1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – BSG, judgment of June 6, 2023 – B 4 AS 86/21 R
Basic income support for job seekers – Exclusion from SGB II benefits as a trainee – Termination of training – Cancellation and repayment of BAföG (Federal Training Assistance Act) – Effect of the application
Guidance note from the editor of Tacheles e. V.
1. The application for benefits required under § 37 SGB II has been submitted.
2. For the application of Section 28 of the German Social Code, Book X (SGB X), it is sufficient that the benefits initially applied for and now to be reimbursed under the Federal Training Assistance Act (BAföG) and the (for the time being) not applied for unemployment benefit II are in an exclusive relationship according to their respective factual requirements, and that the plaintiff has therefore initially only claimed the benefits under the Federal Training Assistance Act (BAföG).
Source: www.bsg.bund.de
Note:
Subsequent application for unemployment benefit II: A hollow tooth? A commentary by attorney Helge Hildebrandt on the lower court ruling.
1.2 – BSG, judgment of June 6, 2023 – B 4 AS 4/22 R
Basic income support for job seekers – EU citizens – right of free movement – right of residence for job seeking – right of residence as a family member – economic dependency – bridging benefits
Must an economic dependency relationship have already existed before entry into Germany and proof of maintenance payments be provided in order for a derived right of free movement – which contradicts the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) – pursuant to Section 3 Paragraph 1, Paragraph 2 Number 2 of the Freedom of Movement Act/EU 2004 in the version applicable until November 23, 2020?
Under what conditions is there an entitlement to bridging benefits pursuant to Section 23 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) as amended on 22 December 2016?
Guidance note from the editor of Tacheles e. V.:
Maintenance payments within the meaning of Section 3 Paragraph 2 Number 2 of the Freedom of Movement Act/EU (old version) require proof of an actual relationship of dependency. Such dependency exists only if the relative, considering their economic and social circumstances and taking into account the situation in their country of origin or homeland, is unable to provide for their basic needs themselves and therefore receives a substantial amount of maintenance.
This is lacking here, because the plaintiff's mother only made payments of less than 37 euros per month to her during the twelve months prior to her entry into the federal territory.
Source: www.bsg.bund.de
1.3 – BSG, judgment of 12/08/2022 – B 8 SO 4/21 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – maintenance payments
Guiding principle of the editor of Tacheles e. V.:
Maintenance payments actually received must be considered as income.
Guidance note from the editor of Tacheles e. V.:
1. In the law governing basic income support (or, from January 1, 2020, social assistance in general), only the claims of children against their parents for maintenance (and maintenance claims of parents against their children) are, in principle, not to be taken into account. However, there is no general priority of basic income support benefits over maintenance.
2. If the adult child successfully enforces their maintenance claim and maintenance payments are received, their entitlement to basic income support is reduced or excluded to that extent.
Source: www.socialgerichtsabilities.de
Note:
Federal Social Court ruling on maintenance payments as income and their relationship to basic income support benefits
More information: www.wolterskluwer.com
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Baden-Württemberg, decision of 02.06.2023 – L 7 AS 880/23 ER-B
Citizen's allowance: Holiday apartment is accommodation
Guiding principle of the editor of Tacheles e. V.:
1. A holiday apartment can be accommodation within the meaning of § 22 para. 1 SGB II, which is affirmed here.
2. Whether the intended use is only temporary or whether the use of a property for residential purposes is common compared to other beneficiaries under the German Social Code, Book II (SGB II), is not decisive in this respect (Federal Social Court, judgment of May 19, 2021 – B 14 AS 19/20 R).
3. Accommodation costs, which also include electricity costs, are not to be reduced by a portion for household energy calculated from the standard benefit (see Federal Social Court [BSG], judgment of November 24, 2011 – B 14 AS 151/10 R). The benefit system of the German Social Code, Book II (SGB II), does not generally permit an individual needs assessment for the consumption items included in the standard benefit (BSG, judgment of November 24, 2011 – B 14 AS 151/10 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 Munich, Judgment of 17 February 2023 – S 13 AS 783/21
Guiding Principles
I. Fees increase pursuant to No. 1008 of the German Lawyers' Fees Act (RVG) if the plaintiffs' lawyer expressly filed a review application pursuant to Section 44 of the German Social Code, Book X (SGB X) on behalf of all plaintiffs and thus acted for multiple clients. The decisive factor is solely the number of clients, regardless of which of them appears before the lawyer. The fact that individual plaintiffs were minors and represented by a parent does not preclude the application of No. 1008 of the RVG (see Federal Social Court (BSG), Judgment of December 21, 2019, B 14 AS 83/08 R).
II. A specific additional workload for the lawyer is irrelevant, because No. 1008 of the German Lawyers' Fees Act (RVG) is not a success fee, but rather a flat-rate payment to compensate for the typically incurred additional workload. Since the legislator assumes a balanced, mixed calculation, the court may not circumvent the legislator's authority by requiring narrower criteria than those stipulated by the provision.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Bayern, Judgment of 26.04.2023 – L 8 SO 214/22
Guiding principles:
If circumstances change after a longer period (here: several years) in which the accommodation costs of the beneficiary have been taken into account in their actual amount, a (further) request to reduce costs is necessary in order to take the accommodation costs into account again only to the extent deemed appropriate.
Source: www.socialgerichtsabilities.de
4.2 – LSG Hessen, Judgment of 17 May 2023 – L 4 SO 205/20
Guiding Principles
1. The assertion of a reimbursement claim by the second rehabilitation provider contacted within the meaning of Section 14 of the German Social Code, Book IX (SGB IX) as amended up to December 31, 2017, regarding benefits for periods from January 1, 2020, onwards constitutes an amendment to the claim within the meaning of Section 99 Paragraph 1 of the German Social Courts Act (SGG), even if the social assistance provider responsible for integration assistance under Chapter 6 of the German Social Code, Book XII (SGB XII) until December 31, 2019, has become the provider of integration assistance under state law since January 1, 2020.
2. The principle of continuity of services applicable in rehabilitation law is broken by the new regulations governing integration assistance from 1 January 2020, as a significant change to the legal framework for participation, with the consequence that continued responsibility cannot be assumed within the framework of Section 14 of the German Social Code, Book IX (SGB IX)
Source: www.socialgerichtsabilities.de
4.3 – SG Marburg, judgment of May 23, 2023 – S 9 SUN 27/22
Guiding principles:
The regulations in Section 82 Paragraphs 4 and 5 of the German Social Code, Book XII (SGB XII) and in Section 82a of the German Social Code, Book XII (SGB XII) regarding the deduction of allowances from income from supplementary retirement provision and from income from statutory pension insurance in the case of sufficient basic pension periods do not violate the principle of equal treatment under the Basic Law.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Social Court Darmstadt – Decision of 18.04.23 – File No.: S 16 AY 33/23
Legal norms: Section 3 Asylum Seekers' Benefits Act (AsylbLG), Section 3a AsylbLG, Section 193 Social Court Act (SGG) – Keywords: Standard benefit level 1, benefits under Sections 3 and 3a AsylbLG, cost decision, acknowledgment, Darmstadt Social Court
Guiding principle of the editor of Tacheles e. V.:
Even with basic benefits (§ 3a AsylbLG), standard benefit level 1 must be granted to single persons.
Source: Attorney Sven Adam
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
