1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, Judgment of February 16, 2022 (B 8 SO 14/20 R):
Guiding principle Dr. Manfred Hammel:
A claim for initial furnishing of an apartment pursuant to Section 31 Paragraph 1 No. 1 of the German Social Code, Book XII (SGB XII) can be asserted by a person entitled to benefits pursuant to Section 19 Paragraph 1 in conjunction with Section 41 Paragraph 3 of the SGB XII due to a permanent total incapacity for work, even for a renewed need (replacement procurement), e.g., in the case of a renewed, special need situation that deviates significantly from the average need after the loss of the entire apartment furnishings due to exceptional circumstances acting "from the outside".
This applies to a person with a significant mental disability who has suffered a substantial flare-up of illness with delusional and hallucinatory ideas, which caused the destruction or unusability of household items.
This is not a case of the usual wear and tear of everyday items over a longer period. Following the near-total destruction of her previously functional household furnishings as a result of a severe flare-up of her illness, this welfare recipient faced the same utter destitution as she would, for example, after a house fire or upon release from prison.
1.2 – Federal Social Court, judgment of 16 February 2022 (B 8 SO 3/20.R):
Guiding principle Dr. Manfred Hammel
: Section 47 of the German Social Code, Book I (SGB I) ("Payment of monetary benefits") grants a right of choice, for example, to a recipient of basic income support benefits under Sections 41 et seq. of the German Social Code, Book XII (SGB XII), as to whether the social welfare office should transfer the funds it has specifically approved to its account or whether the transfer of the monetary benefit should take place in another way.
The term "residence" within the meaning of Section 47 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) is not synonymous with the dwelling of the person entitled to benefits. Here, it refers to the place of residence within the meaning of Section 30 Paragraph 3 Sentence 1 of the SGB I in conjunction with Section 7 of the German Civil Code (BGB). A social security institution is generally only responsible for transmitting benefits to the "smallest political unit" and not to the dwelling of the person entitled to them.
Within the framework of the appropriateness assessment pursuant to Section 47 Paragraph 1 Sentences 2 and 3 of the German Social Code, Book I (SGB I) in conjunction with Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), a social security institution is required to consider fewer aspects that would result in disproportionate additional costs (Section 9 Paragraph 2 Sentence 3 SGB XII) for the public sector, but rather a social welfare office must, in principle, increasingly offer the option of payment via a cash machine in its office as an alternative to transferring funds to a bank account.
If, in individual cases – such as in the case of a severely disabled recipient of benefits under Sections 41 et seq. of the German Social Code, Book XII (degree of disability: 60; award of the symbol "G") – doubts exist as to the ability to properly redeem a check or payment order issued by the social welfare agency, then these aspects must be given due consideration by the authorities as arguments against this form of payment, in accordance with Section 17 Paragraph 1 No. 1 of the German Social Code, Book I ("execution of social benefits").
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, decision of 26.06.2022 – L 1 AS 382/22 B ER
Granting of ALG II (unemployment benefit II) as a subsidy instead of a loan – security according to § 24 para. 5 SGB II – realization of the value of an owner-occupied property
Guiding principle of the editor of Tacheles e. V.:
1. A person in need of assistance is entitled to ALG II (unemployment benefit II), because the need for assistance is not already averted by a loan offered by the Job Center, the conditions of which the applicant unnecessarily refuses, and rightly so, because
2. According to the law, a loan against the provision of real security is only permissible if the need for assistance, while not immediately remedied, can be eliminated autonomously (and reasonably) by the applicant's own actions within a period specified at the time of application (Federal Social Court, judgment of December 6, 2007 – B 14/7b AS 46/06 R). This is not the case here.
3. If the use of this asset (here the owner-occupied house) cannot be required to eliminate the need for assistance, its existence cannot justify granting a loan instead of a grant to avert an acute emergency, and it is even more impermissible to make the granting of a loan dependent on the use of this property as security.
Source: www.socialgerichtsabilities.de
2.2 – LSG Berlin-Brandenburg, judgment of May 4, 2022 – L 1 AS 846/18
In cases such as this, where the beneficiary cannot be accused of violating the obligation under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), the constitution itself mandates the assumption of the actual costs, insofar as no request to reduce costs has been made (principle of the editor of Tacheles e. V.).
Guiding principle of the editor of Tacheles e. V.:
1. In this individual case, the job center must grant the actual costs of accommodation and not just the reasonable costs of accommodation, because even if the help seekers moved without an assurance from the job center, the job center has taken too much time with its decision.
2. Prior assurance is not required if a decision that could have been made within the prescribed time limit has been delayed by the administrative body in bad faith (BSG, judgment of May 6, 2010 – B 14 AS 7/09 R; Bayerisches LSG, judgment of September 24, 2014 – L 8 SO 95/14 on SGB XII).
3. A move is necessary as soon as it becomes unavoidable to leave the current residence (Federal Social Court, Judgment of November 24, 2011 – B 14 AS 107/10 R). Therefore, a move is necessary if the loss of the residence is imminent, for example due to a legally binding eviction order as in the present case.
Source: www.socialgerichtsabilities.de
2.3 – LSG NRW, Decision of 19.05.2022 – L 2 AS 662/22 B ER
Preliminary legal protection for a rental deposit, denied here – non-application of the per capita principle – parent as a party to the tenancy agreement and debtor of the rental deposit
The so-called "one per capita" principle does not apply to the granting of benefits for a rental deposit. In principle, only the person who is liable for the rental deposit according to the tenancy agreement is entitled to benefits (Orientation guide by the editor of Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.:
1. The two minor children are not entitled to the claim because they are not legally obligated to pay the security deposit under the tenancy agreement. The principle of equal contributions per capita does not apply to benefits for a rental deposit because it aims to prevent the de facto joint liability of those not party to the tenancy agreement, particularly the children of a household receiving benefits, for unfulfilled tenancy obligations that would accompany the repayment obligation under Section 42a Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (see Higher Social Court of North Rhine-Westphalia, decision of June 10, 2020, L 6 AS 718/20 B ER; Higher Social Court of Saxony-Anhalt, judgment of October 18, 2018, L 5 AS 295/18).
2. In the present case, it can remain open whether the move out of the previous accommodation was necessary or required for other reasons, since the costs of the new apartment chosen by applicant no. 1 are in any case not reasonable.
Source: www.socialgerichtsabilities.de
2.4 – LSG NRW, Decision of 13.05.2022 – L 6 AS 150/22 B ER, L 6 AS 151/22 B
Consideration of care allowance in the grounds for the order
Guiding principle of the editor of Tacheles e. V.:
Care allowance allocated to or available to a relative, as well as other protected but nevertheless readily available funds, must be taken into account when examining the grounds for the order.
Source: www.socialgerichtsabilities.de
2.5 – Thuringian State Social Court, decision of July 7, 2022 – L 9 AS 7/22 B
Guiding principles of lawyer Claudia Zimmermann:
1. An objection can also be raised against an administrative act that has not become effective due to lack of notification, if the authority claims to have issued an administrative act of a specific content.
2. If the authority does not rely on the lack of notification and thus also not on the validity of the decision, the objection is nevertheless successful within the meaning of Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), if the authority has established a legal situation which, at least objectively, corresponds to the interest of the objector.
3 Here: Objection to an unannounced cancellation and reimbursement order, which had, however, already had external effect because the collection of the claims was being pursued; in response to the objection, the authority waived all claims arising from the order or no longer asserted them.
Source: www.razimmermann.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, judgment of July 4, 2022 – S 123 AS 8864/20
Basic income support for job seekers; income determination; self-employment; business income and expenses; COVID-19 emergency aid; relevant period; cash basis accounting
Principle
1. The Corona emergency aid does not constitute business income, but is merely to be deducted from actual business expenses incurred in the relevant period.
2. The accrual principle, which generally applies under the German Social Code, Book II (SGB II), does not apply to the Corona emergency aid. Rather, its strict earmarking necessitates a strict monthly approach, which is solely intended to cover operating expenses during the period for which the aid is specifically designated.
Source: gesetze.berlin.de
Editor's Note:
The Corona emergency aid was intended to safeguard economic existence and bridge liquidity shortfalls, but not to cover private living expenses. Given this clear purpose, it cannot be considered business income (see Berlin-Brandenburg Higher Social Court, judgment of September 15, 2021 – L 18 AS 884/21; Saxony Higher Social Court, decision of January 26, 2021 – L 8 AS 748/20 B ER; Hamburg Social Court, decision of October 19, 2020 – S 13 AS 2583/20 ER; Leipzig Social Court, decision of May 27, 2020 – S 24 AS 817/20 ER).
3.2 – SG Berlin, Decision of 01.06.2022 – S 123 AS 2394/22 ER
Guiding Principles
1. Periods of imprisonment must be taken into account when considering the exception to the exclusion from benefits for job-seeking foreigners pursuant to Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II). The indeterminate legal term "habitual residence" is to be considered purely factually and independently of any substantive right to freedom of movement.
2. Continuous proper registration throughout the entire five-year period of Section 7 Paragraph 1 Sentence 4 SG II is not required.
3. Costs for accommodation and heating are to be reduced by the amount attributable to household energy, even within the framework of an all-inclusive rent, provided that a justified derivation of the reduction amount is possible. This is the case, for example, if the tenancy agreement contains a clear breakdown of the cost items.
Source: gesetze.berlin.de
3.3 – Social Court Kiel, decision of 02.02.2022, S 43 AS 5/22 ER
Work is also worthwhile for pensioners with wives receiving unemployment benefits (ALG II) – an article by attorney Helge Hildebrandt
If one spouse lives on ALG II (unemployment benefit II) and the other on a pension and additional earned income, an allowance of 30% (but no more than 50% of the standard benefit level 1 of currently €449) is to be deducted from the earned income in accordance with Section 82 Paragraph 3 Sentence 1 SGB XII.
In the case decided by the court, the husband lived on his old-age pension and additional income from a part-time job. His somewhat younger wife was unemployed and received unemployment benefit II (ALG II) from the Kiel Job Center. The Job Center granted the husband only a tax-free allowance of €30.00 (the so-called insurance allowance) on his earned income and offset the husband's so-called excess income – that is, the portion of his pension and earned income that exceeded his own basic living expenses – against his wife's ALG II entitlement.
The Kiel Social Court ruled that the husband's actions were unlawful. While adjusting his income according to the principles of the German Social Code, Book II (SGB II) was not possible because he was no longer eligible for benefits under Section 11b, paragraphs 2 and 3 of the SGB II due to exceeding the age limit, an income adjustment based on the rules for basic income support for the elderly (Section 82, paragraph 3, sentence 1 of the German Social Code, Book XII (SGB XII)) was also not directly applicable because the husband himself was not in need of assistance and therefore had no entitlement to basic income support for the elderly. This so-called "unintended regulatory gap," however, was incompatible with the principle of equal treatment enshrined in Article 3 of the German Basic Law and therefore had to be closed by applying the allowance provision of Section 82, paragraph 3, sentence 1 of the SGB XII by analogy.
Due to the husband's higher allowance – in this case around €100 – €100 less was deducted from the wife's ALG II entitlement, so she received €100 more in ALG II.
Social Court Kiel, decision of 02.02.2022, S 43 AS 5/22 ER
First published in HEMPELS 7/2022
Source: Sozialberatung-kiel.de
Social Court Kiel, decision of February 2, 2022 (S 43 AS 5/22 ER)
Guiding principle by Dr. Manfred Hammel:
If, in a household of a married couple living in a household receiving benefits (§ 7 para. 3 no. 3a SGB II), the wife receives benefits according to §§ 19 ff. SGB II, but the husband is excluded from claiming benefits under SGB II due to receiving an old-age pension according to § 7 para. 4 sentence 1 SGB II and receives monthly pension payments of EUR 588.81 plus income earned through marginal employment, then the job center may, according to § 9 para. 2 sentence 1 SGB II, take this income into account when calculating benefits according to §§ 19 ff. SGB II for the wife, but must also apply the allowance specified in more detail in § 82 para. 3 sentence 1 SGB XII to the husband's income.
Any other decision, which disadvantages the members of the group of persons “communities of need consisting of an employable but not employed person entitled to benefits under the German Social Code, Book II (SGB II) and a partner not entitled to benefits who is nevertheless included in the benefit system of the SGB II via horizontal calculation”, is incompatible with the general principle of equality arising from Article 3 Paragraph 1 of the German Basic Law.
This regulatory gap is to be closed by applying Section 82 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) accordingly.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, Decision of 28.06.2022 – L 9 SO 140/22 B ER
Asset verification suspended for only six months during the pandemic – this also applies to services provided solely as loans
Asset protection for social assistance recipients only applies for 6 months during the pandemic (contrary to the decision of the North Rhine-Westphalia State Social Court of 11 February 2022 – L 21 AS 66/22 B ER, headnote editor).
Guiding principle of the editor of Tacheles e. V.:
1. Rejection of the preliminary injunction, because the provision in § 141 para. 2 SGB XII is not applicable, since the disregard of assets applies (only) for a period of six months.
2. Once this period has expired, the extended asset protection no longer applies. The Senate therefore does not follow the view that the suspension of the asset assessment applies for the first six months of each benefit period to both initial and renewal applications, and also to multiple consecutive applications (see the decision of the Higher Social Court of North Rhine-Westphalia of February 11, 2022 – L 21 AS 66/22 B ER).
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Bayern, decision of 4 May 2022 (L 8 AY 35/22.B.ER)
Principle Dr. Manfred Hammel
§ 1 para. 1 no. 4 AsylbLG is not applicable in cases where a temporary suspension of deportation due to unclear identity has been granted in accordance with § 60b AufenthG.
Although the tolerated stay under Section 60b of the Asylum Seekers' Benefits Act (AsylbLG) is merely a subcategory of the "general tolerated stay" regulated in Section 60a AsylbLG, the tolerated stay granted after a legally binding rejection of an asylum application under Section 60b AsylbLG aims to prevent the legalizing effect of the tolerated stay under Section 60a of the Residence Act (AufenthG).
In this case, only an entitlement to benefits according to § 1 para. 1 no. 5 AsylbLG can be affirmed.
An abuse of rights in influencing the length of stay within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) exists if the applicant has in the past only cooperated inadequately in obtaining necessary travel documents for return home, and the authorities have issued a clear indication of the possibility of ordering a reduction of approved social benefits in the event of inadequate cooperation.
This constitutes a violation of the obligation to cooperate in obtaining necessary identity documents, as stipulated in Section 48 Paragraph 3 of the Residence Act.
Section 1a paragraph 1 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) ("restriction of entitlement") does not preclude an entitlement to basic benefits pursuant to Sections 3 and 3a of the AsylbLG. A single mother applicant can assert an entitlement to basic benefits at level 1 (Section 3 paragraph 1 no. 1 and paragraph 2 no. 1 of the AsylbLG), even if she is accommodated in "comparable other accommodation" within the meaning of Section 3a paragraph 2 no. 2b) of the AsylbLG, but lives there only with her son, and not with a partner or any other person with whom she has a mutual support arrangement.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – ECJ and BVerfG: Exclusions from child benefits for certain non-German nationals are inadmissible – an article by Claudius Voigt
Continue reading: ggua.de
6.2 – Newsletter – 12 – 2022 by Attorney Volker Gerloff
here: www.ra-gerloff.de
6.3 – Federal Constitutional Court: Exclusion of foreign nationals with humanitarian residence permits from child benefits is unconstitutional
Press release no. 67/2022 of August 3, 2022
here: www.bundesverfassungsgericht.de
6.4 – The Ombudsman informs: Citizens' rights regarding rising heating costs, a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
Note: See also:
Thomé Newsletter 29/2022 from July 31, 2022
and
Regarding the entitlement to reimbursement of annual heating and operating cost statements for recipients of SGB II/SGB XII/AsylbLG benefits and non-recipients, by Harald Thomé / Tacheles – Online Editorial Team
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
