1. Decisions of the Federal Social Court on social assistance (SGB XII) and employment promotion law (SGB III)
1.1 – BSG, judgment of November 29, 2022 – B 11 AL 33/21 R
Unemployment benefit entitlement – waiting period upon termination of a vocational integration measure – linkage to a waiting period in case of refusal – requirement for proper notification of legal consequences – warning function – invalidity if the start of the waiting period is not specified
Guiding principle of the editor of Tacheles e. V.:
A notification of legal consequences is incomplete and therefore invalid if it does not contain any reference to the commencement of an impending suspension period (similarly, Lower Saxony-Bremen Higher Social Court, judgment of May 8, 2018 – L 11 AL 67/16 – info also 2018, 209, and agreeing with this, Coseriu in Eicher/Schlegel, SGB III, § 159 marginal note 461, as of May 2019; Lüdtke/Schaumberg in Böttiger/Körtek/Schaumberg, SGB III, 3rd edition 2019, § 159 marginal note 25; Lower Saxony-Bremen Higher Social Court, judgment of June 23, 2021 – L 11 AL 95/19 – info also 2022, 28).
Source: www.rechtrecht-im-internet.de
1.2 – BSG, judgment of 02/23/2023 – B 8 SUN 9/21 R
Social assistance – Long-term care assistance – Recovery of gifts – House property – Right of residence – Cancellation – Discretion
Is the monthly quantification of social assistance a prerequisite for a notification of transfer pursuant to Section 93 of the German Social Code, Book XII (SGB XII)?
Regarding the conditions for the transfer of a claim for the return of a gift relating to a right of residence
Guidance note by the editor of Tacheles e. V.
1. The challenged transfer notices were overturned by the Federal Social Court (BSG) because the social welfare agency did not exercise its discretion properly when issuing them.
2. When transferring a claim for the return of a gift within a close family context, which reverses a gratuitous transfer often made for idealistic reasons and typically interferes with family relationships, it is essential, not least in view of the requirement of family-friendly benefits (§ 16 SGB XII), to hear the donors (here, the plaintiff's parents) as part of a comprehensive investigation of the facts. According to the binding findings of the State Social Court, this did not occur in the present case.
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 Berlin-Brandenburg, judgment of November 24, 2022 – L 34 AS 2245/18
Guiding Principles:
The implementing regulations for granting benefits pursuant to Section 22 of the German Social Code, Book II (AV-Wohnen 2015), applied by the job centers in Berlin from July 1, 2015, do not constitute a conclusive concept for determining reasonable accommodation expenses.
An increased need for living space due to exercising visitation rights with a separated child cannot (or can no longer) be recognized at the level of the specific appropriateness of accommodation costs if visitation objectively no longer takes place and it is also completely uncertain whether and, if so, to what extent, meetings between the parent and the child will occur again in the future.
Section 22 paragraph 1 sentence 3 of the German Social Code, Book II (SGB II) is also applicable in cases where an initially existing increased need for living space (here: due to exercising the right of access to the child) later ceases to exist (here: due to the termination of the right of access).
Source: www.socialgerichtsabilities.de
2.2 – LSG Berlin-Brandenburg, judgment of September 30, 2022 – L 5 AS 1449/19
Guiding principles:
Sickness benefit is not considered a subsequent payment within the meaning of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), simply because it is not paid per calendar day but "in installments in retrospect".
Source: www.socialgerichtsabilities.de
2.3 – LSG Hessen, decision of 09.03.2023 – L 7 AS 447/22 B ER
Guiding principles
1. The mere determination of the loss of the right of free movement pursuant to Section 2 Paragraph 1 of the Freedom of Movement Act/EU 2004 precludes the application of Section 7 Paragraph 1 Sentence 4 Half-Sentence 1 of the German Social Code, Book II. The decision does not need to have become legally binding.
Source: www.socialgerichtsabilities.de
Editor's note:
See also Lower Saxony-Bremen State Social Court, decision of May 26, 2017, L 15 AS 62/17 B ER; cf. also Hesse State Social Court, 4th Senate, L 4 SO 91/20 B ER; contra Saxony State Social Court, decision of March 20, 2018, L 3 AS 73/18 B ER and Lower Saxony-Bremen State Social Court, decision of May 28, 2019, L 8 SO 109/19 B ER
2.4 – LSG Baden-Württemberg, judgment from April 12, 2022 – L 9 AS 2370/20
Basic income support for job seekers – consideration and calculation of income in the case of self-employment – no deductibility of business expenses after taking out a loan
Loans are not to be considered as operating income
Guiding principle of the editor of Tacheles e. V.:
1. As a general rule, loans are not to be considered as business income.
2. Receipts that are subject to a repayment obligation are not considered income under the German Social Code, Book II (SGB II) (Federal Social Court, judgment of June 17, 2010 – B 14 AS 46/09 R). Thus, the receipt of the loan remains disregarded, while expenses for the repayment of business-related loans are deductible business expenses (see in detail Higher Social Court Berlin-Brandenburg, judgment of June 12, 2015 – L 25 AS 3370/13; Bavarian Higher Social Court, judgment of November 30, 2018 – L 16 AS 205/16).
3. Expenses covered by the intended purpose of a loan must be paid from that loan and cannot be deducted from income (LSG Baden-Württemberg, judgment of 09.12.2014 – L 12 AS 1858/13).
Source: www.socialgerichtsabilities.de
2.5 – LSG Bayern, judgment of September 22, 2022 – L 7 AS 98/22
Guiding principles:
An appeal filed with the assurance that legal aid will be granted and a lawyer appointed can be interpreted as an unconditional appeal.
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 – SG Magdeburg, Judgment of 01.02.2023 – S 36 AS 886/22
Principle by Attorney Michael Loewy:
A redistribution of files due to staff shortages does not justify exceeding the deadline stipulated in Section 88 Paragraph 22 of the Social Court Act (SGG).
Source: Attorney M. Loewy
3.2 – Kiel Social Court, decision of December 12, 2022, S 41 AS 92/22 – legally binding – contribution by attorney Helge Hildebrandt
Citizen's income will continue until priority benefits are actually approved
Citizen's Income (basic income support for job seekers under the German Social Code, Book II (SGB II)) is a so-called subsidiary social benefit. If the necessary cost of living can be covered by other social benefits, these other benefits must be applied for, § 12a sentence 1 SGB II. In this specific case, the Kiel Job Center rejected the application for continued benefits of a single mother with two minor children at the end of November 2022, citing this regulation, for the period from December 1, 2022, on the grounds that the family could cover their living expenses with housing benefit and child supplement. The mother immediately applied for both housing benefit and child supplement on November 25, 2022. She also pointed out to the Job Center the long processing times at the housing benefit offices and the family benefits office and requested continued benefits of unemployment benefit II (now Citizen's Income) until housing benefit and child supplement were actually approved. The Kiel Job Center rejected this request. The Social Court ruled in favor of the family.
The relevant provision of Section 12a Sentence 1 of the German Social Code, Book II (SGB II), which obligates recipients of benefits under the SGB II to claim priority benefits from other social security providers, does not authorize the basic income support provider to reject benefits under the SGB II by referring to a priority social benefit that must be applied for. Until the priority social benefits are received, the basic income support provider must, provided the other requirements are met, provide advance payments and continue to grant benefits under the SGB II – if necessary, by filing a claim for reimbursement in accordance with Sections 102 et seq. of the German Social Code, Book X (SGB X).
Source: Sozialberatung-kiel.de
Note:
Thomé Newsletter 08/2023 dated February 26, 2023 – Rejection with reference to priority services, using the Kassel district as an example.
Legal tip:
Social Court Landshut, judgment of 27 July 2017 – S 11 AS 170/16 – appeal allowed
When assessing the need for assistance, only the current situation is relevant (Federal Social Court, judgment of September 27, 2011, B 4 AS 202/10 R). There is no legal basis that would entitle a job center to reject an application for benefits to secure subsistence under the German Social Code, Book II (SGB II), solely on the grounds of an entitlement to housing benefit.
Until housing benefit is received, benefits to secure the livelihood must be granted.
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – LSG Baden-Württemberg, judgment of 02/05/2021 – L 12 AL 1738/18
Guiding principles:
An estimate of the remuneration relevant for calculating the winter employment levy is subject to comprehensive judicial review in the sense of an independent power of estimation, which also includes the application of a different estimation method.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG Bayern, Judgment of 16.12.2022 – L 8 SO 119/20
Guiding principles:
A notification of transfer pursuant to Section 93 of the German Social Code, Book XII (SGB XII) is resolved in another way pursuant to Section 39 Paragraph 2 of the German Social Code, Book X (SGB X) if a settlement is reached in civil court proceedings that conclusively regulates all transferred claims for the past and the future.
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Stuttgart Social Court – Decision of 16 February 2023 – Case No.: S 11 AY 3926/22 ER
Legal norms: 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, Stuttgart Social Court
Continued with attorney Sven Adam
Guiding principle of the editor of Tacheles e. V.:
1. Even with basic benefits (§ 3a AsylbLG), standard benefit level 1 must be granted to single persons!
2.. The aforementioned decision of the Federal Constitutional Court also establishes the unconstitutionality of the parallel provision of Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG (see also: Hessian State Social Court, decision of December 20, 2022 – L 4 AY 28/22 B ER; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of December 28, 2022), marginal note 44_18).
2. Insofar as the Federal Constitutional Court limited its order to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) and those entitled to benefits under Sections 3, 3a Paragraph 1 No. 2 Letter b) and Paragraph 2 No. 2 Letter b) of the AsylbLG are not covered by the order, the constitutional issues of the regulations in Section 3a of the AsylbLG are comparable, because in this respect, too, there are no reliable indications that savings are regularly achieved or can be achieved in collective accommodations through shared management that would justify a reduction in benefits by 10% (cf. Hessian State Social Court, decision of December 20, 2022 – L 4 AY 28/22 B ER).
Note from the editor of Tacheles e. V.:
See also Stuttgart Social Court, decisions of February 16, 2023 – S 11 AY 3850/22 ER; S 11 AY 44/23 ER and S 11 AY 102/23 ER
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – SG Fulda, judgment of January 13, 2023 – S 4 EG 4/20
Guiding principles:
Income received during the period of parental allowance is to be calculated on a daily basis, not in relation to the child's total month of life, in accordance with Section 3 Paragraph 1 Sentence 2 of the Federal Parental Allowance and Parental Leave Act (BEEG); accordingly, the daily income only reduces the calculated parental allowance for the respective day, so that the parental allowance for the remaining days without income is to be paid in full.
Source: www.socialgerichtsabilities.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
