1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – Saxon State Social Court, Judgment of 09.05.2023 – L 4 AS 179/20
Regarding the receipt of maternity pay and its classification as a one-off payment or ongoing payment
Guiding principle of the editor of Tacheles e. V.:
Back payments of maternity allowance are a one-off benefit.
Note:
As of July 1, 2023, maternity pay is no longer to be considered as income.
Source: Attorney Marko Röhnert
Attorney Marco Röhnert states the following principle:
1. In the specific decision, the State Social Court of Saxony considered the payment of maternity allowance to be a one-off payment within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), due to the provision of Section 11 Paragraph 2 Sentence 3 SGB II (“…for ongoing income that is received at intervals longer than monthly, Paragraph 3 applies accordingly…”).
2. Whether the payment of maternity allowance already has the legal character of a one-off income within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), did not have to be decided due to the application of Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II).
3. However, based on the Senate's statements in the grounds for its decision, it can generally be assumed that maternity pay is to be classified as a one-off income within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II).
4. The decision clearly demonstrates once again the legal significance of Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) in practice, and specifically in the detailed examination of income inflows of any kind.
Legal tip regarding the crediting of maternity allowance:
LSG Saxony-Anhalt, judgment of November 20, 2019 – L 2 AS 693/15 – maternity allowance is to be treated as regular income (as here Hengelhaupt in: Hauck/Noftz, SGB, as of January 2015, § 11 SGB II, para. 537; for one-off income, LSG Bavaria, decision of February 13, 2014 – L 7 AS 755/13 NZB).
Note:
Full text including the headnote is now available at www.sozialgerichtsbarkeit.de
Guiding Principles
: Maternity allowance paid to a recipient of benefits under Book II of the German Social Code (SGB II) pursuant to Section 19 Paragraph 1 of the Maternity Protection Act (MuSchG) and Section 24i Paragraph 1 of Book V of the German Social Code (SGB V) is not considered regular income within the meaning of Section 11 Paragraph 2 of Book II of the German Social Code (SGB II) simply because it serves as wage replacement. Nor is it considered regular income because maternity allowance paid for the postnatal protection period within the meaning of Section 3 Paragraph 2 of the Maternity Protection Act (MuSchG) is offset against parental allowance pursuant to Section 3 Paragraph 1 Sentence 1 No. 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) (contra: Higher Social Court of Saxony-Anhalt, Judgment of November 20, 2019 – L 2 AS 693/15 – juris para. 63). The decisive criterion is whether maternity allowance is paid on a recurring basis, i.e., regularly.
There is strong support for the view that maternity allowance paid out pursuant to Section 19 Paragraph 1 of the Maternity Protection Act (MuSchG) and Section 24i Paragraph 1 of the German Social Code, Book V (SGB V) constitutes a one-time payment within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II). If the maternity allowance, which is granted by the statutory health insurance fund in its established administrative practice in two installments, is paid at intervals longer than one month, Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) applies, regardless of whether the maternity allowance is a one-time payment or not.
Reimbursements from statutory health insurance under the PregnancyPLUS package provided for in its statutes for non-prescription, pharmacy-only medicines containing magnesium, procured by the insured person herself, are not considered income within the meaning of Section 11 of the German Social Code, Book II (SGB II).
Source: www.socialgerichtsabilities.de
1.2 – LSG NSB, decision of 10.01.2023 – L 7 AS 6/22 B
Guiding Principles
1. If legal aid is not granted to all co-litigants, the remuneration claim of an appointed lawyer is generally limited to the per capita share of remuneration calculated from the total amount of legal fees for the representation of all co-litigants.
2. A deviation is possible if, according to an objective assessment of the procedural and representation situation, due to a procedural break, the further legal activities or judicial actions causing fees or expenses, even according to the apparent internal assessment, only affect one or some of the co-litigants with a corresponding internally desired allocation of costs.
Source: www.socialgerichtsabilities.de
1.3 – LSG Lower Saxony-Bremen, Judgment of 25.04.2023 – L 15 AS 19/23
Basic income support for job seekers; review application; conversion of loan into grant; expiry date; preferential treatment procedure
Official Headnote:
The provision of unemployment benefit II as a grant is a different matter from its provision as a loan (cf. Federal Social Court [BSG] judgment of February 28, 2013 – B 8 SO 4/12 R). If, in the review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), the conversion of an approval of unemployment benefit II as a loan into a grant is requested, this constitutes an assertion of the provision of benefits within the meaning of Section 44 Paragraph 1 Sentence 1 SGB X, so that, pursuant to Section 40 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) in conjunction with Section 44 Paragraph 4 Sentence 1 SGB X, a so-called limitation period of one year applies.
Source: voris.wolterskluwer-online.de
2. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – SG Karlsruhe, judgment of May 9, 2023 – S 12 AS 2046/22
Guiding Principles:
It is not in accordance with the purpose of the regulation and is to be considered irrelevant if job centers or social courts attempt to justify a complete withdrawal or denial of subsistence-level benefits under Section 66 Paragraph 1 of the German Social Code, Book I (SGB I), based on doubts about the need for assistance (contrary to: Schleswig-Holstein Higher Social Court, judgment of June 21, 2016, file no.: L 6 AS 121/13, juris para. 47; Saxony-Anhalt Higher Social Court, judgment of April 23, 2018 – L 4 AS 554/15 –, para. 66, juris).
In the case of a refusal or withdrawal of more than 30 percent of the relevant standard benefit for basic income support, an authority must indicate in its discretionary considerations which atypical circumstances and for which extraordinary objectives such a far-reaching shortfall in the subsistence minimum is suitable, necessary and appropriate in the specific individual case in order to induce the previously omitted cooperation and to contribute significantly to clarifying the facts relevant to the decision.
To ensure that the specific circumstances of the individual case are clarified, which may preclude the required cooperation or the withdrawal or refusal of benefits, but which the person concerned may not (or cannot) present in writing, the authority must, before issuing a refusal or withdrawal of basic income support benefits, give the person concerned the opportunity to present their personal situation not only in writing, but also in an oral hearing, if there are corresponding indications.
Every tax-funded "customer advisor" of every tax-funded "job center" can reasonably be expected to offer their royal "customers" "customer meetings" in an appreciative tone when necessary and to solicit their cooperation in a benevolent manner.
The Social Court of Karlsruhe deeply regrets its erroneous course in the case of the plaintiffs, which is currently unconstitutional and its unforgivable failure.
Source: www.socialgerichtsabilities.de
2.2 – SG Hamburg, Judgment of 10 March 2023 – S 28 AS 3090/17
Conditions for the approval of additional needs benefits under basic income support law – Health insurance company's responsibility for the supply of medicines
Guiding principle
1. For recipients of basic income support, an additional need is recognized under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), if it exists as an ongoing, not merely one-off, special need and is unavoidable. (Paragraph 29)
2. The requirement of necessity is not met if the applicant asserts a need to the basic income support provider for a non-prescription medication not recognized by the Federal Joint Committee. In this respect, the applicant must comply with the procedure prescribed by Section 13 Paragraph 3a of the German Social Code, Book V (SGB V), with regard to their health insurance fund. (Paragraph 30)
3. The German Social Code, Book II (SGB II), is not intended to circumvent the legal protection prescribed against the health insurance fund. (Paragraph 34)
Source: www.landesrecht-hamburg.de
Legal tip:
1. Lower Saxony-Bremen State Social Court, judgment of 10 January 2019 – L 15 AS 262/16 – If the monthly claimed costs of non-prescription medications significantly exceed the amount covered by the standard allowance for healthcare, reimbursement of costs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is only possible with proven medical indication (following Bavarian State Social Court, decision of 9 March 2017 – L 7 AS 167/17 B).
2. Hamburg State Social Court, Judgment of 20 June 2017 – L 4 AS 128/15
Guiding principle (Editor):
Affirmation of an additional need according to § 21 para. 6 SGB II for an average of 100 euros in medical costs per month that are not covered by the health insurance.
2.3 – Social Court Munich, decision of 13 February 2023 – S 13 AS 113/23 ER
Citizen's allowance – costs of accommodation and heating; necessary move to an unaffordable apartment; waiting period according to § 22 para. 1 sentence 2 SGB II; transitional provision according to § 65 para. 3 SGB II
Guiding Principles
1. Applicants who have been receiving basic income support since the Corona pandemic fall under the waiting period of one year with regard to accommodation and heating needs introduced by the Citizen's Income Act on 01.1.2023 pursuant to Section 22 of the German Social Code, Book II (SGB II), because, according to Section 65 Paragraph 3 of the SGB II, periods of benefit receipt up to 31.12.2022 are disregarded.
2. However, the necessary move to an unaffordable apartment constitutes a break in the waiting period that must be taken into account under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II). This negates the protective purpose of Section 22 Paragraph 1 Sentence 2 of the SGB II, which is to preserve the existing apartment and living environment for benefit recipients, and expenses exceeding reasonable limits can only be recognized with prior approval from the benefit provider.
3. The opposite conclusion cannot be drawn from Section 22 Paragraph 1 Sentence 3 Clause 2, Sentence 6 of the German Social Code, Book II (SGB II), that after a necessary move, the actual expenses will continue to be recognized without limitation under considerations of appropriateness.
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts and the state social courts on employment promotion law (SGB III)
3.1 – SG Karlsruhe, judgment of April 17, 2023 – S 5 AL 1978/22
Guiding Principles:
An application for a "training bonus plus" is only considered submitted once all required documents have been provided. If a document is missing, the employment agency must inform the applicant immediately. If it fails to do so and the applicant therefore misses the application deadline, the applicant is to be treated as if they had met the deadline.
Source: www.socialgerichtsabilities.de
3.2 – North Rhine-Westphalia State Social Court, Judgment of March 2, 2023 – L 9 AL 81/22 – Author: Silke Clasvorbeck, Legal Protection Secretary and Online Editor, Bielefeld
The accusation of guilt carries less weight
Anyone wishing to receive unemployment benefits must be available for job placement efforts by the employment agency. Due to a particular family situation, the plaintiff was ultimately unavailable and was ordered to reimburse the benefits. The DGB legal protection service in Essen was able to convince the State Social Court that the plaintiff had not acted with gross negligence. The COVID-19 pandemic also played a role in this decision.
Further information: www.dgbrechtsschutz.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Mecklenburg-Vorpommern, decision of 06.04.2023 – L 9 SO 41/22 ER
Guiding principle:
Despite limited official investigation duties, the arbitration panel must specifically demand cooperation from the parties involved in the arbitration proceedings.
Source: www.landesrecht-mv.de
4.2 – LSG Hessen, judgment of 02/22/2023 – L 4 SO 169/20 ZVW
Guiding Principles:
The causal link between conduct and need or obligation to receive benefits, as required by Section 103 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), can be negated due to an error in advice provided by the authority. This causal link is negated if the authority acted negligently in its advice and, after a careful assessment of the conduct (here: omission) of the person in need of assistance or a third party, the error in advice, and any other contributing factors, the conduct of the person in need of assistance or the third party cannot be considered a substantial cause.
Source: www.socialgerichtsabilities.de
4.3 – SG Detmold, Decision of 12.12.2022 – S 30 SO 245/22 ER
Guidance note from the editor of Tacheles e. V.:
Regarding the assumption of rent during the period of incarceration – social difficulties are denied here.
Source: www.socialgerichtsabilities.de
4.4 – LSG NSB, judgment of 02/21/2023 – L 15/8 SO 182/21
Guiding principles
: A reference to persons with priority obligations that excludes entitlement under Section 74 of the German Social Code, Book XII (SGB XII) is not an option, at least if it is established at the time the need arises that the persons with priority obligations are minors and indigent.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Social Court Lüneburg, decision of 26 March 2023 – S 26 AY 2/23 ER
Guidelines for
benefits under the Asylum Seekers' Benefits Act (AsylbLG) upon visa-free entry
Source: www.socialgerichtsabilities.de
5.2 – LSG NSB, Judgment of 08.12.2022 – L 8 AY 48/18 – Appeal allowed
Guiding Principles
1. A restriction of benefits due to non-compliance with deportation measures for reasons attributable to the individual, pursuant to Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version (or Section 1 Paragraph 3 of the AsylbLG in its current version), requires, due to its coercive nature, a congruence between the abusive conduct and the benefit period; a restriction of benefits is therefore only possible as long as the reprehensible conduct continues. Section 1a No. 2 of the AsylbLG in its former version (or Section 1 Paragraph 3 of the AsylbLG in its current version) is not a sanction provision. It is no longer applicable once the foreigner's conduct hindering the enforcement of a deportation measure has ceased.
2. Mere passive resistance to a deportation measure (here: remaining in the apartment while activists block the hallway and door) is neither reprehensible conduct within the meaning of Section 1a No. 2 AsylbLG aF (or Section 1a Paragraph 3 AsylbLG nF) nor conduct that abuses the right to influence the length of stay in Germany within the meaning of Section 2 Paragraph 1 AsylbLG.
3. Regarding the obligation to represent within the meaning of Section 1a No. 2 AsylbLG aF (or Section 1 Paragraph 3 AsylbLG nF).
Source: www.socialgerichtsabilities.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Standard German is the official language for job center notices
The North Rhine-Westphalia State Social Court in Essen has clarified in a recently published ruling (Case No.: L 7 AS 1360/21) that job centers have no obligation to write their communications in Low German.
More information: www.juraforum.de
6.2 – Court sets standards: Weimar Administrative Court on homeless shelters
The Weimar Administrative Court, in a recently published ruling (Case No.: 1 E 302/23 We), has determined that homeless people have the right to adequately equipped and heated accommodation. The case concerns the district of Nordhausen.
More information: www.juraforum.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
