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 9/21 R):
Guiding principle Dr. Manfred Hammel:
A subsequent payment of overtime compensation constitutes earned income to be taken into account by the job center pursuant to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), without the aspect of the distribution of this special inflow of capital during the period of need contradicting this and leading to a change in benefits provisionally granted pursuant to Section 41a of the German Social Code, Book II (SGB II).
In the case of retroactive overtime pay, a one-off payment is deemed to exist in accordance with Section 11 Paragraph 3 Sentences 1 and 2 of the German Social Code, Book II (SGB II), provided that it is not a regularly recurring payment, i.e., it is exhausted in a single payment.
When distributing this one-off income in accordance with Section 11 Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II), the deductions for gainful employment attributable to this capital inflow according to Section 11b Paragraph 1 Sentence 1 Numbers 1, 2, 5 and 6 of the German Social Code, Book II (SGB II), must always be deducted in advance, i.e., before any distribution over a period of six months.
There is no basis for considering only a portion of the claim in Section 11b Paragraph 1 Sentence 1 No. 6 of the German Social Code, Book II (SGB II), which refers without restriction to Section 11b Paragraph 3 of the SGB II.
The incentive function associated with the deductions under Section 11b of the German Social Code, Book II (SGB II), also speaks in favor of fully taking into account the allowance according to this standard in this advance deduction.
A one-off income must always be taken into account by the job center as reducing the need for benefits starting from the month following the month in which it is received.
Section 11, paragraph 3, sentence 3 of the German Social Code, Book II (SGB II) also applies in the case of the final determination of the benefit entitlement after a provisional grant of benefits in accordance with Section 41a SGB II. Accordingly, if benefits have already been paid for the month of receipt without taking the one-off income into account, such one-off income will (only) be taken into account in the following month.
1.2 – Federal Social Court, judgment of March 29, 2022 (B 4 AS 24/21R):
When advance payments of wages are received, the deductions for employment-related expenses must also be taken into account in the month in which they are received, even if a settlement is only made in the following month (guideline of the editor of Tacheles e. V.)
Guiding principle Dr. Manfred Hammel:
Advance payments received by a person living in a household receiving benefits in accordance with Section 7 Paragraph 3 No. 3c) of the German Social Code, Book II (SGB II), on their earned income must always be taken into account by the job center as income reducing their needs in accordance with Sections 11 et seq. of the German Social Code, Book II (SGB II).
However, this SGB II provider must also recognize the deductions according to § 11b SGB II.
In the case of such an inflow of capital, the job center must deduct the allowances for gainful employment in accordance with Section 11b of the German Social Code, Book II (SGB II), when calculating the entitlement to benefits under Sections 19 et seq. of the SGB II in the month in which an applicant can have access to these sums.
This also applies if the applicant's employer only carries out the final settlement of the earned income in the following month, as this constitutes ongoing income within the meaning of Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II). The legal basis for this inflow of capital is the employment contract, which provides for regular payments.
Under these circumstances, a basic allowance of EUR 100,- pursuant to Section 11b Paragraph 2 Sentence 1 SGB II as well as an employment allowance pursuant to Section 11b Paragraph 1 Sentence 1 No. 6 in conjunction with Paragraph 3 SGB II must be recognized by the job center.
The monthly principle applies here. For systematic reasons, expenses must always be deducted from the income received in the month in which they are due, which is why the deductions must be applied analogously. The cash basis principle is contrasted here with the cash outflow principle. Therefore, allowances are only relevant in the month of receipt.
The objectives of both the basic and the earned income allowance, namely to contribute to administrative simplification and to create a financial incentive to take up or maintain employment, do not depend on whether the earned income has already been fully accounted for by the employer when it is paid out in full, or whether this amount is paid in advance and only as a partial sum.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Saxon State Social Court, decision of 08.08.2022 – L 6 AS 431/21 NZB
Guiding Principles:
The question of whether juvenile detention falls under the exclusion of benefits pursuant to Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), can be clearly answered by interpreting the law and therefore does not constitute a legal question of fundamental importance requiring clarification within the meaning of Section 144 Paragraph 2 No. 1 of the German Social Courts Act (SGG).
Commentary on
basic income support for job seekers – On the fundamental importance of a legal case when the clarification of the legal question results from the interpretation of the law
Source: www.socialgerichtsabilities.de
Editor's note:
a. Opinion of the Higher Social Court of Saxony-Anhalt, judgment of 24 September 2014 – L 4 AS 318/13 (Tacheles case law ticker week 5/2015) and of the Higher Social Court of Hesse of 24 November 2011 – L 1 AS 162/10
2.2 – Saxon State Social Court, decision of 12 July 2022 – L 3 AS 290/22 B ER
The principles set
forth in Section 929 Paragraph 2 Sentence 1 of the German Code of Civil Procedure (ZPO), according to which the execution of an arrest warrant is inadmissible if one month has passed since the day on which the warrant was issued or served on the party at whose request it was issued, are no longer applicable in social court proceedings since the amendment of the referral rule in Section 86b Paragraph 2 Sentence 4 of the German Social Court Act (SGG) on October 25, 2013.
Source: www.socialgerichtsabilities.de
2.3 – Saxon State Social Court, decision of 09.08.2022 – L 3 AS 1161/21 NZB
Guiding Principles:
The term "relevant standard benefit" in Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is self-explanatory. Synonyms for the term "relevant" are "decisive," "leading," "guiding," and "leading."
Source: www.socialgerichtsabilities.de
2.4 – LSG Hessen, decision of 18.08.2022 – L 6 AS 336/22 B ER
Guiding principles
for the interpretation of Section 6 of the Unfairness Ordinance
Source: www.socialgerichtsabilities.de
2.5 – Thuringian State Social Court, judgment of 11 August 2021 – L 10 AL 180/20 – pending before the Federal Social Court under file number B 11 AL 43/21 R
Retroactive effect of personal unemployment registration in the event of lack of availability of the Federal Employment Agency (BA), printed in info also 2022, 173
Editorial principle:
The exception in Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) regarding the retroactive effect of personal unemployment registration in the event of the employment agency's lack of availability for service is not applicable to the case of the first day of renewed unemployment registration after an interruption of unemployment due to incapacity for work.
Editor's note:
aA SG Nordhausen, judgment of 20 April 2021 – S 18 AL 615/19 (published in the Tacheles case law ticker, week 23/2021)
1. SG Nordhausen, Judgment of 20.04.2021 – S 18 AL 615/19
Regarding the application of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) – entitlement to unemployment benefits – personal registration as unemployed – retroactive effect in case of lack of willingness to work
Principle (Editor):
If the responsible employment agency is not available on the first day of the unemployed person's unemployment, a personal registration on the next day on which the employment agency is available is retroactive to the day on which the employment agency was not available (contrary to SG Berlin, judgment of 21 January 2020 – S 120 AL 207/18).
2. Saxon State Social Court, Judgment of 08.07.2021 – L 3 AL 57/20 – Appeal pending BSG B 11 AL 40/21 R and Saxon State Social Court, Judgment of 08.07.2021 – L 3 AL 67/20 – Appeal pending BSG B 11 AL 41/21 R (Is the retroactive effect of a personal registration as unemployed in the absence of the Employment Agency's availability for service pursuant to Section 141 Paragraph 3 SGB III in the version applicable until 31.12.2021 (since then Section 141 Paragraph 2 SGB III) limited to the first day of unemployment – published in the Tacheles Case Law Ticker KW 09/2022)
Guiding principles (www.sozialgerichtsbarkeit.de)
1. The wording of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) refers to the retroactive effect of a registration as unemployed on the first day of "unemployment".
2. The two legally defined terms “unemployment” and “unemployment” cannot be equated in terms of their wording and the systematic structure of the law within the framework of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III).
3. The conditions for an expansive interpretation of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) to include the first day of "unemployment" are not met.
4. There is no unintended regulatory gap that would justify applying Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) analogously to the first day after the end of incapacity for work or receipt of sick pay.
5. Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) is compatible with Article 3 Paragraph 1 of the German Basic Law (GG).
3. State Social Court of Saxony-Anhalt, Judgment of 08.07.2021 – L 3 AL 115/20 – pending before the Federal Social Court – B 11 AL 39/21 R (Is the retroactive effect of personal registration as unemployed in the absence of the Employment Agency's availability for service pursuant to Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) in the version applicable until 31.12.2021 (since then Section 141 Paragraph 2 SGB III) limited to the first day of unemployment or does it also apply in the case of the first day after the end of incapacity for work or receipt of sick pay?)
Official Headnotes:
1. When interpreting Section 141 Paragraph 3 of the German Social Code, Book III (SGB III), the two legally defined terms "unemployment" and "unemployment" cannot be equated. (BECKRS, 2021, marginal note 32)
2. There is no unintended regulatory gap justifying an analogous application of the regulation concerning the retroactive effect of a personal unemployment registration in the event of the employment agency's lack of availability to the case where the personal unemployment registration cannot take place on the first day of the unemployed person's unemployment due to illness. (Paragraph 33, Beckr's Journal 2021)
3. There are no constitutional concerns regarding the limitation of the retroactive effect provision in Section 141 Paragraph 3 of the German Social Code, Book III (SGB III) to the first day of unemployment. (BECKRS 2021, marginal note 62)
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Saxony-Anhalt, decision of 17 August 2022 (L 2 AL 16/21.B):
Guiding principle Dr. Manfred Hammel:
An important reason for voluntarily terminating the current employment relationship without a concrete prospect of subsequent employment, which, according to § 159 para. 1 sentence 1 in conjunction with para. 2 no. 1 SGB III, regularly justifies the imposition of a "waiting period for leaving employment", can consist of enabling the right of access to one's biological son by giving up the previous job.
The father, as the bearer of the fundamental parental right arising from Article 6 Paragraph 2 Sentence 1 of the Basic Law and as a person obligated to provide maintenance, is protected here in his decision as to how he wishes to fulfill his natural responsibility for the upbringing of his child.
This must also be taken into account in connection with the interpretation and application of Section 159 of the German Social Code, Book III (SGB III), especially when the child's father is constantly working away from home on construction sites in various locations throughout Germany and is repeatedly absent for up to three weeks at a time due to work-related reasons. This clearly conflicts with his right of access every two weeks to his minor son, who lives far away and still resides with his mother.
The reason “exercise of visitation rights” for the employee’s own termination of the previous employment relationship is plausible, especially if the employee can demonstrate that a change in his working hours was not possible with his previous employer, and that he had unsuccessfully discussed this with management.
The aspect of the violation of visitation rights can also constitute a particular hardship within the meaning of Section 159 Paragraph 3 Sentence 2 No. 2b) of the German Social Code, Book III (SGB III). If the objective circumstances do not establish an important reason within the meaning of Section 159 Paragraph 1 Sentence 1 of the SGB III, then the subjective necessity for a father to establish close contact with his child can also justify the affirmation of a particular hardship.
Source: Attorney Claudia Zimmermann
Principle:
1. The legal remedy information in a decision is incorrect, with the consequence that the one-year period according to § 66 para. 2 sentence 1 SGG applies, if it does not mention the possibility of submitting an objection electronically.
2. Enabling contact with the child, taking into account the fundamental parental right under Article 6 Paragraph 2 Sentence 1 of the Basic Law, can constitute an important reason within the meaning of Section 159 Paragraph 1 of the German Social Code, Book III, for the termination of an employment relationship.
3. Even if the objective circumstances do not constitute a valid reason, a subjective necessity for a parent to establish close contact with the child may justify the assumption of particular hardship and thus, pursuant to Section 159 Paragraph 3 Sentence 2 No. 2 lit. b) of the German Social Code, Book III (SGB III), the reduction of the disqualification period to six weeks.
Attorney Volker Gerloff also commented on this on Twitter:
If a father cannot adequately exercise his visitation rights with his child due to work, resignation is justified = no waiting period for unemployment benefits (ALG I).
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Berlin of 22.08.2022 – S 90 SO 1003/22 ER
The lack of proof by the social welfare provider that sufficient housing is available at the determined values renders its concept for the costs of accommodation inconclusive, so that, in the absence of a conclusive concept, the housing benefit values plus a safety margin of 10% apply (Orientation aid editor of Tacheles e. V.).
Also in the SGB XII – no application of the AV Wohnen – an article by attorney Kay Füßlein, Berlin
Since a very well-established body of case law has already developed regarding the appropriate rent according to § 22 SGB II (No application of the AV Wohnen; what now? The costs of accommodation under Hartz IV may not be determined solely as a lump sum according to the AV Wohnen).
Unsurprisingly, the Social Court of Berlin has also adopted this legal opinion in the area of SGB XII, which means that significantly higher rents are also appropriate for recipients of SGB XII benefits.
SG Berlin is performing.
"In the Chamber's view, the AV-Wohnen (a specific housing concept) does not represent a conclusive concept. According to the Chamber's understanding, it does not ensure that a sufficiently significant number of apartments are actually available at the stated values. In the Chamber's view, the availability test is part of determining abstract adequacy. Unless proof is provided that sufficient housing is available at the calculated values, the Chamber believes that such a concept can no longer be considered conclusive.".
Decision of the Social Court of Berlin of 22.08.2022 - S 90 SO 1003/22 ER
4.2 – SG Hannover, judgment of June 7, 2022- S 81 SO 440/21
American emergency coronavirus aid reduces social welfare!
Guiding principle of the editor of Tacheles e. V.:
1. The American Corona emergency aid is considered income that must be taken into account to reduce the need for assistance.
2. Self-help generally takes precedence over state aid.
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Exemption from the obligation to pay broadcasting fees when the social security minimum subsistence level is not met, a contribution by attorney Helge Hildebrandt, Kiel
More information: sozialberatung-kiel.de
5.2 – The city of Leipzig will adjust the guideline values for the costs of accommodation (KdU) from 01 October 2022 to reflect the development of rental prices.
More information: www.l-iz.de
5.3 – The level of standard benefits for 2023 is announced: they are and will remain poverty-level benefits – Harald Thomé on Twitter
Continue reading: twitter.com
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
