1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, judgment of 10/06/2022 – B 8 SO 1/22 R
Basic income support for job seekers – additional needs allowance for severely disabled persons – retroactive granting of a full disability pension – application – legally binding rejection
Entitlement to additional needs for severely disabled persons according to § 30 para. 1 no. 2 SGB XII from the time of determination of full incapacity for work (principle of editor of Tacheles e. V.).
Guidance note by the editor of Tacheles e. V.
1. Section 30 Paragraph 1 No. 2 of the German Social Code, Book XII (SGB XII) does not refer to the point in time of a formal determination of full incapacity for work by the pension insurance institution, but rather to the fact that the persons concerned are fully incapacitated for work.
2. The required timely application was not lacking. By applying for benefits under Book XII of the German Social Code (SGB XII) at the defendant's job center, citing his ongoing incapacity for work and his progressive cancer, the plaintiff also submitted the necessary application for basic income support benefits under Chapter 4 of Book XII of the German Social Code (SGB XII).
Source: www.bsg.bund.de
1.2 – BSG, judgment of 10/06/2022 – B 8 SUN 7/21 R
Accommodation costs – income assessment – appropriateness – coherent concept
Guidance note for the editor of Tacheles e. V.
1. Rejection to the LSG.
2. A request to reduce costs must also be issued for the spouse who is not entitled to benefits (Section 35 Paragraph 2 Sentence 1 SGB XII).
Source: www.bsg.bund.de
Note from the editor of Tacheles e. V.:
Accommodation costs for social welfare recipients
Continue reading at beck.de/aktuell
1.3 – BSG, judgment of October 6, 2022 – B 8 SO 2/21 R
Emergency assistance claim – cost coverage – inpatient emergency room – assignment – legal representation
Regarding the existence of knowledge on the part of the social welfare provider of the eligibility requirements that would preclude the claim for emergency assistance under Section 25 of the German Social Code, Book XII (SGB XII)
Guidance note by the editor of Tacheles e. V.
1. No claim as an emergency aid provider (§ 25 SGB XII), because the defendant was already aware of the patient's potential emergency situation on the first day of treatment and thus any claims of the patient for assistance in case of illness (cf. § 19 para. 3, § 23 para. 1 sentence 1 SGB XII in conjunction with § 48 sentence 1 SGB XII; § 23 para. 3 sentence 5 SGB XII) immediately took effect (cf. § 18 para. 1 SGB XII; BSG of 23.8.2013 – B 8 SO 19/12 R).
2. The plaintiff's claim cannot be derived from the patient's assignment declaration either, because social assistance claims are not transferable (§ 17 para. 1 sentence 2 SGB XII).
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of August 24, 2022 – L 1 AS 401/18
Guiding Principles
: Proof of predominantly business use of a private vehicle within the meaning of Section 3 Paragraph 7 Sentence 3 of the German Social Code, Book II (SGB II) can be provided, in accordance with tax law practice, by means of a logbook or in another suitable form. If a logbook is submitted, it must be kept promptly and in a bound format, stating the date and destination of each trip, as well as the customers/business partners visited or the specific purpose of the business activity. Furthermore, it must fully and sequentially record all trips to be documented, including the total mileage at the end of each trip.
Possession of a traveling trader's license alone is not sufficient to prove predominantly business use.
For self-employed individuals, the premium for commercial liability insurance is to be considered as a deduction and not as a business expense.
Source: www.socialgerichtsabilities.de
2.2 – LSG NRW, judgment of March 2, 2021 – L 7 AS 395/21
Christmas bonuses from T eV are also considered income for benefit recipients who are unable to work
Guiding principle of the editor of Tacheles e. V.:
1. Christmas payments to recipients of supplementary benefits must be taken into account as income (cf. LSG Berlin-Brandenburg judgment of 30.08.2017 – L 32 AS 1605/15).
2. The same applies to non-working benefit recipients, taking into account the wage gap requirement enshrined in Section 111b of the German Social Code, Book II (SGB II).
Source: www.socialgerichtsabilities.de
2.3 – LSG Berlin-Brandenburg, judgment of 08/25/2022 – L 29 AS 1321/17
Determination of the reasonable costs of accommodation by the basic income support provider
Guiding principle of the editor of Tacheles e. V.:
1. The appropriateness of housing costs is not to be measured against the WAV standard. It cannot be established that the WAV guideline tables, which continued to be used until June 2015, were based on a coherent concept for determining net rent, just as it cannot be established for the AV-Wohnen 2015.
2. In the absence of a conclusive concept, the appropriate reference rent is to be determined by referring to the table values of § 12 WoGG plus a safety margin of 10%.
Source: www.socialgerichtsabilities.de
Editor's note:
See also LSG BB, judgment of April 7, 2022 – L 10 AS 2286/18 – regarding the periods March to December 2015 and February to July 2016; LSG BB, judgment of March 16, 2022 – L 1 AS 456/21 WA – regarding the benefit period December 2016 to July 2017; and the 18th Senate, judgment of August 10, 2022 – L 18 AS 225/20 – regarding the benefit period August 2017 to July 2018 (unpublished, as far as can be seen).
3. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
3.1 – SG Munich, judgment of September 7, 2022 – S 40 AS 1478/21
The guiding principles
of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) are not applicable to moves from accommodations with reasonable costs. In particular, in the case of unnecessary moves, a cap may be imposed in accordance with Section 22 Paragraph 1 Sentence 2 of the SGB II.
Source: www.socialgerichtsabilities.de
3.2 – SG Schleswig, Judgment of 10.08.2022 – S 35 AS 635/18 – pending before the BSG B 7 AS 21/22 R
SG Schleswig: Offsetting electricity against gas is not legal
If recipients of benefits under the German Social Code, Book II (SGB II) receive electricity and gas from the same supplier and this supplier offsets an existing electricity credit against a heating cost surcharge in the annual statement, the SGB II benefit provider must cover the entire heating cost surcharge and not just the amount reduced by the electricity credit (statement by the Schleswig-Holstein State Social Court)
Continue to the source of this report: www.soziale-schuldnerberatung-hamburg.de
See also the press release from the Schleswig-Holstein State Social Court dated September 30, 2022.
Note from the editor of Tacheles e. V.:
In the Tacheles legal news ticker week 40/2022, I referred to a decision of the Schleswig-Holstein State Social Court, which was therefore incorrect, i.e., my mistake.
More details can be found in the above article.
Note from the editor of Tacheles e. V.:
This question was previously pending before the Federal Social Court (BSG), but remained unanswered.
SG Schleswig, Judgment of 25 November 2020 – S 9 AS 639/18, appeal pending before the Federal Social Court – B 4 AS 8/21 R
Is a heating cost surcharge to be recognized in full as a need for accommodation and heating even if the energy supplier offsets it against an electricity cost credit and the surcharge amount has thereby been reduced?
Quote from Juris: “The fact that the plaintiff obtains electricity and gas from a single supplier must not result in any disadvantage relevant to her needs (see, for the German Social Code, Book XII: Social Court Schleswig, judgment of September 28, 2017, S 15 SO 122/16 and confirming Higher Social Court Schleswig-Holstein, judgment of September 24, 2020, L 9 SO 72/17).”.
The Federal Social Court (BSG) ruled as follows in its decision of April 11, 2022: www.rechtsprechung-im-internet.de
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – SG Düsseldorf, judgment of August 10, 2022 – S 21 AL 152/21
The conditions for receiving short-time work compensation are met – pandemic – there is no regulation stipulating that only long-standing employment relationships are in need of protection in this respect
Guidance note from the editor of Tacheles e. V.:
1. There is no principle according to which new businesses founded during a pandemic are not covered by the protection of state protection systems – such as short-time work compensation.
2. The wording of the law and the will of the legislator do not support the provision that only long-standing employment relationships are in need of protection in this respect.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG NSB, judgment of July 7, 2022 – L 8 SO 277/18
No additional costs due to a costly diet for so-called non-celiac gluten/wheat sensitivity (NCGS)
1. On the consideration of the most-favored-nation principle in the interpretation of legal remedies.
2. The claim for recognition of a (higher) additional need pursuant to Section 30 Paragraph 5 of the German Social Code, Book XII (SGB XII) can constitute a severable subject of dispute.
3. A change of parties due to a statutory amendment of subject-matter jurisdiction is not possible for claims asserted in the past if the amendment to the law has not resulted in a comprehensive succession of functions (see also BSG of 18.11.2015 – B 9 V 1/15 R – juris para. 14).
4. Regarding the recognition of additional needs due to costly nutrition according to § 30 para. 5 SGB XII; denied here for so-called non-celiac gluten sensitivity or non-celiac wheat sensitivity (NCGS).
Source: www.rechtsprachung.niedersachsen.de
5.2 – LSG North Rhine-Westphalia, decision of 26 January 2022 (L 9 SO 12/22 B ER and L 9 SF 2/22 ER):
Guiding principle by Dr. Manfred Hammel:
The law governing integration assistance (§§ 90 ff. SGB IX) is based on the fundamental assumption that the provision of services by third parties occurs through the so-called social law triangular relationship. Within this framework, three different legal relationships must be distinguished:
Between the beneficiary and the service provider (performance relationship), b) the beneficiary and the provider of integration assistance (basic relationship), and c) between the service provider and the provider of integration assistance (service provision relationship).
This fundamental design of service provision entails a priority of the triangular relationship under social welfare law and a prohibition on conducting procurement procedures.
The purpose of the regulatory system of §§ 123 ff. SGB IX is to guarantee a diversity of providers, which is intended to exist in the interest of quality assurance and the realization of the right of choice of persons entitled to benefits (§ 104 para. 2 sentence 1 SGB IX).
The initiation of tendering procedures is regularly intended to restrict the provision of services to a few, possibly individual, service providers selected through the tendering process. This objective contradicts general principles of social and integration assistance law.
Within the scope of Sections 123 et seq. of the German Social Code, Book IX (SGB IX), the legislator assumes that this procurement instrument is not applicable. The benefits in kind regulated by this contractual law are subject to the principle of agreement pursuant to Section 123 SGB IX, for which tendering procedures are currently excluded.
A tender issued by a provider of integration assistance for the "deployment of integration assistants at schools for children with disabilities within the framework of integration assistance" for the school years 2022/23 and 2023/24, in which the contract is to be awarded to the most economically advantageous offer with particular weighting of price and taking into account the factor "experience in working with people with disabilities", is therefore to be considered unlawful.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – LSG Bayern, decision of 06.09.2022 – L 8 AY 73/22 B ER
Guiding principles
1. A restriction of entitlement pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) requires reprehensible conduct on the part of the beneficiary.
2. The beneficiary must be able to avert the restriction of benefits through his own reasonable actions; in particular, the return to the Member State responsible under the Dublin III Regulation – here Bulgaria – must be reasonable.
3. The legal consequences of Section 1a Paragraph 1 Sentences 2 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) require interpretation in conformity with the constitution.
Source: www.socialgerichtsabilities.de
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Landlords have no independent claim against social welfare authorities for rent payments – An article by attorney Michael Dligatch
What many landlords don't realize is that they have no direct claim against the social welfare office for rent payments. This claim belongs exclusively to the tenant in need. If the social welfare office pays the landlord directly, it is fulfilling a social welfare obligation to the tenant, not a landlord-tenant obligation. Therefore, the landlord cannot demand payments from the office on their own behalf. The tenant is always the debtor of the rent payments. Several rulings in social court jurisprudence confirm this (see, for example, the judgment of the Higher Social Court of Munich of October 12, 2017, case no. L 7 AS 326/17 ZVW, and the judgment of the Higher Social Court of Lower Saxony-Bremen of February 3, 2022, case no. L 11 AS 578/20)
This is practically significant in the following situations:
Continue reading at www.anwalt.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
