursed, even if the Hartz IV recipient travels to the appointment by bicycle instead of using public transportation.
Continue: www.fr.de
Note:
Social Court Leipzig, judgment of 18 March 2020 – S 17 AS 405/19 – legally binding
Travel expenses also for cyclists
Guidance (Editor):
Reimbursement of travel expenses for attending appointments at the Leipzig Job Center is generally also available to cyclists.
The job center only has discretion regarding the amount of the reimbursement.
Source: www.dgbrechtsschutz.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
