1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – Hamburg Higher Social Court, decision of 08.03.2023 – L 4 AS 31/23 B ER D
Principle
1. The exception to the general rule pursuant to Section 7 Paragraph 1 Sentence 4 Second Half-Sentence of the German Social Code, Book II (SGB II) does not require that the determination of the loss of freedom of movement has become legally binding.
2. Although objection and legal action against the determination of loss have suspensive effect, this does not eliminate the obligation to leave the country as such, but merely suspends its enforcement.
3. This is also not objectionable under constitutional law, given that it concerns EU citizens who can usually return to their home country at short notice without any problems (as in the decision of the Higher Social Court of Hesse of 9 February 2023 – L 7 AS 447/22 B ER with further references).
Source: www.landesrecht-hamburg.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
1.2 – Saxon State Social Court, decision of 13 October 2022 – L 3 AS 1138/16 B
Guiding Principles
1. A social court that considers an application for an oral hearing within the meaning of Section 105 Paragraph 2 Sentence 2 of the Social Courts Act (SGG) to be late and, if applicable, deems the requirements for reinstatement to the previous status not to be met, or considers the application inadmissible for other reasons, may not dismiss the application by order due to a lack of legal basis, but must decide on it by judgment on the basis of an oral hearing, unless such a hearing is waived.
2. The admissibility of an appeal is not precluded by the fact that the Social Court should have decided on the request for an oral hearing by judgment rather than – as happened – by order. A plaintiff must not suffer any disadvantage by having made use of the legal remedy to which the court pointed out. Rather, in such a case, according to the principle of most-favored-nation treatment, both the legal remedy that would have been admissible against the chosen form of decision and the legal remedy that would have been admissible against the correct form of decision are admissible.
3. The Higher Social Court shall decide on an appeal against a decision of a Social Court by which it has dismissed as inadmissible an application for an oral hearing within the meaning of Section 105 Paragraph 2 Sentence 2 of the Social Courts Act (SGG), in a panel consisting of a presiding judge, two other professional judges and two lay judges.
Source: www.socialgerichtsabilities.de
1.3 – Saxon State Social Court, Judgment of 19 January 2023 – L 3 AS 1188/16
Guiding Principles
1. The Social Court has the authority to decide the case on its merits if the objection was not dismissed as inadmissible because of an error attributable to the plaintiff as the objector, but because of the legal opinion held by the defendant regarding the inadmissibility of the objection.
2. According to the clear wording of Section 40 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) (in the version applicable from April 1, 2011 to December 31, 2015), the reference point for the limitation of the reimbursement claim is the "needs for accommodation taken into account in the calculation of unemployment benefit II and social assistance", but not the payment amount attributable to these needs.
3. When applying the percentage limitation of the reimbursement claim pursuant to Section 40 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) (in the version applicable from April 1, 2011 to December 31, 2015), the costs or needs for heating and hot water supply are not to be taken into account.
Source: www.socialgerichtsabilities.de
1.4 – LSG Hessen, Judgment of 24.02.2023 – L 9 AS 572/19 – Appeal allowed
Guiding principles
1. Even a provisional grant of benefits pursuant to Section 328 Paragraph 1 of the German Social Code, Book III (SGB III) can form the basis for a claim for reimbursement pursuant to Sections 102 et seq. of the German Social Code, Book X (SGB X) (contrary to the Federal Social Court (BSG), judgment of January 30, 2002, B 5 RJ 6/01, juris, para. 21).
2. A municipal job center may have a claim for reimbursement against the opting municipality pursuant to Section 105 of the German Social Code, Book X.
3. EU citizens who are excluded from benefits under the German Social Code, Book II (SGB II) pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II in the version applicable until December 28, 2016, are entitled to social assistance benefits pursuant to Section 23 Paragraph 1 Sentence 3 SGB XII a. F. if their right of residence has become permanent, which is regularly the case after a stay of six months in Germany that is tolerated by the immigration authorities (overruling the Senate's case law of September 29, 2016, L 9 AS 427/16 B ER).
4. An opt-in municipality that is a social welfare provider has knowledge within the meaning of Section 105 Paragraph 3 of the German Social Code, Book X (SGB X), of the prerequisites for needing assistance as soon as the municipal job center has corresponding knowledge.
5. If the municipal job center has a claim for reimbursement against the municipality participating in the optional program, the benefit recipient's claim against the municipality is deemed satisfied under Section 107 of the German Social Code, Book X (SGB X). This grants the recipient the right to retain the benefits, which precludes any subsequent demand for repayment of the benefits. The benefits that the recipient initially received as benefits under the German Social Code, Book II (SGB II), are therefore considered benefits under the German Social Code, Book XII (SGB XII).
Source: www.socialgerichtsabilities.de
1.5 – LSG Baden-Württemberg, judgment from September 20, 2022 – L 9 AS 135/19
Guidance note from the editor of Tacheles e. V.:
Regarding the question of whether a homeless person can claim additional hardship benefits within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for expenses for personal hygiene, laundry and clothing, this is answered in the negative.
Source: www.socialgerichtsabilities.de
1.6 – LSG Berlin-Brandenburg, Judgment of 30 March 2023 – L 32 AS 1888/17 – Appeal to the Federal Social Court (BSG) allowed
Berlin job center must recognize full rent costs – comparison with social housing rents required
Guiding principle of the editor of Tacheles e. V.:
1. When assessing the question of how much rent costs should be covered by job centers, a comparison must be made with the rents for social housing.
2. Rents paid for subsidized housing under social housing law could not be considered unreasonable.
Press release from the Berlin-Brandenburg Higher Social Court dated April 4, 2023
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 07.02.2023 – S 13 AS 769/21
Guiding principles:
Even within the temporal scope of application of Section 67 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), a correction of the provisionally granted benefits via Section 48 of the German Social Code, Book X (SGB X) is excluded, at least after the expiry of the approval period.
Source: www.socialgerichtsabilities.de
Note:
See also Freiburg Social Court, judgment of April 6, 2022 – S 13 AS 2141/21; Dortmund Social Court, judgment of December 20, 2022 – S 37 AS 196/22 – unpublished; Detmold Social Court, judgment of January 17, 2023 – S 35 AS 1024/21; left open by Baden-Württemberg Higher Social Court, judgment of November 22, 2022 – L 13 AS 1610/22
2.2 – SG Karlsruhe, Judgment of 10 March 2023 – S 12 AS 2454/22
Guiding Principles:
Insofar as a citizen's evidence is demonstrably thwarted by gaps in electronic administrative files, the legal principles on culpable obstruction of evidence justify, in favor of the citizen, relaxations of the burden of proof up to and including a reversal of the burden of proof, even regardless of whether any concrete, personally culpable misconduct can be established within the sphere of the authority, due to the official organizational negligence.
Source: www.socialgerichtsabilities.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Bayern, judgment of 03/08/2023 – L 10 AL 120/21
Guiding principles:
The start of the reference period according to § 143 para. 1 SGB III is determined by the personal registration as unemployed, insofar as unemployment benefit has already been granted by way of equal treatment, even if the employment relationship under insurance law continues beyond the commencement of unemployment under benefit law.
Source: www.socialgerichtsabilities.de
3.2 – LSG NSB, judgment of 02/11/2023 – L 11 AL 10/22
Qualifying period; reference period; transitional allowance for vocational rehabilitation; immediacy; extension of the reference period; evaluative assessment
Official Headnote:
The receipt of transitional allowance due to vocational rehabilitation does not establish compulsory insurance under Section 26 Paragraph 2 No. 1 of the German Social Code, Book III (SGB III), and accordingly does not establish an entitlement to benefits within the meaning of Section 142 SGB III. This is also not objectionable under constitutional law (following the Federal Social Court's judgment of December 4, 2014, B 5 AL 1/14 R). Regarding the requirement of immediacy within the meaning of Section 26 Paragraph 2, last half-sentence, SGB III (here: denied in the case of a time interval of approximately 15.5 months between a first and a second period of receiving injury benefits, interrupted by the receipt of transitional allowance due to vocational rehabilitation).
Source: voris.wolterskluwer-online.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg, judgment of March 6, 2023 – L 7 SO 2466/22
Guiding principles:
If the provisional nature of a benefit award has become moot due to the passage of time (§ 44a para. 6 sentence 1 SGB XII), the provisional nature of the award may no longer be revoked in court proceedings, regardless of whether it was originally unlawful.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Bayern, judgment of 03/09/2023 – L 8 AY 110/22
Guiding principles
1. A restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 No. 1 AsylbLG also requires – as an unwritten prerequisite – conduct contrary to duty.
2. This breach of duty can only consist of remaining in the federal territory in breach of duty and includes, in addition to knowledge of the possibility of return with a deadline, also that the return to the country granting protection is possible and reasonable.
3. The possibility and reasonableness of a return arise from the decision in the asylum procedure or must be assessed taking into account the relevant administrative court case law.
Source: www.socialgerichtsabilities.de
5.2 – Stuttgart Social Court – Decision of March 24, 2023 – Case No.: S 11 AY 720/23 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
Even with basic benefits (§ 3a AsylbLG), standard benefit level 1 must be granted to single persons (principle of the editor of Tacheles e. V.).
Guidance note by the editor of Tacheles e. V.
The Chamber is of the opinion that the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21) regarding standard benefit level 1 undoubtedly also renders the parallel regulation of Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG unconstitutional (see also: Hessian State Social Court, decision of 20 December 2022 – L 4 AY 28/22 B ER).
Source: Attorney Sven Adam
5.3 – Social Court Magdeburg – Decision of 27 March 2023 – File No.: S 25 AY 39/22 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, Magdeburg Social Court
Even with basic benefits (§ 3a AsylbLG), standard benefit level 1 must be granted to single persons (principle of the editor of Tacheles e. V.).
Guidance note by the editor of Tacheles e. V.
1. The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of § 2 para. 1 sentence 1 and sentence 4 no. 1 AsylbLG.
2. The Chamber is convinced that this consideration of the Federal Constitutional Court must also be applied to the parallel provisions for beneficiaries in collective accommodations pursuant to Section 3a AsylbLG, since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG or Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional.
Source: Attorney Sven Adam
Legal tip:
see Social Court Dresden, decision of March 24, 2023 – Case No.: S 3 AY 20/23 ER – Legal provisions: Section 3 Asylum Seekers' Benefits Act (AsylbLG), Section 3a AsylbLG, Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Standard benefit level 1, benefits according to Sections 3, 3a AsylbLG
Source: Attorney Sven Adam
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – LSG Saxony-Anhalt on the existence of a community of need according to § 7 para. 3, 3a SGB II
Partners of an employable person entitled to benefits can become members of the benefit unit if they live in the same household as the person entitled to benefits and form a so-called "community of responsibility and support".
Conclusion: The decisive factor
in determining whether the legal presumption of a shared household applies when one partner is caring for the other's children living in the same household is the behavior of the respective partner. Crucially:
Substantial, child-specific assistance that goes beyond simply preparing meals together and washing laundry.
During the childcare period, the parent must be supported by their partner to such an extent that it is justified to assume a sustainable relief.
Source: Judgment of the Higher Social Court of Saxony-Anhalt of 16 November 2022 – L 2 AS 649/18
Note:
Judgment published in the Tacheles case law ticker, week 7/2023
6.2 – Federal Social Court (BSG): Is a €150 lump sum for ALG II recipients sufficient for additional mask and hygiene needs during the pandemic? An article by attorney Thomas Eschle
The Federal Social Court (BSG) has granted legal aid to an appellant in a non-admission appeal under file number B 4 AS 36/23 and appointed lawyer Thomas Eschle, Stuttgart, to represent him.
Legal aid is only granted by the state if the case has a prospect of success. Therefore, the case before the Federal Social Court (BSG) could be interesting, as it could be the first time that an important question related to the COVID pandemic is clarified by the highest court
Was the flat-rate payment of €150 for ALG II recipients sufficient for additional mask and hygiene needs during the pandemic, or was the subsistence level of those affected undercut despite this payment?
More information: www.anwalt.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
