1. Decisions of the Federal Social Court on basic income support for job seekers under the German Social Code, Book II (SGB II)
1.1 – BSG, judgment of July 13, 2022 – B 7/14 AS 57/21 R
Basic income support for job seekers – preliminary and final decision – favorable procedure – exclusion period
Guiding principle of the editor of Tacheles e. V.
1. The shortened exclusion period of Section 40 Paragraph 1 Sentence 2 Number 2 SGB II in conjunction with Section 44 Paragraph 4 Sentence 1 SGB X does not apply in the case of a requested review of a final decision pursuant to Section 41a Paragraph 3 SGB II.
Source: www.bsg.bund.de
1.2 – BSG, judgment of July 13, 2022 – B 7/14 KG 1/21 R
Child supplement – non-working parents
Child supplement is generally only available for employable parents
Guiding principle of the editor of Tacheles e. V.:
If both parents are unable to work, the household with child is not entitled to child supplement.
Source: www.bsg.bund.de
Note:
Child supplement is generally only available for employable parents.
Continue reading: rsw.beck.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Bayern, judgment of April 27, 2022 – L 7 AS 560/20
Guiding principles:
The Munich Job Center was entitled to limit the reasonable costs for accommodation to be covered for a one-person household in the area of the state capital Munich according to § 22 para. 1 sentence 1 SGB II to 660 euros per month (gross rent excluding utilities) from October 2018 to September 2019.
Source: www.socialgerichtsabilities.de
2.2 – LSG Bayern, judgment of April 7, 2022 – L 7 AS 559/20
Guiding Principles:
Section 26 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) precludes a claim for payment of the contribution subsidy directly to the benefit recipient pursuant to Section 26 Paragraph 1 Sentence 1 and Paragraph 3 Sentence 1 of the SGB II. The disclosure of the receipt of social benefits associated with the direct transfer of the contribution subsidy to the health insurance company is, at least when the objective of securing sufficient health insurance coverage as part of the subsistence minimum to be guaranteed under the social welfare principle can only be achieved if benefit recipients insured against the risk of illness with a private insurance company exercise their right to switch to the basic tariff and simultaneously prove their need for assistance to the insurance company in order to obtain a contribution reduction pursuant to Section 152 Paragraph 4 Half-Sentence 1 of the German Insurance Supervision Act (VAG).
Source: www.socialgerichtsabilities.de
2.3 – LSG NSB, judgment of February 23, 2022 – L 13 AS 182/20
Guiding principles:
The overview of rental values for the district of Leer 2015 is not a conclusive concept within the meaning of the case law of the Federal Social Court.
Source: www.socialgerichtsabilities.de
2.4 – LSG Berlin-Brandenburg, decision of 17.05.2022 – L 19 AS 329/22 B ER
Guiding Principles
1. The exclusion from benefits pursuant to Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), due to residence in a facility for the execution of judicially ordered deprivation of liberty applies not only when the person concerned is housed in a correctional facility, but also when it is another facility in which the person concerned is located within the framework of judicially ordered deprivation of liberty (here: a drug therapy facility). The duration of the stay is irrelevant.
2. The constitutional right to equality of access to justice requires that, in the case of a supreme court ruling on a difficult legal question, the decision is not only issued but also published and can be taken into account.
Comment
L 19 AS 330/22 B ER PKH
Source: www.socialgerichtsabilities.de
2.5 – LSG Saxony-Anhalt, Judgment of 16.06.2022 – L 2 AS 256/21 – Appeal allowed
Matters under the German Social Code, Book II (SGB II) (AS) – Withdrawal of benefit approval for the past – Withdrawal period – Grounds for reopening
Principle:
If a benefit recipient has fraudulently obtained excessive basic income support for job seekers through deception constituting fraud, the benefit can be revoked even more than ten years after the initial decision. Section 45 Paragraph 3 Sentence 2 of the German Social Code, Book X (SGB X), in conjunction with Section 580 of the German Code of Civil Procedure (ZPO), does not require a legally binding conviction at the time of the revocation decision, as stipulated in Section 581 Paragraph 1 of the ZPO.
Source: www.landesrecht.sachsen-anhalt.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, judgment of June 15, 2022 – S 134 AS 8396/20
Guiding Principles:
Even if an EU citizen voluntarily ceases their activity in prostitution, this does not constitute a voluntary abandonment of gainful employment within the meaning of Section 2 Paragraph 3 of the Freedom of Movement Act/EU, which would lead to the loss of the right of residence under Section 2 Paragraph 1 of the Freedom of Movement Act/EU and a termination of benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II). Work in prostitution is always unreasonable within the meaning of Section 10 Paragraph 1 Number 5 of the German Social Code, Book II (SGB II) and can be abandoned at any time due to this unreasonableness, without this constituting a voluntary abandonment within the meaning of Section 2 Paragraph 3 of the Freedom of Movement Act/EU.
Source: www.socialgerichtsabilities.de
Note:
Social Code Book II benefits for Bulgarian woman after ceasing self-employed prostitution
Continue reading: rsw.beck.de
3.2 - SG Berlin, judgment of June 22, 2022 - S 205 AS 5122/20
No denial of benefits for lack of cooperation – An article by attorney Kay Füßlein
Refusal due to lack of cooperation is a powerful tool and finds its legal basis in § 66 SGB I.
According to this, benefits can be denied (or withdrawn) in the event of a lack of cooperation. However, some acts of cooperation are absolutely necessary to calculate an entitlement (income, assets, etc.), while others are not strictly necessary, but benefits may still be denied or withdrawn.
In this particular case, the Job Center suspected that the individual suffered from a (mental) illness that would render them unable to work and therefore denied benefits. This decision alone is highly questionable: denying benefits to sick individuals and essentially leaving them to fend for themselves without involving, for example, the social welfare office (since, in cases of inability to work, there is an entitlement to benefits under the German Social Code, Book XII).
The social court then also overturned the refusal notice, because in this specific case it required the exercise of discretion, since the refusal can be made, but does not have to be.
It states, among other things:
The contested refusal notice is unlawful simply because, contrary to the legal basis, it contains no time limit whatsoever.
(...)
The assessment of employability under Section 44a of the German Social Code, Book II (SGB II) is not about preventing the allocation of public funds from taxpayers' money, but solely about clarifying the competent authority, since the plaintiff would receive comparable social assistance benefits in the event of incapacity for work.
(...)
According to the wording of the legal basis (Section 66, Paragraph 1, Sentence 1 of the SGB II), the exercise of discretion must relate in particular to whether the benefit is denied in whole or in part ("...the benefit provider may deny the benefit in whole or in part..."). A refusal notice must therefore contain explanations on this point (Berlin-Brandenburg Higher Social Court, February 10, 2021 – L 5 AS 1582/20 B PKH). In the case of a complete withdrawal of standard benefits, the principle of guaranteeing a dignified minimum standard of living must be taken into account (Trenk-Hinterberger, loc. cit., § 66 para. 12). In exercising discretion, the Federal Constitutional Court's decision on the partial unconstitutionality of sanctions under §§ 31 et seq. of the German Social Code, Book II (SGB II) (Federal Constitutional Court, 5 November 2019 - 1 BvL 7/16 - BVerfGE 152, 68) must be considered (cf. Bavarian State Social Court, 6 May 2021 - L16AS652120 - juris para. 28). Furthermore, it must also be considered that housing costs (§ 22 SGB II) are withheld for an extended period, thus creating a risk of homelessness (cf. Mrozynski, in: Mrozynski, SGB II, 6th ed. 2019, § 66 para. 17).
The court therefore overturned the refusal decision.
Source: Attorney Kay Füßlein
3.3 – SG Berlin, decision of 6 July 2022 – S 129 AS 3280/22 ER
SG Berlin, judgment of July 1st, 2022 - S 129 AS 1020/22
In the absence of a coherent concept, the court may resort to the appropriateness values according to § 12 WoGG plus a safety margin of 10%.
And again: Rent in Berlin, an article by attorney Kay Füßlein
A perennial topic: the appropriate rent according to § 22 SGB II in the state of Berlin and what the JobCenters are willing to pay.
This has been a frequent topic here, and the jurisprudence of the Berlin Social Court now almost unanimously tends to apply the table values from housing benefit (which are significantly higher; see here).
In a judgment and a decision (both legally binding), the Berlin Social Court has once again applied the housing benefit table and not the AV Wohnen for the years 2021 and 2022.
Source: Attorney Kay Füßlein
Editor's Note:
The following are examples only: LSG Berlin-Brandenburg, decision of 16.12.2021 – L 10 AS 1386/21 B ER and, more recently, LSG Berlin-Brandenburg, judgment of 07.04.2022 – L 10 AS 2286/18 and LSG Berlin-Brandenburg, judgment of 16.03.2022 – L 1 AS 456/21 WA
and so too, attorney Matthias Göbe, Berlin
Higher job center rents in Berlin 2022
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – SG Karlsruhe, judgment of May 10, 2022 – S 2 AL 2473/20
Guiding principles
1.) For the question of whether an employment relationship is subject to compulsory insurance pursuant to Section 24 of the German Social Code, Book III (SGB III), only the concept of employment under contribution law is relevant (continuation of the ruling of the Social Court of Karlsruhe, judgment of May 23, 2017 – S 2 AL 1779/16 –, juris).
2.) The mutual intention to continue the employment relationship is not in every case the sole prerequisite for the continued existence of compulsory insurance (in this respect, deviation from the Federal Social Court [BSG], judgment of July 4, 2012 – B 11 AL 16/11 R –, SozR 4-4300 § 123 No. 6). If the legality of the employer's termination (without a corresponding intention to continue) is disputed in labor court proceedings, the outcome of which, through settlement or judgment in the case of default of acceptance by the employer, results in the termination of the employment relationship after the cessation of work, this point in time alone is also decisive for the termination of compulsory insurance, because in this case, too, there is sufficient performance of the employment relationship (in this respect, following the Federal Social Court [BSG], judgment of September 24, 2008 – B 12 KR 22/07 R –, SozR 4-2400 § 7 No. 9).
3.) Restrictions on the acquisition of qualifying periods arise solely from Section 142 Paragraph 1 Sentence 2 of the German Social Code, Book III (SGB III) and from the commencement, end and, if applicable, reduction of the reference period according to Section 143 of the German Social Code, Book III (SGB III).
4.) If an insured person registers as unemployed in person before a new qualifying period has been fulfilled, a new reference period nevertheless only begins to run when the qualifying period, which is solely determined under contribution law, has also been fulfilled as a prerequisite for a new entitlement to unemployment benefits; the prior approval of an unused remaining entitlement, however, has no influence on the creation of a new reference period (deviation from BSG, judgment of December 11, 2014 – B 11 AL 2/14 R –, SozR 4-4300 § 124 No. 6).
5.) The acquisition of further qualifying periods through salary payments obtained in labor court proceedings is possible in parallel with the receipt of an unused remaining entitlement to unemployment benefits.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG NRW, judgment of April 7, 2022 – L 9 SO 139/21
Accommodation costs in a shared apartment within the meaning of Section 42a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII), if the person seeking assistance has agreed on a specific rent with the landlord.
The legal opinion of the social welfare agency, according to which the reasonable costs for a single-person household are only to be recognized insofar as the rent to be paid by the person entitled to benefits is in a reasonable proportion to the rent to be paid by the landlord to the main tenant, or, in the absence of knowledge of the latter, the reasonable amount for a multi-person household is to be assumed, is incorrect.
Guiding principle of the editor of Tacheles e. V.:
If a social assistance recipient lives in a shared apartment, their accommodation costs are not to be covered on a per capita basis, but rather the reasonable costs for a single-person household, if they have agreed on a specific rent with the landlord and this rent is reasonable (Section 42a Paragraph 4 Sentence 2 SGB XII).
Guiding principle by the editor of Tacheles e. V.
1. According to Section 42a Paragraph 4 Sentence 2 of the German Social Code, Book XII (SGB XII), the actual expenses for accommodation and heating are to be recognized as a need up to the amount that is reasonable for a single-person household, provided that the rent to be paid by the person entitled to benefits is in reasonable proportion to the total rent. When assessing this proportion, the rent share of the person entitled to benefits must be compared with the total rent (reference to the judgments of the Social Court of Aachen of December 10, 2019 – S 20 SO 111/19 and of June 19, 2020 – S 19 SO 109/19).
2. Section 42a paragraph 4 sentence 2 of the German Social Code, Book XII (SGB XII) applies to the plaintiff, because he had not rented the apartment jointly with others, but had rented "a room for sole use" as well as the common areas for joint use under the rental agreement and owed rent relating solely to this share of use.
Source: LSG NRW
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Fulda Social Court – Decision of 11 July 2022 – Case No.: S 7 AY 10/22 ER
Legal provisions: Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, Sections 3 Paragraphs 1 and 2, 3a Paragraph 1 No. 2b AsylbLG – Keywords: AsylbLG, standard benefit level 2b, standard benefit level 1, collective accommodation, communal accommodation, Hessian State Social Court, Reception Directive, European law
Continued with attorney Sven Adam
6.2 – Attorney Volker Gerloff on the Asylum Seekers' Benefits Act
It should go without saying: The conversion of benefits under Section 3 to Section 2 must be carried out officially on the exact day!
SG Hannover, v. 5/23/22 – S 53 AY 48/18
Continued with attorney Volker Gerloff
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Cornerstones for the new citizen's income from January 2023 on the Tacheles website
More information: tacheles-sozialhilfe.de
Likewise, a significantly shortened version can be found on the website of attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
7.2 – Higher Administrative Court of Saxony, decision of March 9, 2022 (5 D 37/21):
Guiding principle Dr. Manfred Hammel:
The legal question of whether a hardship case leading to exemption from the broadcasting fee obligation pursuant to Section 4 Paragraph 6 Sentence 1 of the Interstate Broadcasting Fee Agreement (RBStV) must also be affirmed in the case where an applicant must be assessed as needy within the meaning of social benefits pursuant to Section 4 Paragraph 1 RBStV, and who otherwise fulfills the requirements for the granting of one of these benefits, but voluntarily waives the granting of this social benefit, which would take into account the exemption option tied to a formal decision, is contentious and not straightforward.
It remains unclear whether, in cases of such voluntary waiver, the constitutional limits of the legislature's power to create categories are exceeded, because an applicant always has it in his own hands to obtain exemption from the broadcasting fee obligation pursuant to Section 4 Paragraph 1 RBStV by applying for one of the social benefits listed therein, for which he fulfills the eligibility requirements.
7.3 – Scholz does not want to abandon citizens – gas levy and housing benefit reform
Read more: www.faz.net
Editor's note:
Honestly, Mr. Chancellor, isn't all this coming much too late?
The housing benefit reform is supposed to take effect from 1 January 2023, but citizens may not receive the money until May 2023 at the earliest, or even until summer, because it will be a bureaucratic nightmare.
The levy is supposed to come as early as October 1st or September 1st, 2022, but where will it come from?
Where are we supposed to get the money from? Please tell us!
The newly created citizen's allowance doesn't apply to pensioners at all, because they must be capable of working; therefore, we pensioners have to go to the social welfare office – it's a disgrace.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
