1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Hamburg, judgment of September 29, 2022 – L 4 AS 342/20
Personal accessibility of the applicant to the Jobcenter for benefits under Book II of the German Social Code (SGB II) is a prerequisite for their entitlement to basic income support benefits
Guiding principle:
According to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), the granting of benefits under SGB II requires that the applicant be reachable. The beneficiary must reside in the vicinity of the social security provider and be able to reach them without undue effort. The job center must be able to reach them personally by mail at their residence or usual place of abode on every working day at the address they have provided. (Paragraph 29)
Source: www.landesrecht-hamburg.de
1.2 – LSG NRW, Judgment of 08.11.2022 – L 2 AS 804/21 – Appeal allowed
Basic income support for job seekers – consideration of income – deductions – necessary expenses associated with earning income – training costs
The question of whether and under what conditions training costs for further training undertaken in connection with practical employment subject to social security contributions can be deducted from income pursuant to Section 11b Paragraph 1 No. 5 of the German Social Code, Book II (SGB II), is answered in the affirmative
Training costs must be considered as necessary expenses related to generating income.
Guiding principle (Editor of Tacheles e. V.):
1. Training costs are deductible from income.
2. The fees payable for the training to become a psychological psychotherapist, amounting to €450.00 per month, are deductible from income as necessary expenses related to earning that income, pursuant to Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II). These training costs also constitute necessary expenses within the meaning of the provision (see also the judgment of the Higher Social Court of Baden-Württemberg of February 27, 2014 – L 12 AS 4836/12).
Guidance (Editor)
1. Necessary expenses within the meaning of Section 11b Paragraph 1 Sentence 1 No. 5 SGB II are only those that are directly caused by the generation of the respective income (cf. BSG, Judgment of 19.03.2020 – B 4 AS 1/20 R). Further education and training costs can also be considered necessary expenses if, from an economic perspective, they are linked to the generation of income in such a way that there is an objective connection between the training measure and the gainful employment, and the costs of the training measure prove to be necessary in principle and in amount under reasonable economic management (cf. Meißner, jurisPR-SozR 15/2020 Note 1 to BSG, Judgment of 19.03.2020 – B 4 AS 1/20 R with further references and reference to the BA's technical instructions on §§ 11-11b Rn. 11.139).
2. The decisive factor in determining the necessity of training costs is their connection to the activity undertaken during and within the framework of the training and the income derived therefrom (Hamburg Higher Social Court, judgment of February 4, 2015 – L 4 AS 394/13). In particular, if the income from the activity actually performed would otherwise be jeopardized, the costs of training may be taken into account (cf. Berlin-Brandenburg Higher Social Court, judgment of June 27, 2019 – L 29 AS 625/18).
3. This applies to the training costs of €450.00 per month payable by the plaintiff. The payment of these training costs is causally linked to the generation of income from practical work amounting to €1,000.00 gross, because the plaintiff cannot perform this practical work, which, according to the training contract with the LVR Clinic, comprises an average of 26 hours per week in the first year of training, independently of the training.
Source: www.socialgerichtsabilities.de
1.3 – LSG Lower Saxony-Bremen, Judgment of 30.08.2022 – L 15 AS 106/20
Bremen's accommodation costs for Hartz IV recipients are sometimes too high
The Lower Saxony-Bremen State Social Court has ruled that the approval of housing costs in Bremen for the period from October 2017 to September 2018 was not based on a method that meets the highest court's requirements for a so-called conclusive concept for assessing the rental housing market. This has led, in some cases in Bremen, to the reimbursement of costs that were, in some instances, excessively high. "Housing costs" refers to the amounts that recipients of Hartz IV benefits receive to cover their housing needs (in addition to heating costs).
The decision was based on the following facts:
Source: Press release LSG NSB dated 23.01.2023 (with full text of the judgment)
1.4 – LSG Thuringia, judgment of September 8, 2022 – L 9 AS 812/21
Guiding principles
1. The mere designation as a “provisional decision” without further explanation, in particular regarding the possible consequences of reimbursement, is generally not sufficient to remove the character of a grant notice as a final ruling.
2. If the authority mistakenly assumes that it has issued a provisional administrative act pursuant to Section 41a of the German Social Code, Book II (SGB II), while in fact it was a final administrative act, a subsequent decision issued as a final decision pursuant to Section 41a Paragraph 3 of the SGB II with a demand for reimbursement may not be reinterpreted as a revocation and reimbursement decision pursuant to Sections 45 et seq. of the German Social Code, Book X (SGB X), because the authority lacks the intent to eliminate the binding effect that has occurred.
Source: www.socialgerichtsabilities.de
1.5 – LSG Thüringen, decision of 24.11.2022 – L 1 SF 342/21 B DS
Guiding principles
§ 67d SGB X, § 78 SGB X, § 35 para. 2 SGB I
Social data protection, priority of standards regulating social data protection, original power of transmission
1. The regulations governing social data protection take precedence over other federal data protection regulations, including the provisions of the Federal Data Protection Act (BDSG) (§ 1 para. 2 sentence 1 BDSG) and state data protection regulations (§ 35 para. 2 SGB I).
2. The provision of Section 78 Paragraph 1 Sentence 6 of the German Social Code, Book X (SGB X) grants the courts an original power of transmission.
Source: www.socialgerichtsabilities.de
2. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – SG Nordhausen, Judgment of 13.10.2020 – S 13 AS 388/20
Guiding principles
1. An obligation of the job center to directly pay costs of accommodation and heating pursuant to Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) can be established by way of an action pursuant to Section 55 Paragraph 1 No. 1 of the German Social Courts Act (SGG).
2. Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) also applies to payments that property owners have to make to third parties and is therefore not limited to tenants.
Source: www.socialgerichtsabilities.de
2.2 – SG Bremen, judgment of December 13, 2022 – S 26 AS 1279/18
Prognosis decision according to § 22 para. 2 SGB II for owner-occupied home
Reasonable housing costs – Forecast – Maintenance and repairs – Owner-occupied home – Need for assistance – Rental income – Subletting – Month of payment
Principle
1. A prognosis decision pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) is no longer required if the relevant prognosis period has already expired at the time of the last administrative decision (following the ruling of the Higher Social Court of Saxony-Anhalt, judgment of October 8, 2020 – L 5 AS 742/16). In such cases, the actual housing costs must be taken into account.
2. Expenses pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) shall also be recognized if it is not expected that subsistence-securing benefits under the SGB II will be received over the entire period (month of application and the following eleven calendar months).
Source: www.socialcourt-bremen.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Baden-Württemberg, judgment of November 25, 2022 – L 8 AL 664/22
Guidelines
for the Termination of Short-Time Work Compensation (Kurzarbeitergeld, Kug) During the Coronavirus Pandemic. Even and especially in cases of prolonged Kug receipt (here: 1 year), monthly updates from the employer regarding the continued fulfillment of (among other things) the personal eligibility requirements for Kug are essential. An employer's erroneous assumption that the monthly renewal applications only consider the circumstances at the beginning of the Kug receipt is grossly negligent and does not excuse incomplete or inaccurate information provided during the period (here concerning the termination status of an employee).
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Saxon State Social Court, decision of 16 January 2023 – L 8 SO 46/22 B ER
Guiding principles
1. An intensive care shared living arrangement is also a form of outpatient-assisted living within the meaning of Section 98 Paragraph 5 of the German Social Code, Book XII.
2. The person being cared for should be enabled, as far as possible, to independently perform all important everyday tasks in their living area, to orient themselves in their living area, or at least to achieve this with sporadic support from third parties.
3. In addition to services for participation, the provision of outpatient care services can, according to the express will of the legislator, also constitute a case of "assisted living" within the meaning of Section 98 Paragraph 5 of the German Social Code, Book XII (SGB XII), because it ensures self-determination in one's own living and residential environment.
4. Outpatient intensive care is to be considered a form of outpatient care under the norm
Note:
Intensive care shared living arrangement as an outpatient-assisted living arrangement within the meaning of Section 98 Paragraph 5 SGB XII
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Child Benefit
5.1 – LSG Berlin-Brandenburg, Judgment of 22.09.2022 – L 4 KG 2/20 – Appeal allowed
Guiding principles
1. A child does not have knowledge of the whereabouts of its parents within the meaning of Section 1 Paragraph 2 Sentence 1 No. 2 BKGG simply because it knows that at least one parent is "somewhere in the world" with whom it has sporadic contact.
2. Regarding the entitlement of a German half-orphan to child benefit for herself, whose father, living in Asia, has eluded her for many years.
Source: www.socialgerichtsabilities.de
5.2 – LSG Berlin-Brandenburg, Judgment of 22.09.2022 – L 4 KG 1/20 – Appeal allowed
Guiding principles
1. A child does not have knowledge of the whereabouts of its parents within the meaning of Section 1 Paragraph 2 Sentence 1 No. 2 BKGG simply because it knows that at least one parent is "somewhere in the world" with whom it has sporadic contact.
2. In social terms, a child is considered equivalent to a full orphan if it does not know where at least one parent regularly resides, for example, because the parent's stay – e.g., during a flight or in the case of frequent changes of location due to civil war – is foreseeably only temporary.
Source: www.socialgerichtsabilities.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
If the authorities intend to reduce benefits to basic necessities (bread and soap) pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), they must be heard regarding a specific breach of cooperation
LSG Hessen, from December 20th, 2022, L 4 AY 28/22 B ER and L 4 AY 29/22 B
Important, because many social courts view hearings as a dispensable, bothersome thing (Attorney Volker Gerloff)
Source: Attorney Sven Adam
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – LSG NRW: Pandemic consequences must be taken into account when considering curfews
If a dependent employment relationship is terminated in order to resume self-employment that was abandoned due to the pandemic, this constitutes a hardship case.
Source: www.haufe.de
Editor's note:
LSG NRW, decision of 01.09.2022 – L 9 AL 106/22 B ER
Self-employment – pandemic – determination of a 12-week suspension period – special hardship within the meaning of Section 159 Paragraph 3 Sentence 2 No. 2 b) SGB III with the consequence of a reduction of the suspension period to six weeks
The question of whether a 12-week waiting period is unlawful if a successful and income-generating self-employment had to be temporarily abandoned due to the Corona pandemic and the associated contact restrictions, the person concerned sought interim employment, and now – after the restrictions have largely been lifted – wishes to resume the previously pursued self-employment, is answered in the affirmative here
Guidance note from the editor of Tacheles e. V.:
1. The Senate considers it at least disproportionately harsh to sanction the attempt of a self-employed person who was successfully operating their business before the corona-related closure of their business to resume this activity with the standard waiting period of twelve weeks, when – as in this case – there was a legitimate reason to assume that the self-employment could be resumed. A reduction of the waiting period to six weeks leads to an entitlement to unemployment benefits.
Source: Tacheles Legal Case Law Ticker Week 49/2022
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
