1. Decision of the Federal Constitutional Court on the German Social Code, Book II (SGB II) – appropriate living space for homeowners
1.1 – Federal Constitutional Court, decision of 28 April 2022 – 1 BvL 12/20
Property limits for Hartz IV recipients are not unconstitutional, because the appropriateness of a house depends on the current number of residents (principle of the editor of Tacheles e. V.)
in the procedure
for constitutional review,
Whether Section 12 Paragraph 3 Sentence 1 Number 4 in conjunction with Section 12 Paragraph 3 Sentence 2 of the Social Code, Book Two (SGB II) (promulgated as Article 1 of the Fourth Act for Modern Services on the Labour Market of 24 December 2003, valid from 1 January 2005, Federal Law Gazette I page 2954) is compatible with Article 3 Paragraph 1 in conjunction with Article 6 Paragraph 1 and Article 20 Paragraph 1 of the Basic Law insofar as the protection against realization of the value of self-occupied residential properties of reasonable size does not apply to benefit recipients who have raised children, because they also had to meet the housing needs of their children when building or acquiring the house.
Section 12 paragraph 3 sentence 1 number 4 in conjunction with sentence 2 of the Social Code Book Two (promulgated as Article 1 of the Fourth Act for Modern Services on the Labour Market of 24 December 2003, valid from 1 January 2005, Federal Law Gazette I page 2954) is compatible with the Basic Law.
Source: www.bundesverfassungsgericht.de
Note:
Federal Constitutional Court approves property limits for Hartz IV recipients
According to the Federal Constitutional Court, regulations regarding the maximum size of residential property owned by recipients of Hartz IV benefits are compatible with the Basic Law. This can become a problem when children move out.
Read more at: www.spiegel.de
See also attorney Helge Hildebrandt, Kiel:
The dependence of social law protection against the exploitation of owner-occupied residential property on the current number of residents does not violate the principle of equality.
Source: Sozialberatung-kiel.de
2. Decisions of the Federal Social Court on basic income support for job seekers under the (SGB II)
2.1 – BSG, judgment of March 9, 2022 – B 7/14 AS 31/21 R
(Basic income support for job seekers – integration services – vocational training – school-based training to become a state-certified educator – further training bonus – equivalence of the first part of a staggered final examination with an intermediate examination – analogous application of Section 131a Paragraph 3 No. 1 SGB 3)
Educators are entitled to a further training bonus of 1000 EUR according to § 16 para. 1 SGB II in conjunction with § 131a para. 3 no. 1 SGB III.
Double bonus for further training success – Passing the first part of a two-part final examination is equivalent to an intermediate examination and entitles the holder to an additional bonus.
Source: www.rechtrecht-im-internet.de
2.2 – BSG, judgment of March 9, 2022 – B 7/14 AS 79/20 R
Basic income support for job seekers – Exclusion of benefits for foreigners residing in Germany for the purpose of seeking employment – EU citizens – Continued validity of the right of residence and freedom of movement as an employee in the case of duly confirmed involuntary unemployment by the Federal Employment Agency – Employment for exactly one year – Confirmation of the involuntary nature of unemployment through the granting of unemployment benefits – Interpretation in conformity with European law
Guidance note by attorney Volker Gerloff:
Section 2 III 1 No. 2 of the Freedom of Movement Act/EU states that EU citizens who have been employed for "more than one year" retain their employee status permanently.
The Federal Social Court (BSG) has ruled that this also applies if employment lasted exactly one year.
Source: www.rechtrecht-im-internet.de
In this regard, the guiding principle of Dr. Manfred Hammel
states: EU citizens who, as employable benefit recipients (§ 7 para. 1 sentence 1 SGB II), have a continuing right of free movement and thus a right of residence as employees or self-employed persons within the meaning of § 2 para. 2 no. 1 and 2 in conjunction with para. 3 FreizügG/EU are not covered by the exclusion from benefits pursuant to § 7 para. 1 sentence 2 no. 2 SGB II.
This is the case when the employment agency confirms the involuntary termination of at least one year of employment subject to social security contributions in Germany.
There is no reason to believe that Article 7(3)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens' Rights Directive) should not cover an employment relationship carried out in the federal territory for exactly one year.
Confirmation from the employment agency regarding the involuntary nature of the job loss cannot be waived outright, even in cases where a fixed-term employment contract expires. However, this requirement is met if the employment agency conducted such a review immediately following the last employment as part of the approval process for unemployment benefit I under Sections 138 et seq. of the German Social Code, Book III (SGB III), and if this aspect was (incidentally) confirmed in that review.
2.3 – Federal Social Court (BSG), Judgment of 26 January 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 can constitute an ongoing need according to § 21 para. 6 SGB 2, but in this case they were denied.
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.socialgerichtsabilities.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – LSG Schleswig-Holstein, judgment of February 24, 2022 – L 6 AS 89/19
Doubts about the legality of the dismissal by the employer preclude the application of Section 34 of the German Social Code, Book II (SGB II) (principle of the editor of Tacheles e. V.).
Principle
1. If the social court incorrectly assumes the finality of a decision and consequently, in its opinion, logically does not decide on part of the claim, the state social court must interpret the claim raised by the plaintiff itself and decide on this in the appeal proceedings.
2. Socially unacceptable conduct within the meaning of Section 34 of the German Social Code, Book II (SGB II) requires a heightened degree of culpability. In the case of dismissal due to conduct contrary to the employment contract, this is only the case if the dismissal would be clearly lawful based on this conduct. Doubts about the lawfulness of the dismissal generally preclude the application of Section 34 SGB II.
3. The legality of the dismissal must be fully reviewed by the job center before any claim for compensation can be asserted pursuant to Section 34 of the German Social Code, Book II (SGB II). Whether the employee has initiated legal proceedings against the dismissal is irrelevant in this respect.
Source: www.gesetze-rechtsprachung.sh.juris.de
3.2 – LSG Schleswig-Holstein, Judgment of October 29, 2021 (L 3 AS 108/20):
Guiding principle Dr. Manfred Hammel:
For the area of social court jurisdiction, it has not yet been conclusively clarified by the highest court what effect the legal possibility of raising objections or lawsuits by means of electronic documents has on the specific content of the legal remedy or appeal instructions within the (objection) decision.
The electronic submission of documents pursuant to Section 65a of the Social Court Act (SGG) constitutes a completely independent form of expressing a legally relevant intention, which the legislator introduced as an additional option alongside the existing written form. However, this only applies if the respective social security institution has actually opened up electronic legal transactions for its area of responsibility (Section 36a Paragraph 1 of the German Social Code, Book I).
The failure to provide information on the possibility of filing an objection electronically in accordance with Section 36a Paragraph 2 of the German Social Code, Book I (SGB I), does not render the legal remedies information defective and thus does not lead to an extension of the deadline pursuant to Section 66 Paragraph 2 Sentence 1 of the German Social Courts Act (SGG), if the job center has neither opened access to electronic legal transactions nor was listed in the address directory of the electronic court and administrative mailbox (EGVP).
In this situation, there is a lack of an electronic receiver, a lack of the actual provision of the possibility to receive electronic documents.
The legislator does not provide for the imposition of sanctions for the failure to introduce electronic legal transactions.
If a job center lacks the capability to receive electronic documents in accordance with Section 36a Paragraph 2 Sentence 2 of the German Social Code, Book I (SGB I), then a legal remedy notice cannot be considered incomplete or incorrect within the meaning of Section 66 Paragraph 2 Sentence 1 of the German Social Courts Act (SGG).
The inclusion of an email address in the letterhead of a decision issued by a job center is not sufficient, so that it can be assumed that electronic legal transactions have been implicitly initiated in accordance with Section 36a Paragraph 1 of the German Social Code, Book I (SGB I).
Therefore, a simple email does not meet the formal requirements of Section 36a Paragraph 2 of the German Social Code, Book I (SGB I).
Attorney Sabine Vollrath adds:
Electronic legal transactions – email in letterhead
The question of when electronic legal communication is opened by a public authority is a concern for all branches of the judiciary. This question is significant for the deadline for filing an appeal.
If the authority does not point this out in the instructions on legal remedies, even though electronic legal transactions are open, the one-year time limit applies for filing the appeal.
It is now undisputed that the existence of the EGVP and thus the ability to be found in the electronic directory of authorities means the opening of electronic legal transactions, regardless of whether the authority wants this or not.
It is not yet clear whether the mere mention of the authority's email address in the letterhead of the decision, without the indication in the letterhead that electronic legal communication is not open, is sufficient for the opening of the proceedings.
After the 3rd Senate of the Schleswig-Holstein State Social Court answered this question in the negative, the Federal Social Court will deal with the issue.
Ref.: B 7 AS 10/22 R
Source: www.kanzlei-vollrath.de
3.3 – LSG Hessen, Judgment of 18.05.2022 – L 6 AS 94/20 – Appeal allowed
Guidance note by the editor of Tacheles e. V.:
The regulation on the earned income allowance according to § 11b para. 2 SGB II is applicable to military pay from reserve service according to § 61 Soldiers Act, to which the reservist can only be called up on the basis of a voluntary written commitment (LSG Hessen, judgment of 23 August 2017, L 6 AS 452/15)
Source: www.socialgerichtsabilities.de
3.4 – LSG Berlin-Brandenburg, decision of 16.05.2022 – L 4 AS 357/22 B ER
The guiding principles
of Section 47 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), grant the beneficiary a choice between two payment methods (transfer to an account or delivery to their residence). The beneficiary is not obligated to open an account.
The term "residence" within the meaning of Section 47 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), is to be understood as meaning not the dwelling of the person entitled to benefits, but only the smallest political unit.
If the beneficiary requests, pursuant to Section 47 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), that the benefits be delivered to their place of residence, the authority generally has discretion in choosing the delivery location. This discretion may be reduced to zero due to the beneficiary's right to express their preference under Section 33 Sentence 2 of the SGB I.
Source: www.socialgerichtsabilities.de
3.5 – LSG NRW, Decision of 11.04.2022 – L 7 AS 1820/21 B ER
Regarding the existence of a household unit between a mother and her son under 25 years of age
Guidance note by the editor of Tacheles e. V.
1. Whether the applicant's mother supports him beyond the extent stated is ultimately irrelevant, because the assistance already provided by the applicant establishes a material connection that goes beyond mere toleration of his presence and is sufficient to affirm household membership within the meaning of Section 7 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II). The latter does not require an unrestricted willingness to provide support or a complete "pooling of resources" (cf. Federal Social Court judgment of October 19, 2010 – B 14 AS 51/09, Senate decision of August 28, 2014 – L 7 AS 1333/14 B ER). This is already evident from the fact that Section 7 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II), unlike Section 7 Paragraph 3 No. 3c, which is relevant for examining a community of responsibility and support with a non-marital partner, does not provide for an individual examination of the joint economic activity ("lives together in such a way that, after reasonable assessment, the mutual intention to bear responsibility for each other and to support each other can be assumed").
2. For the assumption of a community of need between the applicant and his mother, it is also irrelevant whether the applicant has a corresponding civil law maintenance claim or whether he realizes this claim (cf. Senate judgment of 21.10.2010 – L 7 AS 113/10).
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Hamburg, judgment of 04/28/2022 – L 4 SUN 30/21
Regarding the claim under Section 25 of the German Social Code, Book XII (SGB XII) – claim for emergency
assistance: The lack of knowledge on the part of the social assistance provider is a prerequisite for the application of Section 25, sentence 1 of the SGB XII, because with the knowledge as defined in Section 18 of the SGB XII, and provided the other prerequisites for a claim under the SGB XII are met, social assistance "begins" and a claim arises for the person in need. From this point onward, a claim by the emergency aid provider is therefore excluded, as multiple claims for the same need or the same period are not permitted.
Guidance note by the editor of Tacheles e. V.:
1. If there is time to inform the responsible social welfare agency, then there is no emergency. Furthermore, an emergency only exists for the period in which the social welfare agency is unreachable or the emergency responder could reasonably assume, without violating their own obligations, that they did not need to involve the social welfare agency (see Federal Social Court [BSG], judgment of August 23, 2013 – B 8 SO 19/12 R and judgment of November 18, 2014 – B 8 SO 9/13 R). The obligation of a hospital to inform the social welfare agency is regularly triggered when the patient cannot prove health insurance coverage by presenting an insurance card and no other circumstances exist that would guarantee the hospital the necessary cost certainty (see Federal Social Court [BSG], judgment of November 18, 2014 – B 8 SO 9/13 R).
2. The entitlement to emergency assistance is then limited in duration to the period during which the social welfare agency cannot obtain knowledge of the case for assistance because it is not available for service (cf. LSG Hamburg, judgment of 30 March 2017 – L 4 SO 38/15 and judgment of 30 August 2018 – L 4 SO 41/17; BSG, judgment of 18 November 2014 – B 8 SO 9/13 R, para. 16). If the social welfare agency is aware of the benefit claim, the emergency aid provider can no longer have a claim (see Hamburg Higher Social Court, judgment of 24 June 2016 – L 4 SO 12/15 and judgment of 30 August 2018 – L 4 SO 41/17; Federal Social Court, judgment of 23 August 2013 – B 8 SO 19/12 R, para. 18; judgment of 12 December 2013 – B 8 SO 13/12 R and judgment of 30 October 2013 – B 7 AY 2/12 R).
Source: www.landesrecht-hamburg.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Hartz IV: Allowances for each month with income
An article by attorney Helge Hildebrandt:
The basic allowance of 100 euros and the earned income allowance (§ 11b para. 2 and 3 SGB II) are to be deducted for each month of earnings in which earned income is received.
More information: sozialberatung-kiel.de
5.2 – Freiburg Social Court, judgment of May 24, 2022 (Case No.: S 9 KG 3744/20):
Guiding principle Dr. Manfred Hammel:
Anyone claiming entitlement to child benefit who, as an Afghan national granted refugee status by the Federal Office for Migration and Refugees, whose parents' whereabouts within their country of origin are unknown, fulfills the entitlement requirement of Section 1 Paragraph 2 Sentence 1 No. 2, 2nd alternative BKGG.
This is especially true if several years have passed between fleeing Afghanistan and breaking off contact with the parental home, the applicant's family is not very wealthy, and the political and economic situation in that country has worsened further due to the Taliban's takeover of power in August 2021.
Furthermore, according to Afghan and Islamic law, the applicant's release from the forced marriage in Afghanistan and her flight to Germany with a new partner would objectively endanger her life and the physical integrity of her partner if relatives of the family still living in Afghanistan were to become aware of the applicant's habitual residence in Germany.
Finally, the risk of retraumatization of the applicant is plausible here, taking into proper consideration all relevant data and facts.
The applicant's stated wish not to know the exact whereabouts of her parents, as long as this necessarily entails contact with or disclosure of her whereabouts to persons living in Afghanistan, can therefore under no circumstances be considered an abuse of rights, but rather a fundamental right. The burden of proof for conduct contrary to the duty to cooperate (Sections 60 et seq. of the German Social Code, Book I) lies with the authority responsible for granting child benefits.
5.3 – Abolish, not suspend, Hartz IV sanctions – by Inge Hannemann
Continue reading: gewerkschaftsforum.de
5.4 – Curious official decision in Offenbach: Man with heart disease loses housing benefit because he is thrifty
Because he spends less money than the fictitious standard rate provides for, the office in Offenbach has cut Michael G.'s rent support.
More information: www.op-online.de
Note:
Federal Social Court (BSG), judgment of 23 March 2021 - B 8 SO 2/20 R
There is then a choice between benefits under the German Social Code, Book XII (SGB XII) and housing benefit
Continued with RA Kay Füßlein
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Social Court Frankfurt am Main, decision of April 26, 2022, file number: S 30 AY 8/22 ER, not legally binding.
Benefit reduction due to lack of cooperation from a foreigner required to leave the country
The district regulatory office may demand a declaration regarding departure to the home country for the issuance of a passport – Social Court: Duty to cooperate in obtaining a passport
Further information: www.sozialgerichtsbarkeit.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
