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 employment promotion law (SGB III)
1.1 – BSG, judgment of 02/15/2023 – B 4 AS 2/22 R
Basic income support for job seekers – standard allowance – mixed household – receipt of benefits under the Asylum Seekers' Benefits Act
Does an adult person entitled to benefits, who lives in a household with their children and an adult partner who receives basic benefits according to § 3 AsylbLG, have a right to benefits taking into account the standard benefit level 1 and the additional needs allowance for single parents?
Ruling: Limited benefits for couples receiving asylum seeker benefits.
A wife must accept the lower social benefit rate for married couples even if her husband already receives the lower benefits for asylum seekers.
Continue reading at: www.evangelisch.de
Editor's note:
German wife has to accept 50 EUR less in monthly benefits because her husband, who receives benefits under the Asylum Seekers' Benefits Act (AsylbLG), moved into her household – the Federal Social Court (BSG) now unfortunately says: this has to be accepted.
More information here: www.ra-gerloff.de
1.2 – BSG, judgment of 02/15/2023 – B 11 AL 40/21 R
Unemployment insurance – Unemployment benefits – Registration as unemployed – On-call duty – Employment Agency
Guidance note by the editor of Tacheles e. V.:
By analogy to Section 141 Paragraph 3 of the German Social Code, Book III (SGB III), a registration as unemployed also has retroactive effect if – as in this case – the registration as unemployed follows a period of incapacity for work.
In enacting the new regulations, the legislator intended to simplify administration by no longer making the retroactive effect of unemployment registration solely dependent on the unemployed person's willingness to register on a day when the Federal Employment Agency is not operating. However, this consideration is irrelevant, and the case group is inadvertently excluded from the scope of Section 141 Paragraph 3 of the German Social Code, Book III (SGB III), if – as in the present case – the discrepancy between the first day of unemployment and the first day of being unable to work is not due to the plaintiff's free choice, but rather to her incapacity for work due to illness.
To the extent that the Senate held the opposite view in its judgment of March 17, 2015 (B 11 AL 12/14 R), it no longer adheres to that view.
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 Saxony-Anhalt, Judgment of 11.08.2022 – L 5 AS 5/19
Guiding principles
1. When determining the profit of a self-employed person, only the necessary operating expenses that have been proven can be taken into account.
2. Loan repayments can only be recognized as necessary business expenses if they can be attributed to a specific loan agreement from which the payment obligation arises. If different versions of a loan agreement exist and the self-employed individual provides contradictory information regarding the circumstances of the repayments and the contractual obligations, this will be to their detriment.
Source: www.socialgerichtsabilities.de
2.2 – LSG Hamburg, judgment of November 3rd, 2022 – L 4 AS 190/21
A person entitled to basic income support has the right to have their accommodation costs covered by the benefit provider upon proof of a serious rent demand from the landlord
Guiding principle:
A person receiving basic income support is entitled to housing benefits from the basic income support provider under Section 22 of the German Social Code, Book II (SGB II), if they can prove that they are facing a serious rent claim from their landlord. This also applies if a co-tenant living with them contributes to the rent payment to maintain their own apartment. If there is no indication that the co-tenant is waiving their share of the rent, the basic income support provider is obligated to pay the housing costs. (Paragraph 33)
Source: www.landesrecht-hamburg.de
2.3 – LSG NSB, judgment of December 14, 2022 – L 9 AS 272/19
Guiding principles
1. A valid tenancy agreement between relatives does not exist if there is no serious claim for rent and no payments have been made on the basis of a presented contract.
2. The burden of proof may be reversed for the existence of the prerequisites of Section 45 of the German Social Code, Book X (SGB X), if events rooted in the personal sphere or sphere of responsibility of the benefit recipient cannot be clarified and the timely clarification of the facts has been hindered or prevented by omitted information or insufficient cooperation in clarifying the facts. A reversal of the burden of proof is possible with regard to the question of whether and to what extent rent payments have been made.
3. When a lawsuit is filed by a lawyer, it is assumed that they designate the plaintiffs consciously and deliberately. Only the plaintiffs named by them within the time limit for filing a lawsuit become parties to the social court proceedings. After the time limit for filing a lawsuit has expired, no further parties can generally be added to the proceedings; in particular, the principle of most-favored-nation treatment does not apply in such cases.
Source: www.socialgerichtsabilities.de
2.4 – LSG Saxony-Anhalt, Judgment of 13 July 2022 – L 4 AS 86/16
Guiding Principles
1. In principle, sewer connection costs for owner-occupied residential properties are eligible expenses that are actually and inextricably linked to the use of the accommodation. Therefore, a sewer connection fee must be taken into account when calculating housing and heating costs if it was incurred during the period of benefit receipt, i.e., if it became due for the first time.
2. Existing (due) liabilities that originate from earlier times and were due for the first time before receiving benefits under SGB II are debts and not expenses within the meaning of Section 22 Paragraph 1 of SGB II.
Source: www.socialgerichtsabilities.de
2.5 – LSG Berlin-Brandenburg, decision of – L 19 AS 929/22 B ER
Guiding principles
1. Uninterrupted registration in the federal territory for five years in accordance with the Federal Registration Act (BMG) is not a legal requirement for entitlement to benefits under Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II).
2. After initial registration, only proof of five years of habitual residence is required.
Source: www.socialgerichtsabilities.de
Editor's Note:
It is only required that, following an initial registration more than five years prior, a five-year period of residence be proven, possibly including periods not recorded by registration (see, in this regard, the Senate's decision of October 21, 2021 – L 19 AS 929/21 B ER; Berlin-Brandenburg Higher Social Court, judgment of May 11, 2020 – L 18 AS 1812/19; Schleswig-Holstein Higher Social Court, decision of December 9, 2019 – L 6 AS 152/19 B ER; Hamburg Higher Social Court, decision of June 20, 2019 – L 4 AS 34/19 B ER; Leopold, in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., as of November 29, 2021; contra: Berlin-Brandenburg Higher Social Court, decisions of May 31, 2021 – L 5 AS 457/21 B ER –, and of 4 May 2020 – L 31 AS 602/20 B ER ; Hessian State Social Court, decision of 16 October 2019 – L 7 AS 343/19 B ER).
2.6 – LSG NRW, judgment of September 16, 2022 – L 21 AS 1977/19
Guiding principle of the editor of Tacheles e. V.:
The employer's reimbursement of travel expenses is income from employment within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II (cf. Federal Social Court on 11.11.2021 – B 14 AS 41/12 R).
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 of Hanover, Judgment of January 17, 2023 – S 39 AS 2739/20 – Author: Silke Clasvorbeck, Legal Protection Secretary and Online Editor, Bielefeld
When was the repayment notice served?
In April 2020, the plaintiff received a reminder from the Federal Employment Agency's collection agency. Since she could not understand the demand, she contacted the employment agency. She was informed that it concerned an overpayment of benefits under the German Social Code, Book II (SGB II) from 2012. She should have received a cancellation and repayment notice for this in September 2012. However, she did not. Can the employment agency still demand the money back?
Further information: www.dgbrechtsschutz.de
Editor's note:
No repayment of ALG II (unemployment benefit II) is required if the Job Center cannot prove that the repayment notice was sent by mail, provided the recipient credibly asserts that they never received it (guideline editor of Tacheles e. V.).
Editor's Note:
According to Section 37 Paragraph 2 Sentence 3 Clause 2 of the German Social Code, Book X (SGB X), the authority must prove receipt and the date of receipt in case of doubt. The three-day fiction of Section 37 Paragraph 2 Sentence 1 of the SGB X requires that the social security agency has recorded the date the document was mailed in the file (Federal Social Court [BSG] judgment of March 3, 2009 – B 4 AS 37/08 R).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, judgment of 09/08/2022 – L 9 SO 160/19
No approval of pension contributions (voluntary contributions to the statutory pension insurance)
Guiding principle of the editor of Tacheles e. V.:
The assumption of the maximum contributions to the statutory pension insurance is inappropriate within the meaning of Section 33 Paragraph 1 of the German Social Code, Book XII (SGB XII), and was not possible for the social welfare provider as a discretionary benefit.
Source: www.socialgerichtsabilities.de
Editor's Note:
The following legal question is pending before the Federal Social Court (BSG): – B 8 SO 13/22 R – On the prerequisites for the assumption of necessary expenses for adequate old-age security pursuant to Section 33 Paragraph 1 of the German Social Code, Book XII (SGB XII).
4.2 – LSG Bayern, decision of 25.01.2023 – L 8 SO 343/22 B ER
Guidelines:
Costs for a disability-related examination to determine fitness to drive may be covered as part of benefits for participation in working life or social participation. A prior application is a prerequisite.
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 3898/22 ER
Legal provisions: Section 3 AsylbLG, Section 3a AsylbLG, Section 86b Paragraph 2 Sentence 2 SGG – Keywords: Standard benefit level 1, benefits according to Sections 3, 3a AsylbLG
Continued with attorney Sven Adam
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Important case law on the German Social Code, Book II (SGB II) – Entitlement of EU citizens: Extension of the continued effect of employee status during maternity leave, further establishment of entitlement through fictitious right of residence under the German Residence Act (AufenthG) – Commentary by the Paritätische Gesamtverband (Parity Welfare Association) on – Saxony Higher Social Court, judgment of December 6, 2022 – L 4 AS 939/20
The Saxony State Social Court (judgment of 6 December 2022; L 4 AS 939/20) has made an important decision regarding the entitlement to SGB II benefits for EU citizens in family situations:
An EU citizen has a child with a tolerated Tunisian citizen; the parents are not married to each other, and the mother was dismissed from her job for operational reasons during her pregnancy.
The Saxony State Social Court (LSG Sachsen) determined, firstly, that in this case the continuing employee status does not end after six months, but is extended by the period of maternity leave.
On the other hand, the protection of the family means that there is also an entitlement to SGB II benefits afterwards, because the EU citizen has a fictitious entitlement to a humanitarian or family right of residence under the Residence Act.
Source: www.der-paritaetische.de
Editor's note:
Full text including key principles published in the Tacheles case law ticker, week 4/2023
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
