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 13.07.2022 – B 7/14 AS 75/21 R
Basic income support for job seekers – consideration of income – tips
Tips generally only reduce the entitlement to unemployment benefit II if they exceed 10% of the relevant standard benefit rate
Guideline from the editor of Tacheles e. V.:
Sometimes, recipients of supplementary Hartz IV benefits are allowed to keep tips from their employment. This applies to monthly tips that do not exceed ten percent of the standard benefit rate.
Guidance note from the editor of Tacheles e. V.:
The tip (here 25 euros) is a non-considered benefit within the meaning of Section 11a Paragraph 5 of the German Social Code, Book II (SGB II). It is not earned income.
Source: www.socialgerichtsabilities.de
1.2 – BSG, judgment of 12/08/2022 – B 7/14 AS 63/21 R
Basic income support for job seekers – inpatient addiction treatment – imprisonment – exclusion from benefits
Guidance note by the editor of Tacheles e. V.
Following the Senate's indication that he intended to follow the decision of the 4th Senate of the Federal Social Court of August 5, 2021 (file number B 4 AS 58/20 R), the plaintiff withdrew his appeal.
Source: www.bsg.bund.de
Editor's note:
This should confirm what the LSG said:
No unemployment benefit II for a person in need of assistance during inpatient drug therapy after imprisonment.
1.3 – BSG, judgment of 12/08/2022 – B 8 SUN 11/20 R
Social assistance – Foreigners – Passport procurement costs
SGB XII subsidy for a new Turkish passport
Guiding principle of the editor of Tacheles e. V.:
If a foreign social welfare recipient lives in a residential facility, he is entitled to a subsidy for his new passport from his country of origin.
Guidance note by the editor of Tacheles e. V.:
The fees charged by the home country for issuing a new passport are to be allocated to the further necessary living expenses within the meaning of Section 27b Paragraph 1, Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII).
The option of supplementary loans to cover needs is not available to benefit recipients in residential care facilities because, unlike the standard benefit rate, the cash allowance does not include any savings. Therefore, there is no unequal treatment compared to benefit recipients who live outside of a residential care facility and receive the full standard benefit rate.
For those receiving benefits in inpatient facilities, the issuance of a substitute identity document is typically ruled out because they can demand a subsidy to cover the passport procurement costs and thus obtain a passport in a reasonable manner.
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 NRW, judgment of June 23, 2022 – L 6 AS 120/17
Editorial statement by Tacheles e. V.:
Accommodation costs in the Märkischer Kreis for recipients of benefits under SGB II/SGB XII are too low, because the basic income support providers do not have a coherent concept in accordance with the case law of the Federal Social Court (BSG).
Guidance note by the editor of Tacheles e. V.:
The fact that the advance payment for operating costs was set on the basis of a two-person household with regard to the person-dependent ancillary costs, even though the plaintiff lived alone in the apartment during the period in dispute, does not preclude its consideration as a need.
Even if the determination of the advance payment was incorrect in this respect, it is eligible to be taken into account as part of the actual expenses because it was based on an agreement made with the landlord and was actually paid by the plaintiff (cf. on this requirement BSG, judgment of 24.11.2011, B 14 AS 15/11 R; judgment of 22.09.2009, B 4 AS 8/09 R).
2.2 – Bay LSG, judgment of November 21, 2022 – L 7 AS 128/22
Guiding principles:
The offer of a measure for activation and vocational integration pursuant to Section 16 SGB II in conjunction with Section 45 SGB III constitutes, in procedural terms, an administrative act aimed at a monetary benefit within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 SGG.
Source: www.socialgerichtsabilities.de
2.3 – LSG NRW, decision of 22.09.2022 – L 2 AS 1918/21 B
Basic income support for job seekers – Notice of refusal – Withdrawal of benefits due to lack of cooperation – Failure to exercise discretion regarding the scope of the refusal
Guiding principle of the editor of Tacheles e. V.:
Granting of legal aid, because there is an error of discretion in the sense of a failure to exercise discretion regarding the scope of the refusal (cf. LSG Berlin-Brandenburg, judgment of 23.11.2021 – L 25 AS 1035/19).
Guidance note by the editor of Tacheles e. V.
Furthermore, there is an abuse of discretion in the sense of a deficit in weighing the factors, because not all discretionary considerations that must be taken into account according to the circumstances of the case were included in the decision-making process (cf. LSG Hamburg, judgment of 17.01.2020 – L 4 AS 269/18).
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
3.1 – Social Court Freiburg, Judgment of 06.04.2022 – S 13 AS 2141/21
Guidance note by the editor of Tacheles e. V.:
Regarding the question of whether the regulations on the revocation of administrative acts (here § 40 SGB II, § 330 para. 3 SGB III, § 48 SGB X) are applicable within the scope of application of § 67 para. 4 SGB II, the answer is affirmative.
Source: www.socialgerichtsabilities.de
3.2 – SG Munich, judgment of June 30, 2022 – S 8 AS 227/20
Guiding principles
: When determining which housing costs are to be considered reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the values according to the table in Section 12 of the Housing Benefit Act plus 10% (housing benefit table + 10%) are not to be used under the following conditions:
1) The concept used by a social security provider to determine rent ceilings is inconclusive
2) A lack of knowledge has occurred,
3) The value according to the housing allowance table + 10% is still below the rent ceiling in the inconclusive concept, and
4) If the provider is unable to improve the concept, has failed to do so despite being requested to do so, or if a request is unnecessary because the provider argues that the value calculated according to the housing allowance table plus 10% is already below the rent limits in the flawed concept, then the actual housing costs must be used as the housing needs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). This is because a reasonable level of need deviating from the actual housing costs has neither been proven by the SGB II benefits provider nor can it be determined by the court. Furthermore, the values calculated according to the housing allowance table plus 10% are clearly insufficient, even based on the flawed concept, to secure the minimum subsistence level. However, the burden of proof for a reasonable housing need that is lower than the actual housing costs lies with the SGB II benefits provider, since Section 22 Paragraph 1 Sentence 1 of the SGB II is based on the principle that the actual housing costs must be used as the basis for calculating needs. Reducing the rent to the reasonable costs is a favorable deviation from this principle for the social security provider (insofar as it is reasonable), meaning that the burden of proof rests with them. However, applying the value according to the housing allowance table plus 10% in the aforementioned cases effectively violates the requirement of effective legal protection (Article 19, Paragraph 4 of the German Basic Law) regarding the judicial review of rent cap concepts.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Schleswig-Holstein Higher Social Court, decision of 24 October 2022 – L 9 SO 99/22 B ER
Guiding principles
1. His need for legal protection for the appeal is not eliminated by the fact that the benefit provider pays in response to a preliminary injunction.
2. The standard entitlement to reimbursement of moving expenses pursuant to Section 35 Paragraph 2 Sentence 6 of the German Social Code, Book XII (SGB XII) requires compelling reasons that are comparable in their legal standing to a landlord's termination of the tenancy. Merely plausible, comprehensible, and understandable interests of the person entitled to benefits are insufficient, but must be taken into account in the discretionary decision to be made pursuant to Section 35 Paragraph 2 Sentence 5 of the SGB XII if the need to move is lacking.
Source: www.socialgerichtsabilities.de
4.2 – LSG Baden-Württemberg, Judgment of 09.11.2022 – L 2 SO 1183/22 – Appeal allowed
Nursing home residents may also be entitled to a one-off coronavirus payment
Guiding principle of the editor of Tacheles e. V.:
Even nursing home residents who only receive assistance for care due to their own income, but receive the cash amount from the social welfare office, may be entitled to the Corona supplement.
Guiding Principles (www.sozialgerichtsbarkeit.de):
The entitlement to payment of the Covid-19 one-off payment of €150 pursuant to Section 144 Sentence 1 of the German Social Code, Book XII (SGB XII) is contingent upon an existing substantive legal entitlement to benefits under Chapter Three or Four. Since, according to the case law of the Federal Social Court (BSG) (Judgment of March 23, 2021 – B 8 SO 16/19 R –), in the case of assistance for care in the form of inpatient care, in addition to the actual costs of the care and the necessary living expenses (included living expenses), the further necessary living expenses, which in particular include the cash allowance pursuant to Section 27b Paragraph 3 SGB XII and the clothing allowance pursuant to Section 27b Paragraph 4 SGB XII, are paid as assistance for living expenses, the entitlements to the cash allowance and the clothing allowance are benefits under Chapter Three of the German Social Code, Book XII (SGB XII).
This means that whenever a resident of a nursing home whose income is insufficient to cover all needs, including the costs of the home, and therefore receives assistance with care, including a cash allowance and a clothing allowance, is also entitled to the one-off payment pursuant to Section 144 Sentence 1 of the German Social Code, Book XII (SGB XII).
Source: www.socialgerichtsabilities.de
Note from the editor of Tacheles e. V.:
LSG BaWü press release: Nursing home residents may also be entitled to a one-off Corona payment – December 5, 2022: landessozialgericht-baden-wuerttemberg.justiz-bw.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Hildesheim Social Court – Judgment of 23 November 2022 – Case No.: S 27 AY 102/21
Legal norms: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: non-abusive extension of stay, Hildesheim Social Court
Continued with attorney Sven Adam
5.2 – BVerwG, October 11, 2022 – 1 C 9.21
Unreasonableness of obtaining a passport when a "declaration of regret" is required
A foreign national entitled to subsidiary protection may not be refused the issuance of a travel document for foreign nationals on the grounds that he or she could obtain a passport from his or her country of origin in a reasonable manner, if the country of origin makes the issuance of a passport conditional upon the signing of a “declaration of remorse” which is linked to the self-incrimination of a crime, and the foreign national plausibly explains that he or she does not wish to make the declaration.
Source: www.bverwg.de
We wish all our readers a wonderful, reflective and peaceful Christmas season!
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
