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 18 May 2022 (B 7/14 AS 27/21.R):
Guiding principle Dr. Manfred Hammel:
The issuance of a right of free movement pursuant to Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act/EU for a person self-employed in the federal territory requires that a gainful activity is actually carried out for an indefinite period by means of a specific establishment or organization, without the profit generated having to cover the necessary minimum subsistence level.
The registration of a business (here: "kitchen helper, cleaner, hotel assistant") as such is not sufficient in this context and does not preclude the application of Section 7 Paragraph 2 Sentence 1 No. 1 SGB II by the job center, provided there are no convincing indications of a corresponding exercise of this self-employed activity.
1.2 – Federal Social Court, judgment of March 24, 2022 (B 10 ÜG 2/20.R):
Guiding principle Dr. Manfred Hammel:
A claim for compensation in money due to unreasonable length of proceedings, asserted by a recipient of unemployment benefit II (§§ 19 ff. SGB II) in accordance with § 198 GVG, does not transfer to the responsible job center pursuant to § 33 para. 1 sentence 1 SGB II.
This is not income to be taken into account pursuant to Section 11a Paragraph 3 of the German Social Code, Book II (SGB II), as there is no identity of purpose with the benefits pursuant to Sections 19 et seq. of the SGB II. The claim for compensation under Section 198 of the Courts Constitution Act (GVG) is not intended to provide funds for necessary living expenses, but rather to compensate for non-material damages suffered as a result of the unreasonable length of the original proceedings.
Subject to the specific circumstances of each individual case, the courts of first instance are to be granted a preparation and deliberation period of up to twelve months per instance in matters under the German Social Code, Book II (SGB II). This is not an unreasonable length of proceedings that must be justified by concrete steps to expedite the proceedings. This twelve-month rule ensures legal certainty and predictability in social court practice.
However, a plaintiff is not required to accept a flat three-month period without compensation for a procedural standstill due to illness.
The illness of the presiding judge is not merely an external influence on social court proceedings, but falls within the responsibility and sphere of influence of the respective court and thus the judiciary. It is their duty to ensure necessary representation and thereby fully comply with the right to access to justice. Insufficient material or personnel resources within the social court system cannot, in itself, constitute a valid reason for extending the duration of proceedings.
However, for this disadvantage suffered due to this period of judicial inactivity, a plaintiff cannot claim higher compensation than the monetary compensation of EUR 100 per month stipulated in Section 198 Paragraph 2 Sentence 3 of the Courts Constitution Act (GVG), unless special circumstances can be cited.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Schleswig-Holstein, Judgment of February 24, 2022 (L 6 AS 89/19):
Guiding principle Dr. Manfred Hammel:
In cases according to § 34 SGB II (“Claims for compensation in the case of socially unacceptable behavior”), the job center must first decide on the determination of a liability for compensation in principle and only then, in a further step, on the amount of claims made on the basis of this standard.
Socially unacceptable conduct within the meaning of Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), requires a heightened degree of culpability. In the case of a conduct-related dismissal, this can only be affirmed if the termination of the employment relationship due to such conduct is indisputably lawful and would therefore have justified the imposition of a sanction pursuant to Section 31 Paragraph 2 Number 4 of the SGB II in conjunction with Section 159 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book III (SGB III) ("waiting period for job abandonment"). Any existing doubts preclude the application of Section 34 of the SGB II, which requires deeply reprehensible conduct and a narrowly defined exceptional circumstance.
Only serious breaches of the employment contract or breaches of a significant duration permit an employer to issue a dismissal, which must always be the last resort ("ultima ratio") if continued employment is unreasonable for operational or personal reasons.
If an employee was absent from work without excuse on Monday, July 13th, and the employer issued him a formal warning on that same day, the first working day after the expiration of his sick leave certificate, and on July 15th this employee received a conduct-related dismissal due to a further absence from work, then this speaks against the legal validity of this action, especially since a further warning issued two months earlier referred solely to his "sluggish work ethic".
This employee, who was declared unfit for work, was overwhelmed by the entire situation, only applied for benefits under the German Social Code Book II (SGB II) several weeks after receiving sick pay, and resumed employment after a few months.
In such circumstances, a job center may not assume socially unacceptable behavior according to § 34 para. 1 sentence 1 SGB II.
Note:
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.).
2.2 – LSG Hamburg, judgment of May 12, 2022 – L 4 AS 256/20
Determination of reasonable accommodation costs by the basic income support provider – supplement for severely disabled persons
Guiding principle
1. The reasonable costs of accommodation must be determined according to a coherent concept applying the product theory. (Paragraph 53)
2. The basic income support provider must then determine the specific appropriateness of the accommodation costs. (Paragraph 71)
3. In this case, a supplement of 10% may be granted to a severely disabled person entitled to basic income support. (Paragraph 72)
4. A higher supplement is excluded, among other things, if the person in need of assistance does not live in a certified wheelchair-accessible apartment. (Paragraph 83)
Source: www.landesrecht-hamburg.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Berlin, Judgment of August 16, 2022 (S 128 AS 10031/19):
Principle by Dr. Manfred Hammel
on the illegality of a sanction notice (§§ 31 ff. SGB II) if the job center, within the framework of this order, announced a reduction of unemployment benefit II by 100 percent, but did not simultaneously decide on the granting of supplementary benefits in kind or benefits of monetary value to an appropriate extent in accordance with § 31a para. 3 sentence 2 SGB II – despite the fact that minor children also live in the household.
This link is necessary, however, to guarantee at least the physical subsistence minimum of the sanctioned person by compensating for the loss of standard benefits due to the sanction. A later grant of supplementary benefits in kind, only upon application, would not fully meet the protective purpose of Section 31a Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), namely the special safeguarding of the subsistence minimum of needy minors.
According to the ruling of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), benefit reductions set by the Jobcenter by 100 percent pursuant to Section 31a Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) are incompatible with Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law and are therefore to be considered unlawful.
Note:
SG Berlin on the unconstitutionality of 100% sanctions: According to the Federal Constitutional Court (BVerfG) of November 5, 2019, 1 BvL 7/16 – a reduction of unemployment benefit II by more than 30 percent of the standard benefit is unlawful.
Continued with RA Kay Füßlein
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Hamburg, judgment of 04/28/2022 – L 4 SUN 57/20
(Social assistance – subsistence allowance – loan-based benefit – issuance of a basic decision – death of the beneficiary – subsequent determination of the loan modalities by administrative act addressed to the heirs – delimitation of the loan repayment claim from the cost reimbursement claim pursuant to Section 102 of the German Social Code, Book XII)
Principle
1. After issuing the initial decision, the benefit provider is free to determine the loan terms, including the due date for repayment, by means of a second administrative act; this authority is not limited in time. (Paragraph 53)
2. The subsequent determination of the loan terms does not always have to be made to the recipient while they are still alive. (Paragraph 54)
3. When loans are provided, the claim for repayment of the loan, as a debt originating from the deceased, already reduces the value of the estate at the time of death (so-called debt of the deceased, cf. Section 1967 Paragraph 2 of the German Civil Code). This claim for repayment precludes a claim for reimbursement of costs relating to the same object under Section 102 of the German Social Code, Book XII. (Paragraph 56)
Source: www.landesrecht-hamburg.de
4.2 – Saxon State Social Court, Judgment of 13 July 2022 – L 8 SO 48/21 – Appeal allowed
Principle:
The separation of integration assistance from social welfare law in Book Twelve of the German Social Code (SGB XII) and its classification as Part 2 of Book Nine of the German Social Code (SGB IX) does not constitute a "strict system change." The "old" integration assistance under SGB XII is essentially the same in content as the "new" integration assistance, which is why there is no obstacle to the transfer of responsibilities by the providers of integration assistance (contra: Federal Social Court, judgment of January 28, 2021 – B 8 SO 9/19 R). In particular, integration assistance remains a tax-financed, needs-based benefit, which is classified as "public welfare" under Article 74 Paragraph 1 No. 7 of the Basic Law (GG).
2. The decisions issued under Book XII of the German Social Code (SGB XII) did not become moot on December 31, 2019, pursuant to Section 39 Paragraph 2 of Book X of the German Social Code (SGB X). Therefore, actions seeking integration assistance benefits that were filed before this date do not become inadmissible on January 1, 2020, with the consequence that, at most, a conversion to a declaratory judgment action would have to be considered.
3. Benefits under the Visitation Allowance (§ 115 SGB IX) may also include the reimbursement of the costs of personal assistance if the disabled person is otherwise unable to make a visit.
Source: www.socialgerichtsabilities.de
4.3 – Lower Saxony-Bremen State Social Court, decision of 24 August 2022 – L 8 SO 56/22 B ER
Lower Saxony State Social Court decision in preliminary law regarding the increase of the standard benefit in 2022 due to the inflation-related loss of purchasing power, here rejected.
Social assistance rates remain constitutional despite inflation and loss of purchasing power (Guiding principle of the editor of Tacheles e. V.)
Source: www.herbertmasslau.de
Note: See regarding SGB II:
Baden-Württemberg Higher Social Court, judgment of 20 July 2022 – L 13 AS 1162/22 – Hartz IV rates remain constitutional despite inflation
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Hessian State Social Court – Decision of 10 August 2022 – Case No.: L 4 AY 22/22 B
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, legal aid
The Federal Constitutional Court is currently considering, under file number 1 BvL 3/21, the question of assessing the level of benefits for asylum seekers in communal accommodations, which is also relevant to the present proceedings.
Continued with attorney Sven Adam
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Social law expert: Bring forward housing benefit reform to October
Harald Thomé, a social law expert from Wuppertal, sees the gas surcharge as a genuine instrument of solidarity. However, without swift and targeted state aid for low-income earners, millions of citizens face insolvency. The expert explains what needs to be done in an interview with "epd sozial".
Read more at: epd.de
6.2 – New working aid from the Paritätische Gesamtverband (Parity Welfare Association):
Better safe than sorry. The right of permanent residence for EU citizens and their family members – new guidance for advisory practice
More information: www.der-paritaetische.de
6.3 – 1 September 2022: Disenfranchisement and discrimination against third-country nationals from Ukraine will intensify
Continue reading: ggua.de
6.4 – Landlord may not cut off gas supply
A landlord in Frankfurt cut off his tenants' gas and hot water due to the energy crisis. The administrative court has now ruled that he was not allowed to do so. The court stated that the supply of hot water is a minimum standard for decent housing – Case No.: 8 L 1907/22.F
More information: www.tagesschau.de
6.5 – Nahles: Federal Employment Agency can help with high heating bills
The new head of the Federal Employment Agency, Andrea Nahles, has pointed out available assistance with paying bills such as heating costs. "Employees whose income falls below the subsistence level are entitled to assistance – and if other social benefits are not available in sufficient amounts, then basic income support will help," Nahles told the Frankfurter Allgemeine Zeitung (Saturday).
The job centers would then check how high the household's income is compared to the standard benefit rate and whether there might be an entitlement to benefits other than basic income support. "But the core message is clear: Anyone who doesn't know what to do in such a situation can also contact the job center," Nahles told the newspaper.
Continue reading: de.investing.com
Note: See also social law expert Harald Thomé:
On the entitlement to reimbursement of annual heating and operating cost statements for recipients and non-recipients of benefits under SGB II/SGB XII/AsylbLG: tacheles-sozialhilfe.de
Here's another tip from me regarding the procurement of heating oil and one-off heating materials for those not receiving ALG II benefits: Hartz IV for the month of the heating oil order
Expenditures for an annual supply of heating materials must be recognized in the month they are due as a heating expense, even if it is not expected that subsistence benefits under the German Social Code, Book II (SGB II) will be received for the entire period. Reference to savings to cover current heating costs or the crediting of (projected) future income is not permissible
(Federal Social Court [BSG], Judgment of May 8, 2019 – B 14 AS 20/18 R; Saxon State Social Court [LSG], Judgment of May 29, 2018 – L 8 AS 1026/14; Thuringian State Social Court [LSG], Judgment of October 26, 2017 – L 9 AS 1668/15; Saxon State Social Court [LSG], Decision of February 25, 2013 – L 2 AS 141/13 B ER and Social Court [SG] Nordhausen, Judgment of November 10, 2015 – S 13 AS 1351/14).
Expenses for an annual supply of heating materials can also be applied for once by sick people, recipients of full disability pensions or old-age pensioners at the social welfare office in accordance with Section 35 of the German Social Code, Book XII (cf. regarding the assumption of the annual waste disposal fee, the judgment of the Baden-Württemberg State Social Court of 25 March 2021 – L 7 SO 3429/20).
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
