1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Berlin-Brandenburg, decision of 24.04.2023 – L 4 AS 280/23 B ER
Guiding principles
1. The Employment Agency must also provide benefits pursuant to Section 44a Paragraph 1 Sentence 7 of the German Social Code, Book II (SGB II), if the agencies entitled to object do not properly conduct the procedure pursuant to Section 44a of the German Social Code, Book II (SGB II).
2. Section 44a paragraph 1 sentence 7 of the German Social Code, Book II (SGB II) does not provide agencies entitled to object under Section 44a paragraph 1 sentence 2 of the SGB II with the means to establish an obligation for the employment agency to provide benefits for an unforeseeable period of time through unlawful conduct.
3. The Employment Agency may therefore request a social security institution that, in its view, is acting improperly to declare within a reasonable period whether it disagrees with the assessment of employability and, if so, provide reasons for doing so. If the other institution fails to comply with this request, the Employment Agency is not entitled to deny benefits on the grounds of lack of employability. Rather, it may, despite the absence of an explicit objection or a statement of grounds for objection, obtain an expert opinion from the responsible pension insurance institution pursuant to Section 44a Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II), and make a final decision on employability based on this opinion.
Source: www.socialgerichtsabilities.de
1.2 – LSG Berlin-Brandenburg, decision of 23.05.2023 – L 32 AS 248/23 B ER PKH
Preliminary legal protection against the temporary suspension of benefits by the citizens' benefit office – here the citizens' benefit office acted unlawfully
Guiding principle of the editor of Tacheles e. V.:
1. The prerequisite for the provisional suspension of benefits pursuant to Section 331 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) is that the authority becomes aware of facts that lead to the suspension or lapse of the entitlement and that the decision from which the entitlement arises must therefore be revoked with retroactive effect.
2. The authority must have actual knowledge of the facts constituting the suspension or cessation of benefits. Mere suspicions are insufficient. Otherwise, the temporary suspension of benefits is unjustified.
Source: www.socialgerichtsabilities.de
1.3 – LSG Berlin-Brandenburg, Decision of 20 April 2023 – L 29 AS 320/23 B ER
Basic income support for job seekers – Exclusion of benefits for foreigners – EU citizens – Loss of the right to freedom of movement by determination of the immigration authorities – Effect of an objection or administrative court action against the determination of loss
Guidance note by the editor of Tacheles e. V.
1. Neither the explanatory memorandum nor the wording of the law provides any indication that the determination of loss should have the effect of constituting a factual situation for the (lack of) entitlement to benefits under Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) even before it becomes legally binding or without immediate enforceability. The amendment to Section 7 Paragraph 1 of the Freedom of Movement Act/EU merely means that the obligation to leave the country now only requires the effectiveness of the determination and not its unappealability, which can only have an effect in cases where, due to the lack of an objection or action or because of an order for immediate enforcement, no suspensive effect occurs (see Lower Saxony-Bremen Higher Social Court, decision of November 6, 2017 – L 8 SO 262/17 B ER; similarly, for example, Lower Saxony-Bremen Higher Social Court, decision of May 28, 2019 – L 8 SO 109/19 B ER; North Rhine-Westphalia Higher Social Court, decision of December 10, 2018 – L 21 AS 959/18 B ER).
Source: www.socialgerichtsabilities.de
Legal tip:
a. A. cf. Schleswig-Holstein Higher Social Court, decision of July 8, 2021 – L 6 AS 92/21 B ER
1.4 – LSG Berlin-Brandenburg, decision of 17.06.2023 – L 18 AS 512/23 B ER
Citizen's allowance: In individual cases, the authority must also cover rent arrears even in cases of unreasonable housing costs
Guidance note from the editor of Tacheles e. V.:
1. Debt assumption can also be considered in cases of unreasonable housing and utilities costs, as long as there is no obligation to reduce costs. A cost reduction procedure according to § 22 para. 1 sentence 7 SGB II has not yet been initiated, not even after the son moved out with his girlfriend.
2. If the authority continues to owe benefits for inappropriate housing and utilities for an ultimately unforeseeable period, it cannot argue to the person in need that the assumption of the (inappropriate) housing and utilities debt is not suitable for securing accommodation within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II).
Source: www.socialgerichtsabilities.de
Worth reading:
Rent arrears loans are possible in individual cases even with unreasonably expensive accommodation, article by attorney Matthias Göbe, Berlin
In cases of rent arrears, job centers typically provide a loan to cover the outstanding amount. However, this is contingent on the loan ensuring the long-term viability of the apartment.
This leads to job centers usually rejecting rent arrears loans when housing costs exceed the relevant reasonable limit. The Federal Social Court has also ruled that, for a rent arrears loan to be granted, the ongoing housing costs must be reasonable in principle (BSG, Judgment of June 17, 2010 – B 14 AS 58709 R-). However, exceptions are conceivable.
Two exceptions in this sense have already been recognized by case law:
www.anwalt.de
2. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – SG Magdeburg, judgment of June 16, 2023 – S 34 AS 3828/16
Principle:
If, in the course of the plaintiff's lawsuit for benefits to secure her livelihood against the defendant job center, the pension insurance institution retrospectively determines a permanent total incapacity for work, the responsibility shifts to the social welfare provider if the need for assistance continues.
The decisive factor is the point in time when the need arises and not the official determination by the pension insurance institution, which is also joined here (see BSG, judgment of October 6, 2022 – B 8 SO 1/22 R).
The social welfare agency, which must be joined as a party to the proceedings, can be ordered to provide benefits pursuant to Section 75 Paragraph 5 of the Social Court Act (SGG) if the originally responsible agency for benefits under Book II of the German Social Code (SGB II) has already made a decision and the joined social welfare agency has not yet decided on the claim (see Federal Social Court (BSG), Judgment of June 7, 2023 – B 4 AS 4/22 R). The previous benefit decisions of the defendant job center may not be amended by either the court or the social welfare agency.
If credits from utility and heating cost statements are to be taken into account when calculating the amount of benefits, they are credited as one-off income in accordance with Section 82 Paragraph 7 Sentence 1 of the German Social Code, Book XII (formerly Section 82 Paragraph 4 of the German Social Code, Book XII). The calculation is based on the following month because the benefits have already been provided, albeit not by the convicted social welfare agency, but by the defendant job center.
Guiding principle
on matters of basic income support for job seekers – On the conviction of the joined social welfare agency in the event of a change of responsibility due to a retroactive determination of permanent total incapacity for work during the course of the legal proceedings
Source: www.landesrecht.sachsen-anhalt.de
2.2 – SG Kiel, Judgment of 14.03.2023 – S 35 AS 35/22 – Appeal pending before the SH LSG, file number L 6 AS 41/23
Citizen's allowance: Additional allowance for the purchase of a washing machine
Recipients of benefits under the German Social Code Book II (SGB II) (citizen's allowance) may be entitled to financial assistance from their job center for the purchase of a washing machine if their existing washing machine has broken down and a repair is no longer economically worthwhile.
The entitlement arises from Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
More information: sozialberatung-kiel.de
3. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
3.1 – LSG Bayern, Judgment of 20.10.2022 – L 8 SO 35/22
Guiding Principles
1. The landlord's demand for additional utility costs represents a need in the month it is due.
2. If several people live together in one apartment, the individual accommodation needs are generally determined on a per capita basis. This also applies to a landlord's claim for additional utility costs.
Source: www.socialgerichtsabilities.de
3.2 – LSG Berlin-Brandenburg, judgment of October 13, 2022 – L 23 SO 229/21
Guidelines
for setting the standard rate differently in cases of partial coverage of needs
Source: www.socialgerichtsabilities.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – LSG Bayern, Judgment of 08.07.2023 – L 8 AY 7/23 – Appeal allowed
Guiding Principles:
A restriction of benefits under Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires a breach of duty. This can consist of the fact that the foreigner in question does not leave the country, even though he was aware of the consequences under benefit law for his behavior. This requires instruction with a deadline.
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – LSG Hessen, Judgment of 13 June 2023, Case No. L 2 R 61/21
"Immediately before the start" does not mean the day before
Insured persons are entitled to transitional allowance during a rehabilitation measure
During inpatient rehabilitation, insured persons are entitled to transitional allowance from the German Pension Insurance. The prerequisites are that they received unemployment benefits or a comparable benefit immediately before the start of the medical treatment and that contributions to the pension insurance were paid. Immediacy is also considered to be given if there are nine days between the end of the receipt of unemployment benefits and the approval of the rehabilitation measure.
Further information: www.sozialgerichtsbarkeit.de
5.2 – Social Court Dortmund, Judgment of April 25, 2023 – S 102 AL 339/21
Suspension period after summary dismissal averted
The Dortmund Social Court had to decide on a twelve-week suspension of unemployment benefits in this case. The employment agency argued that the man's drug use and distribution to a colleague during working hours had led to the loss of his job. But was the addicted man truly at fault?
According to the highest court ruling of the Federal Social Court (BSG), there is no gross negligence if the addiction is already considered an illness. This is the case here.
Further information: www.dgbrechtsschutz.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
