1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG NRW, judgment of April 19, 2022 – L 21 AS 1268/19
No assumption of rent arrears if the landlord is unwilling to continue the tenancy
Guidance note from the editor of Tacheles e. V.: Assuming
debt is no longer justified and necessary to prevent homelessness if the legal consequences of the extraordinary termination of the lease can no longer be averted and the apartment can no longer be retained. This was the case here.
Source: www.socialgerichtsabilities.de
1.2 – LSG Saxony-Anhalt, decision of 28.12.2022 – L 2 AS 594/22 B
Legal appeal – Reimbursement of SGB II benefits – Payment demand against heirs – Plea of indigence – Rejection by administrative act – Social court proceedings
Principle
1. An action by the basic income support provider that prepares for administrative enforcement is legally related to its administrative activity under the German Social Code, Book II (SGB II), which opens the social court route pursuant to Section 51 Paragraph 1 No. 4a of the German Social Court Act (SGG).
2. The admissibility of the social law remedy is not affected by the fact that the plaintiff is being sued as the heir of a benefit recipient; a transfer of the claim to the heir does not change the legal nature of the public law claim.
3. If the basic income support provider rejects the objection of the insufficiency of the estate within the meaning of § 1990 BGB by administrative act before the commencement of enforcement proceedings, the social legal process is open.
Source: www.landesrecht.sachsen-anhalt.de
1.3 – LSG Saxony-Anhalt, Judgment of 16.11.2022 – L 2 AS 649/18
Community of need – community of responsibility and support – care for a child of the partner
Guiding Principles
1. When interpreting the term "provide for" within the meaning of Section 7 Paragraph 3a No. 3 of the German Social Code, Book II (SGB II), the function of this element of the offense must be considered. The partner's behavior towards the child or relative must therefore be capable of providing evidence for the existence of a community of responsibility and mutual support. When two partners move in together, one of whom brings a minor child into the relationship and the shared household, the assumption of providing for requires substantial, child-specific assistance that goes beyond occasional babysitting or putting the child to bed and is characterized by a certain degree of assumption of responsibility. The mere preparation of meals together or helping with the child's laundry does not generally trigger the presumption of this provision.
2. The fact that SGB II benefits for several members of a potential household are transferred to the account of one beneficiary and that this beneficiary does not pass the money on proportionally to his partner does not necessarily prove his authority to dispose of the partner's income within the meaning of Section 7 Paragraph 3a No. 4 SGB II.
Source: www.socialgerichtsabilities.de
1.4 – LSG Saxony-Anhalt, Judgment of 09.11.2022 – L 5 AS 34/20
Guiding Principles
1. The granting of a subsidy for unavoidable expenses for maintenance and repairs is limited by the legislator pursuant to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II). For expenses exceeding this limit, the granting of a loan is provided for pursuant to Section 22 Paragraph 2 Sentence 2 of the SGB II.
2. If the total costs of a maintenance measure exceed the eligible need and financing for the remaining need is not secured (here: explicit rejection of a loan pursuant to Section 22 Paragraph 2 Sentence 2 of the German Social Code, Book II), a grant is not possible. This applies at least if the intended measure is indivisible (here: renewal of the heating system).
Source: www.socialgerichtsabilities.de
1.5 – LSG Saxony-Anhalt, Judgment of 09.11.2022 – L 5 AS 708/18
Guiding Principles
: In the Harz district, the values of the nationwide heating cost index must be used to determine the appropriateness of heating costs. The defendant's calculation of the heating costs to be considered does not comply with the requirements of the Federal Social Court (BSG). The calculated values constitute an inadmissible lump sum. In particular, they fail to take into account climatic conditions, energy price trends, the energy sources typical for simpler residential buildings, building standards, and the condition of the heating systems.
Source: www.socialgerichtsabilities.de
1.6 – LSG Berlin-Brandenburg, judgment of November 10, 2022 – L 27 AS 1192/21
Basic income support under the German Social Code, Book II (SGB II) – Tenancy agreement between relatives – Additional needs allowance for single parents in a weekly shared custody arrangement with equal cost sharing – Half of the personal school supplies in a half shared custody arrangement
Guiding principle of the editor of Tacheles e. V.:
1. There is no general rule of thumb that adults would live permanently rent-free in the properties of close relatives.
2. In the case of a weekly alternating custody arrangement with approximately equal cost sharing between both parents, the all-or-nothing principle is not applicable due to the lump-sum nature of Section 21 of the German Social Code, Book II (SGB II), regardless of any actual additional needs incurred. Instead, half of the additional needs allowance for single parents is to be applied to each parent, which is affirmed here, even though the parents live in adjacent apartments in the same house.
3. Benefits for education and participation in the form of personal school supplies are only to be granted in half due to the 50/50 alternating custody model, i.e., in accordance with Section 34 Paragraph 3 No. 1 SGB XII in conjunction with Section 28 Paragraph 3 SGB II, an amount of €50.00.
Source: www.socialgerichtsabilities.de
1.7 – LSG Berlin-Brandenburg, judgment of December 9, 2022 – L 29 AS 2166/17
Guiding principles:
A request for information pursuant to Section 60 Paragraph 4 Sentence 1 No. 1 SGB II becomes moot upon termination of the benefit relationship between the job center and the benefit recipient.
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 – Loan or Income? Commentary on the Bremen Social Court ruling of January 3, 2023 – S 18 AS 1650/18 – Author: Silke Clasvorbeck, Legal Protection Secretary and Online Editor, Bielefeld
A loan does not constitute income as defined by the German Social Code, Book II (SGB II). Anyone receiving social benefits who borrows money must prove that they will be able to repay it. Even loans between friends are subject to strict requirements regarding the conclusion and seriousness of a loan agreement.
Source: www.dgbrechtsschutz.de
2.2 – SG Detmold, judgment of January 17, 2023 – S 35 AS 1022/21
Guiding Principles:
Unrestricted COVID-19 emergency aid from state funds, which cannot be used exclusively to cover a company's operating expenses, constitutes assessable income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if proof of its use is not required. Unlike restricted economic aid, it is not simply to be deducted from the actual operating expenses incurred during the relevant period.
If the unrestricted COVID-19 emergency aid is paid as a "fictitious entrepreneurial wage," the provision of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II) regarding the consideration of one-off income does not apply. The fictitious entrepreneurial wage is to be considered as business income pursuant to Section 3 Paragraph 1 Sentences 1 and 2 of the German Unemployment Benefit II Ordinance (ALG II-VO) in the income calculation according to Section 3 Paragraph 4 of the ALG II-VO in the benefit period in which it was received. There is no legal basis for its additional consideration in a subsequent benefit period.
Section 1 paragraph 1 no. 14 of the ALG II-VO and Section 3 paragraph 1a of the ALG II-VO do not preclude the consideration of non-earmarked Corona emergency aid from state funds as business income.
Headline:
Judgment | Basic income support for job seekers – Consideration and calculation of income – Income from self-employment – Consideration of unrestricted COVID-19 emergency aid as business income when calculating income from self-employment according to Section 3 of the ALG II Ordinance – fictitious entrepreneurial wage – relevant period – distinction from one-off income according to Section 11 Paragraph 3 of the German Social Code, Book II
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – Augsburg Social Court, Judgment of November 30, 2022 – S 5 AL 84/22
Misleading advice from an employment advisor prevents the employment agency from claiming reimbursement
Trust that deserves protection counts!
Unemployment benefits are paid to those who are available for job placement. Inpatient hospital stays preclude this. Overpaid unemployment benefits may have to be repaid. Legitimate expectations can prevent the obligation to repay if proof of incorrect advice from the employment agency can be provided. The Augsburg Social Court overturned a repayment order based on such an error.
Source: www.dgbrechtsschutz.de
Editor's note:
Information provided by an employment agency must be correct and unambiguous.
4. Decisions of the State Social Courts on Child Benefit
4.1 – LSG Hessen, Judgment of 21.11.2022 – L 5 KG 2/20
Guiding principles
1. Subjective knowledge of the whereabouts of the parents or the still-living parent of the child claiming child benefit within the meaning of Section 1 Paragraph 2 Sentence 1 No. 2 BKGG can be assumed depending on the circumstances of the individual case if the whereabouts were positively known and there are no indications of a change thereto.
2. Residence within the meaning of Section 1 Paragraph 2 Sentence 1 No. 2 BKGG is to be understood in a purely physical sense and does not necessarily require a residence or habitual abode.
3. In individual cases, an abuse of knowledge regarding the whereabouts may exist if there is no possibility of inquiry.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Stuttgart Social Court – Decision of 27 January 2023 – Case No.: S 20 AY 4114/22 ER
Legal norms: Section 2 Asylum Seekers' Benefits Act (AsylbLG), Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Standard benefit level 1, benefits under Section 2 AsylbLG, collective accommodation, expedited proceedings, Stuttgart Social Court
Continued with attorney Sven Adam
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – The deductions under the German Social Code, Book II (SGB II) also apply to advance payments – Commentary on the Federal Social Court (BSG) judgment of March 29, 2022 – B 4 AS 24/21 R – by author: Birgit Hartmann, Legal Protection Secretary, Düren
Neumann was receiving unemployment benefits (ALG II) and finally found a new job. Since he isn't due to receive his full wages until the following month, the job center is initially paying him for the first month. However, the company is paying an advance, and the job center is demanding repayment. They are not taking any allowances into account.
Further information: www.dgbrechtsschutz.de
6.2 – Attorney Volker Gerloff: In special forms of housing for people with disabilities, those affected have been paying approximately €150-170 too much per month in "co-payments" for food/hygiene since January 1, 2020
Those affected should defend themselves.
Source: twitter.com
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
