1. Decisions of the Federal Social Court on basic income support for job seekers under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – BSG, judgment of March 24, 2022 – B 10 ÜG 2/20 R
Compensation – excessively long proceedings – preparation and reflection time – illness – judge
Hartz IV recipients may be entitled to greater compensation payments in the event of a judge's prolonged illness (Headnote by editor of Tacheles e. V.)
Full text: www.sozialgerichtsbarkeit.de
1.2 – Federal Social Court, judgment of 16 February 2022 (B 8 SO 1/20):
The guiding principle of Dr. Manfred Hammel,
§ 105 SGB XII (“Reimbursement of Costs in Case of Double Benefits”), presupposes, on the one hand, the payment of a priority benefit (here: by the statutory pension insurance provider) that is temporally congruent with social assistance, and on the other hand, the lack of knowledge of this priority-obligated social assistance provider at the time of the relevant capital inflow, i.e., the existence of a priority-subordination relationship within the meaning of § 104 SGB X, because if the higher pension had been paid in a timely manner, this monetary benefit would have led to the partial loss of entitlement to benefits pursuant to § 19 para. 2 sentence 1 SGB XII as income under § 82 para. 1 sentence 1 SGB XII.
Section 105 of the German Social Code, Book XII (SGB XII) is intended as a special provision under social assistance law to implement the principle of the subsidiary nature of social assistance (Section 2 Paragraph 1 SGB XII) and to obligate the repayment of duplicate benefits received, but does not require the withdrawal, cancellation, or revocation of the decisions granting social assistance benefits (according to Sections 45, 47, or 48 SGB X).
For the application of Section 105 of the German Social Code, Book XII (SGB XII), it is necessary that the social insurance institution preceding the social assistance payment has actual knowledge of the type, duration, and amount of the benefit. Only in this case, for example, is a pension insurance institution able to decide, without further investigation, which benefit components should be withheld to satisfy the reimbursement claim and which benefits should continue to be paid to the pensioned social assistance recipient.
The objective burden of proof for the pension insurance provider's lack of knowledge lies here with the social welfare provider, which invokes the existence of a claim for compensation under Section 105 of the German Social Code, Book XII (SGB XII).
Section 105 of the German Social Code, Book XII (SGB XII) governs a claim aimed at the return of benefits provided by the primarily liable social insurance institution to the extent that the secondarily liable social security institution could have asserted a claim for reimbursement in accordance with Section 104 of the German Social Code, Book X (SGB X), largely analogous to Sections 812 et seq. of the German Civil Code (BGB), a right to the return of funds unjustifiably obtained twice by applicants.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Bayern, judgment of March 10, 2022 – L 16 AS 199/20
Guiding principles
1. It is the responsibility of the person seeking assistance to present and prove the facts by submitting suitable documents in such a way that the court is convinced that there is an entitlement to benefits.
2. A concrete differentiation between expenditures for the private sphere and purely business expenses is necessary in order to reliably determine the profit and the income to be taken into account from self-employment in accordance with Sections 11, 11b SGB II in conjunction with Section 3 Alg II-V.
3. Existing assets as defined in Section 12 Paragraph 1 of the German Social Code, Book II (SGB II) preclude entitlement to benefits under the SGB II as long as they have not been (verifiably) consumed. A fictitious consumption of assets is irrelevant.
Source: www.socialgerichtsabilities.de
2.2 – LSG Baden-Württemberg, judgment of November 24, 2021 – L 3 AS 2253/21
Guiding principle of the editor of Tacheles e. V.:
A person in need of assistance is not entitled to a grant for initial furnishing of their apartment if they have sold all their owned furniture to pay for their living expenses.
Source: www.socialgerichtsabilities.de
2.3 – Saxon State Social Court, Judgment of 17 March 2022 – L 3 AS 263/17
Guiding principles:
Even after the amendments to the law by the Act Introducing the Right to Marriage for Same-Sex Persons of July 20, 2017, a transsexual person can be a partner in a household receiving social assistance within the meaning of Section 7 Paragraph 3 No. 3 Letter c of the German Social Code, Book II (SGB II) (continuation of the Senate's case law, cf. Saxon State Social Court, decision of January 4, 2017 – L 3 AS 1222/15 NZB).
Source: www.socialgerichtsabilities.de
2.4 – Saxon State Social Court, Judgment of 23 June 2022 – L 3 BK 10/21
Guiding Principles
1. The introduction of the special provision in Section 20 Paragraph 6 Sentence 1 of the Federal Child Benefit Act (BKGG), according to which, for applications received between April 1, 2020 and September 30, 2020, only the income from the last month before the start of the benefit period is relevant when determining the monthly income of the parents to be taken into account, is based on a conscious decision by the legislator, who also accepted that this special provision may, in individual cases, have a detrimental effect on an applicant.
2. The temporary special provision in Section 20 Paragraph 6 Sentence 1 of the Federal Child Benefit Act (BKGG) is constitutional.
Source: www.socialgerichtsabilities.de
2.5 – LSG Saxony-Anhalt, Judgment of 19.05.2022 – L 5 AS 526/20
Matters under the German Social Code, Book II (SGB II) (AS) – KdUH Salzlandkreis: Follow-up decision to the judgment of 15.04.2021, L 5 AS 526/16, which is fully documented.
Principle
confirming the judgment of the Senate of 15 April 2021 (L 5 AS 526/16, juris). Even after further review based on a supplementary statement from the concept developer, the finding remains that in the Salzland district, the landlord structure was not a factor relevant to rent prices between 2012 and 2016, and the data were therefore sufficiently representative.
Source: www.landesrecht.sachsen-anhalt.de
2.6 – LSG Berlin-Brandenburg, decision of 07.04.2022 – L 9 AS 400/19
Additional needs allowance for clothing and shoes in oversized dimensions – Section 21 Paragraph 6 SGB II
Hartz IV – Additional needs allowance for clothing, linens and shoes in oversized sizes amounting to €28.36 per month (for the year 2014) is to be granted by the job center as a hardship allowance
The need for plus-size clothing is a permanent need which must be taken into account monthly by the job center (guideline of the editor of Tacheles e. V.).
Guiding principle of the editor of Tacheles e. V.
1. Additional needs for clothing, laundry and shoes in oversized dimensions amounting to 28.36 euros per month for a recipient of assistance under the German Social Code, Book II (SGB II) with a height of 2.07 m and shoe size 52.
2. For recipients of benefits under SGB II who require plus sizes, an additional allowance must generally be taken into account, because it can be assumed that the composition of the standard allowance for clothing based on the EVS (32.85 euros in the standard allowance 2014) is statistically based primarily on the survey of income earners who did not require plus sizes in shoes and clothing.
3. The additional needs deviate considerably upwards (almost 7%) compared to the needs taken into account in the standard rate and are (due to their amount) unavoidable because they cannot be permanently offset by savings elsewhere in the standard rate.
Source: LSG Berlin-Brandenburg
Editor's note:
still rejecting, with the following reason:
The purchase of shoes in size 50 H is not unavoidable or significant within the meaning of Section 21 Paragraph 6 Sentences 1 and 2 of the German Social Code, Book II (SGB II), since the specific additional monthly expenses do not exceed the "de minimis threshold" and the resulting costs can be covered by savings from the standard allowance.
Saxon State Social Court, Judgment of 21 December 2017 – L 7 AS 1806/13 and Hamburg State Social Court, Judgment of 9 July 2020 – L 4 AS 328/19
The Berlin Social Court (LSG Berlin-Br.) shares the same opinion:
SG Berlin, judgment of November 29, 2017 – S 183 AS 9809/15 (not published), appeal pending under L 29 AS 2628/17 – Hartz IV – Additional needs for clothing, laundry and shoes in oversized sizes in the amount of 19.78 euros per month (for the year 2015) are to be granted by the job center as a hardship allowance.
2. SG Berlin, Judgment of 17.08.2018 – S 222 AS 2599/17 (nv) Entitlement to a monthly additional allowance for clothing, laundry and shoes in the amount of 33.65 euros per month (for the year 2017).
3. SG Berlin, Judgment of 23.01.2019 – S 96 AS 24117/14 (nv) – Entitlement to a monthly additional allowance for clothing, laundry and shoes in the amount of 28.36 euros per month (for the year 2014).
2.7 – Schleswig-Holstein Higher Social Court, decision of 07.07.2022 – L 3 AS 51/22 B ER
Guiding principles:
Dependent employment performed for 6 hours per week is not entirely subordinate and insignificant.
The limitation of employment to 6 months does not preclude the assumption of genuine and actual employment within the meaning of Union law.
Employment paid according to a collective bargaining agreement but not subsidized under social security regulations is not equivalent to labor market integration measures, even if the employer also pursues social objectives with the employment. The assumption of genuine and actual employment is not precluded by the social objective.
Source: www.socialgerichtsabilities.de
2.8 – LSG Bayern, decision of 23.12.2021 – L 7 AS 619/20 NZB, (nv)
Regarding the legal question of which number of persons should be considered with regard to the total amount of reasonable accommodation costs, insofar as persons in need of assistance live together with a partner excluded from benefits under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), who does not receive benefits under the German Social Code, Book XII (SGB XII).
Principle by RA Zeeb, Augsburg:
When determining the appropriateness limit in a mixed household, the number of persons excluding the spouse who is excluded from benefits due to receiving an old-age pension is the determining factor.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Nordhausen, Judgment of 08.06.2022 – S 13 AS 1600/20
Guiding principles
1. The granting of a loan for a rental deposit pursuant to Section 22 Paragraph 6 of the German Social Code, Book II (SGB II) can be effected by a public-law contract.
2. The agreed-upon repayment arrangement for the loan is invalid if it does not comply with the requirements of Section 42a, paragraphs 2 to 4 of the German Social Code, Book II (SGB II). This gap must be closed by applying the aforementioned provisions.
3. If a recovered security deposit does not cover the outstanding loan amount, Section 42a Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) generally requires at least an offer from the basic income support provider to the other party regarding payment simplifications.
Source: www.socialgerichtsabilities.de
3.2 – SG Osnabrück, judgment of January 10, 2022 – S 24 AS 22/21
Reimbursement of costs according to § 36a SGB II
Guidance note by the editor of Tacheles e. V.
on the question of whether an entitlement under § 36a SGB II can arise until the establishment of a new habitual or actual residence.
Guiding principle of the editor of Tacheles e. V.:
1. It is not merely a new actual residence, but only the establishment of a new habitual residence that eliminates the obligation of the municipal authority to bear costs at the previous habitual residence (left open by the Federal Social Court judgment of 23.05.2012 – B 14 AS 190/11 R).
Source: www.socialgerichtsabilities.de
3.3 – Social Court Berlin, decision of July 6, 2022 (S 129 AS 3280/22.ER):
Guiding principle Dr. Manfred Hammel:
The assurance from the job center pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) does not constitute a prerequisite for the assumption of the costs of accommodation and heating pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II for a new apartment, but serves to clarify, before moving into different accommodation, whether the costs arising in connection with this new living environment can be recognized, and protects employable benefit recipients from the consequences of a "capping" of the expenses that can be assumed here by the SGB II provider.
The job center has recognized the necessity of a move within the meaning of Section 22 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II), by requesting the employable benefit recipient, who had previously been living in an unreasonably expensive apartment, to reduce costs in accordance with Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
In compelling cases, even in expedited proceedings, the SGB II provider may be ordered to issue an assurance pursuant to Section 22 Paragraph 4 of the SGB II if this is the only way for a person entitled to benefits to rent the specific apartment in question, especially if, due to the existing economic circumstances, renting without such an assurance must be considered impossible.
3.4 – SG Berlin, Judgment of 29 November 2017 – S 183 AS 9809/15 nv, appeal pending under L 29 AS 2628/17
Additional needs allowance for clothing and shoes in oversized dimensions – Section 21 Paragraph 6 SGB II
Guiding principle of the editor of Tacheles e. V.:
Hartz IV – Additional needs for clothing, laundry and shoes in oversized sizes amounting to €19.78 per month (for the year 2015) are to be granted by the job center as a hardship allowance.
The need for plus-size clothing is a permanent requirement that the job center must consider on a monthly basis. Plus-size clothing can constitute an additional need according to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
The plaintiff's regular purchase of clothing (underwear and shoes) constitutes not just a one-off, but a recurring need. This need significantly exceeds (almost 5%) the standard allowance and is unavoidable (due to its amount) because it cannot be permanently offset by savings elsewhere in the standard allowance.
Note:
The same reasoning was also given by the Social Court of Berlin, judgment of 23 January 2019 – S 96 AS 24117/14 (not published), confirmed on appeal by the Higher Social Court of Berlin-Brandenburg, decision of 7 April 2022 – L 9 AS 400/19
3.5 – SG Berlin, Judgment of 23 January 2019 – S 96 AS 24117/14 (not published) confirmed by LSG Berlin-Brandenburg, Decision of 7 April 2022 – L 9 AS 400/19
Additional allowance for clothing, linens and shoes in plus sizes – Section 21 Paragraph 6 SGB II – height of 2.07 m
Guiding principle of the editor of Tacheles e. V.
1. The plaintiff is entitled to a monthly additional allowance for clothing, laundry and shoes in the amount of 28.36 euros per month.
2. The regular purchase of clothing and shoes is not just a one-off need, but a recurring need.
3. The plaintiff's average additional needs of €28.36 per month, based on the standard allowance for 2014 (€391), amount to approximately 7% and almost reach the entire standard allowance for clothing and shoes (€32.85). Other needs, such as healthcare (€16.80) or transportation (€24.62), are exceeded, so that a reallocation of funds could potentially lead to a permanent shortfall in other needs.
Note from the editor of Tacheles e. V.:
Social Court Berlin, judgment of 17.08.2018 – S 222 AS 2599/17 (not published), reached the same conclusion with the same reasoning.
3.6 – SG Berlin, judgment of August 17, 2018 – S 222 AS 2599/17 (nv)
Additional needs allowance for clothing, linens and shoes in oversized sizes – Section 21 Paragraph 6 SGB II – height of 2.10 m, shoe size 52
Guiding principle of the editor of Tacheles e. V.
1. The plaintiff is entitled to a monthly additional allowance for clothing, laundry and shoes in the amount of 33.65 euros per month (for the year 2017).
2. A clothing need falls under the term "peak demand" if it arises only once (e.g., due to illness); however, in the case of plus sizes, permanent overweight, etc., it is not a one-off but a continuous need, as it arises constantly and worn-out clothing items also need to be replaced in plus sizes.
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Berlin-Brandenburg, judgment of June 9, 2022 – L 14 AL 102/19
Guiding principles:
If the commencement of a claim is postponed, the conditions for a claim must be met at the time of commencement.
Under the social security law claim for restitution, a cancelled unemployment registration cannot be fictitiously re-established.
For a contractual termination agreement to exist pursuant to Section 139 Paragraph No. 2 of the German Social Code, Book III (SGB III), a contractual arrangement between the measure provider and the unemployed person is required, which does not merely reiterate the possibility of termination for good cause pursuant to Section 626 of the German Civil Code (BGB).
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG NRW, Decision of 09.06.2022 – L 9 SO 353/21 B ER
Regarding the assumption of rental and conversion costs for a disabled-friendly car by way of preliminary legal protection, the request was denied.
Source: www.socialgerichtsabilities.de
5.2 – LSG NRW, Judgment of 10 March 2022 – L 9 SO 136/19 – Appeal allowed
Regarding the question of whether the amount of €5,000 from the funeral pre-arrangement contract is considered usable assets when granting long-term care assistance
Guiding principle of the editor of Tacheles e. V.:
Funeral pre-planning assets are not realizable assets.
Source: www.socialgerichtsabilities.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Britons get a £400 discount on energy bills
Faced with soaring electricity and gas prices in Britain, consumers will receive discounts on their energy bills during the winter months. In October and November, £66 (€79) will be deducted each month, and from December to March, £67 per month, the government in London announced on Friday. The scheme applies to all 29 million households in the country.
Source: de.investing.com
In Germany, we are supposed to pay a natural gas surcharge of 1.5-5% starting October 1, 2022.
rp-online.de
Mr. Chancellor, what compensation will we finally receive in Germany, especially for those people who have no savings, and when?
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
