1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Bayern, judgment of December 23, 2022 – L 16 AS 339/22
Guiding principles
1. A housing benefit arrears payment must be taken into account as income when granting benefits to secure subsistence under the German Social Code, Book II (SGB II), since it does not originate from a legal basis comparable to the three subsistence security systems SGB II, SGB XII and AsylbLG.
2. Even after a final determination of entitlement to benefits under Section 11 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), the one-off income from the housing benefit back payment is only to be included in the calculation of total income under Section 41a Paragraph 4 Sentence 3 of the SGB II (old version) from the month following the receipt of the payment and is to be taken into account in the calculation of average income under Section 41a Paragraph 4 Sentence 1 of the SGB II (old version) (see also Federal Social Court (BSG), judgment of 18 May 2022 – B 7/14 AS 9/21 R).
4. The costs that are the subject of the cost decision pursuant to Section 193 of the Social Court Act (SGG) include the costs of the preliminary proceedings only insofar as the subject matter of the court proceedings and the subject matter of the preliminary proceedings are identical. Otherwise, the cost allocation decision of the objection decision pursuant to Section 63 of the German Social Code, Book X (SGB X) remains unaffected.
Source: www.socialgerichtsabilities.de
1.2 – LSG Schleswig-Holstein, decision of 19.12.2022 – L 3 AS 70/22
Guiding principles:
Whether the appeal is unanimously deemed unfounded within the meaning of Section 153 Paragraph 4 of the Social Court Act (SGG) depends solely on the anticipated decision in the main proceedings.
The modification of a first-instance cost decision, here the imposition of costs due to fault pursuant to Section 192 Paragraph 1 of the Social Court Act (SGG), does not preclude the dismissal of the appeal by decision.
Note on
costs of fault, rejection of the appeal by decision
Source: www.socialgerichtsabilities.de
1.3 – Saxon State Social Court, Judgment of 06.12.2022 – L 4 AS 939/20 – The appeal is granted
Guiding Principles
1. If child benefit is paid retroactively for several months, this does not change the classification as current income within the meaning of Section 11 Paragraph 2 of the German Social Code, Book II (SGB II), at least according to the legal situation applicable until July 31, 2016. The retroactive child benefit payment must be taken into account as income in the month it is received.
2. The insurance allowance of 30.00 euros is not to be deducted multiple times in the case of a back payment of child benefit for several months (following the ruling of the Lower Saxony-Bremen State Social Court of September 8, 2020 – L 7 AS 354/19).
3. The expiry of the six-month period pursuant to Section 2 Paragraph 3 Sentence 2 of the Freedom of Movement Act/EU is suspended, in accordance with EU directives and the constitution, for the duration of the maternity leave stipulated under EU law pursuant to Article 8 Paragraph 1 of Directive 92/85/EEC, i.e., during the protection periods or employment prohibitions both before and after childbirth. Thus, the employee status continues during the maternity leave period, and the EU citizen is not excluded from benefits to secure her livelihood under Book II of the German Social Code (SGB II) pursuant to Section 7 Paragraph 1 Sentence 2 of Book II of the German Social Code (SGB II).
4. An unmarried EU citizen and her child have a right of residence in the Federal Republic of Germany for family reasons under the Residence Act, at least during the child's first year of life, if the child's third-country national father is an asylum seeker or a foreigner tolerated under Section 60a of the Residence Act and lives in asylum seeker accommodation in Germany, has custody of the child, actually exercises this custody, and there are special circumstances that make it unreasonable for the family to leave Germany, so that the family can only live together in Germany. In such a case, the EU citizen and her child are not excluded from benefits under the German Social Code, Book II (SGB II).
5. The exclusion of benefits for the child does not follow from Section 7 Paragraph 1 Sentence 2 Number 3 of the German Social Code, Book II (SGB II), even if the child also holds the nationality of a member state of the European Union. This is because the Asylum Seekers' Benefits Act does not apply to EU citizens. In any case, Section 1 Paragraph 1 Number 6 of the Asylum Seekers' Benefits Act must be interpreted teleologically to mean that the provision only applies to minor children of the persons named in Section 1 Paragraph 1 Numbers 1 to 5 of the Asylum Seekers' Benefits Act who live in the same household.
Source: www.socialgerichtsabilities.de
Note from the editor of Tacheles e. V.:
a. Opinion on the deduction of the 30 Euro insurance allowance in the case of retroactive child benefit payments:
1. LSG Berlin Brandenburg, Judgment of September 17, 2015 – L 31 AS 1571/15 – Even if child benefit is paid in one month as a back payment for several months, the insurance allowance of €30 must be deducted for each monthly amount.
2. Social Court Hildesheim, Judgment of 30 September 2021 – S 26 AS 1381/20 – In the case of a retroactive child benefit payment, the insurance allowance must be taken into account for each month (Editor of Tacheles e. V.), see also the article by attorney Dr. Robin von Eltz on www.anwalt.de
1.4 – LSG Hamburg, judgment of November 3rd, 2022 – L 4 AS 305/21
Constitutionality of the offsetting of basic income support benefits against the repayment of a rent deposit loan by the basic income support provider (here 30 months)
Guiding principle:
The permissible offsetting of basic income support benefits to repay a rental deposit loan pursuant to Sections 22 Paragraph 6 Sentence 3, 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) authorizes the basic income support provider to issue a permanent administrative act. There are no constitutional concerns regarding the fundamental right to a guaranteed minimum standard of living that ensures human dignity that preclude this offsetting. (Paragraph 3)
Source: www.landesrecht-hamburg.de
1.5 – LSG Schleswig-Holstein, judgment of September 23, 2022 – L 3 AS 163/19
The district of North Frisia does not have a coherent concept for determining the costs of accommodation (orientation statement by the editor of Tacheles e. V.)
Attorney Dirk Audörsch comments:
Costs of accommodation in North Frisia (SGB II – Hartz IV)
In judgments dated September 23, 2022, the Schleswig-Holstein State Social Court (case number L 3 AS 163/19, among others), which were only served with the full grounds for the judgment on January 4, 2023, ruled that the district of North Friesland lacks a coherent concept for determining housing costs, and therefore the value in the housing benefit table, increased by a 10% safety margin, must be used. Thus, all six appeals handled by the law firm Audötsch were essentially successful. However, the judgments are not yet legally binding.
Continue reading: westkuestenanwalt.com
2. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – SG Nordhausen, Partial Judgment of 15.11.2022 – S 12 AS 1439/20
Guiding principles:
If the appellant only challenges an amendment notice regarding the provisional grant of SGB II benefits, which does not affect the entire grant period, the decision on the final determination will only be the subject of the preliminary proceedings insofar as the challenged period is affected.
Even in the case of decentralized domestic hot water heating by a combination boiler, a claim under Section 21 Paragraph 7 Sentence 1 of the German Social Code, Book II (SGB II) requires the existence of an additional need. This is lacking if the job center – even if only based on an estimate of total fuel consumption – has already taken the full electricity costs of the appliance into account as housing and heating costs under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if it does not specify whether or not a portion of these costs was attributable to water heating (distinguishing this case from the Federal Social Court's judgment of May 18, 2022, B 7/14 AS 1/21 R, juris).
If, during a judicial review of a final benefit determination pursuant to Section 41a Paragraph 3 of the German Social Code, Book II (SGB II), with balancing pursuant to Section 41a Paragraph 6 of the SGB II, a higher benefit entitlement arises in (at least) one month, while an overpayment is found in other months, the prohibition against increasing the appellant's position precludes a further balancing by the court due to the monthly principle (distinction from the Higher Social Court of Saxony-Anhalt, judgment of September 21, 2021, L 2 AS 692/20, juris; further development of the Federal Social Court, judgment of May 18, 2022, B 7/14 AS 1/21 R, juris).
If the proceedings are concluded for one party by a partial judgment, the decision on costs is not to be reserved for the final judgment.
Source: www.socialgerichtsabilities.de
2.2 – SG Detmold, Judgment of 15.06.2022 – S 35 AS 520/21
Guiding Principles:
The assertion of a claim for repayment of a loan is precluded by the objection of impermissible exercise of rights in accordance with § 242 of the German Civil Code (BGB) if the beneficiary has irrevocably transferred his claim for repayment of the security deposit from the tenancy to the job center and the job center has not asserted the claim against the landlord within the relevant civil law limitation period after termination of the tenancy.
Heading:
Court Order | Basic income support for job seekers, repayment of a rental deposit, declaratory action pursuant to Section 55 Paragraph 1 No. 1 of the Social Court Act (SGG), irrevocable assignment, civil law limitation period for the claim, objection of abuse of rights pursuant to Section 242 of the German Civil Code (BGB) by analogy
Source: www.socialgerichtsabilities.de
2.3 – SG Hamburg, judgment of December 2nd, 2022 – S 39 AS 11/20
Violation of the fundamental right to a dignified minimum standard of living when offsetting the loan for the payment of cooperative shares with a duration of 6.33 years.
The offsetting of cooperative shares was to be limited to 3 years.
Guiding principle of the editor of Tacheles e. V.:
Offsetting the loan for the payment of cooperative shares with a duration of 6.33 years leads to a violation of the fundamental rights of the benefit recipient and should therefore be limited to 3 years.
2. The court is not bound by the regulations of the Hamburg Free and Hanseatic City's directive, particularly where it provides for the offsetting of loans for cooperative shares of up to five or ten years. The administration is obligated to adjust the directives—insofar as they are applied to benefit recipients based on the administration's self-imposed obligation in conjunction with Article 3 Paragraph 1 of the Basic Law—due to the resulting violation of the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 Paragraph 1 of the Basic Law).
Note from the editor of Tacheles e. V.:
See also: Cologne Social Court, judgment of 07.02.2023 – S 45 AS 3461/20 WA (published in the Tacheles case law ticker, week 3/2023)
Unemployment benefit II – Accommodation and heating – Rent deposit loan – approximately 4-year repayment through monthly deductions of 10% of the standard benefit rate – deductions are limited to a maximum of 3 years – the remaining deposit amount must be assigned to the Job Center
The offsetting of a loan is constitutionally objectionable if very high repayment obligations from loans and/or offsetting that occurs in immediate succession for more than three consecutive years is offset against the standard benefit at a rate of 10 percent per month.
2.4 – SG Nordhausen, decision of 12.01.2023 – S 13 AS 1227/22
Guiding Principles
1. A referral by a locally incompetent social court to another locally incompetent social court is binding on the court named in the referral order at least if there was a simple error on the part of the referring court regarding local jurisdiction, which was not obvious to the parties involved.
2. The Federal Social Court shall also be called upon as the next higher common court within the meaning of Section 58 Paragraph 1 of the Social Courts Act (SGG) if two social courts belonging to the jurisdiction of a state social court, one of which is competent, have declared themselves incompetent and a third social court belonging to the jurisdiction of another state social court is not a competent court.
Source: www.socialgerichtsabilities.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Baden-Württemberg, judgment of December 14, 2022 – L 3 AL 4290/19
Guiding Principles
1. In favor of an operator of a workshop for disabled people, there is no legal basis that would oblige the Federal Employment Agency as a benefit provider to conclude a specific contractual agreement with the operator as a service provider regarding the level of remuneration demanded by the operator for the areas of initial assessment and vocational training.
2. He also has neither a right to replacement of the previously agreed remuneration at the court's equitable discretion nor a right to a judgment ordering the authority to re-exercise its discretion regarding new cost rate agreements in accordance with the court's legal opinion.
3. In particular, it is not necessary to transfer the case law developed by the Federal Social Court on determining the remuneration of inpatient or outpatient care services, home nursing care services and outpatient hospital services by means of a two-stage procedure (comprehensible cost calculation and external comparison) to the conclusion of remuneration agreements in the areas of initial procedures and vocational training.
4. Rather, the review is limited to determining whether the benefit provider has abused the limits of the negotiating leeway granted to it by the legislator and imposed conditions on the service provider that are incompatible with its position as a public-law entity (following BSG, judgment of 20 November 2008 – B 3 KR 25/07 R, juris para. 34; BSG, judgment of 17 February 2022 – B 3 KR 13/20 R, juris para. 19).
5. The remuneration offered by the service provider must be reviewed both against the standard of Article 12 Paragraph 1 and Article 3 Paragraph 1 of the Basic Law and to determine whether there has been a violation of Section 21 Paragraph 1 No. 2 of the German Social Code, Book IX (SGB IX) as amended or Section 38 Paragraph 1 No. 2, Paragraph 2 of the German Social Code, Book IX (SGB IX) as amended.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg, judgment of March 17, 2022 – L 7 SO 1635/19
Guiding principle of the editor of Tacheles e. V.
Regarding the acceptance of a rare exceptional case of the unreasonableness of a move, particularly for health reasons, here affirmed.
Source: www.socialgerichtsabilities.de
4.2 – LSG Mecklenburg-Western Pomerania, judgment of 11/17/2022 – L 9 SUN 40/15
Guiding principle:
In an establishment whose purpose is only temporary, pending a decision on further residence, no habitual residence is established.
Source: www.landesrecht-mv.de
4.3 – Saxon State Social Court, Judgment of 30 November 2022 – L 8 SO 107/19
Guiding Principles
1. According to Section 74 of the German Social Code, Book XII (SGB XII), the necessary costs of a funeral are covered insofar as those legally obligated to pay for it cannot reasonably be expected to do so. The provision is intended only to guarantee a dignified funeral, and taxpayers should only be required to pay for a dignified funeral under social welfare law. The standard of living cannot be the deceased's former standard of living, but rather what is customary in the locality (Section 9, Paragraph 1, SGB XII) as funeral expenses in the aforementioned sense.
2. Costs of transporting a body abroad to the intended burial site are only necessary within the meaning of Section 74 of the German Social Code, Book XII (SGB XII), if such transport is also necessary under the circumstances of the individual case. This is the case, for example, if the circumstances do not allow for a burial in Germany according to the deceased's religious beliefs.
3. The wishes of the person responsible for arranging the funeral (§ 9 para. 2 SGB XII) and, where applicable, of the deceased (§ 9 para. 1 SGB XII) must be respected within reasonable limits. Respect must be given to the religious beliefs practiced and to the human dignity that must be upheld even after death (Art. 4 GG).
Note
on the assumption of the necessary costs of a funeral within the meaning of Section 74 of the German Social Code, Book XII (SGB XII), in the case of a burial abroad
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Federal Court of Justice: Care allowance may not be seized
Care allowances paid to indebted family caregivers cannot be seized. Otherwise, the legal objective of the care allowance – to increase the willingness of relatives, friends, or neighbors to provide care – would not be achieved, the Federal Court of Justice in Karlsruhe ruled in a published decision (Case No.: IX ZB 12/22).
More information: www.evangelisch.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Hessian State Social Court – Decision of 20 December 2022 – Case Nos.: L 4 AY 28/22 B ER and L 4 AY 29/22 B
Legal norms: Section 1a Paragraph 3 Asylum Seekers' Benefits Act (AsylbLG), Section 3 AsylbLG, Section 2 AsylbLG – Keywords: Hearing regarding violation of obligations to cooperate under immigration law, standard benefit level 1, Hessian State Social Court
Even with basic benefits (§ 3a AsylbLG), single persons are entitled to the minimum benefit rate of 1! (Attorney Volker Gerloff)
Guiding principle of the editor of Tacheles e. V.:
The applicant's entitlement to standard benefit level 1, taking into account the decision of the Federal Constitutional Court of 19 October 2022 – 1 BvL 3/21.
Continued with attorney Sven Adam
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
