1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Saxony-Anhalt, decision of 04.07.2023 – L 4 AS 122/23 B ER
Basic income support for job seekers – Exclusion of benefits for foreigners without a right of residence – EU citizens – Requirements for assuming an abuse of rights invoking the freedom of movement for workers – Employment – Claiming supplementary social benefits – Household – Full coverage of one's own needs – Preliminary legal protection proceedings
Principle
1. The concept of abuse in connection with the guarantee of freedom of movement for workers must, in principle, be interpreted narrowly. The receipt of citizen's allowance or basic income support for job seekers, which is granted to supplement actual and genuine employment or for (further) integration into the labor market, does not in itself constitute an abuse of the right to freedom of movement.
2. Therefore, there is no room for the assumption of an abuse of rights in reliance on the freedom of movement for workers if the person concerned can fully cover his own needs through his work (LSG Hessen, decision of 11 December 2019, L 6 AS 528/19 B ER, juris RN 43).
Source: www.landesrecht.sachsen-anhalt.de
1.2 – LSG Saxony-Anhalt, Judgment of 22.06.2023 – L 4 AS 334/21
Social court proceedings – reimbursement of costs in preliminary proceedings – successful objection – accommodation and heating – SGB II benefits
Principle
1. Section 63 Paragraph 1 of the German Social Code, Book X (SGB X) constitutes a self-contained regulation for the reimbursement of costs in so-called isolated objection proceedings. It is a rule-exception relationship, where, in principle, the successful outcome is the sole determining factor (Sentence 1). The cost ratio to be determined is based on the ratio of success to failure. An objection is only successful to the extent that it has been (remedyed or) granted.
2. If the preliminary proceedings concern the approval of higher benefits under Book II of the German Social Code (SGB II), the objection is only successful to the extent that further benefits have been granted. If a calculation item claimed by the objector (here: higher heating costs) does not lead to a higher benefit entitlement due to a change in circumstances that has occurred in the meantime (here: inflow of income), the objection is unsuccessful in this respect.
Source: www.landesrecht.sachsen-anhalt.de
1.3 – LSG Saxony-Anhalt, decision of 23.05.2023 – L 2 AS 128/23 B ER
Principle
1. A decision to refuse benefits without a time limit is not rendered moot by the submission of a new application for benefits, but only by a decision on the merits of that application.
2. The undistributed profit of a limited liability company (GmbH) cannot be attributed to the sole shareholder and managing director as income pursuant to Section 11 of the German Social Code, Book II (SGB II), if the share capital is not secured. The self-employed individual lacks the power to dispose of the profit because, according to Section 30 of the German Limited Liability Companies Act (GmbHG), the company's assets required to maintain its share capital may not be distributed to the shareholders.
Source: www.landesrecht.sachsen-anhalt.de
1.4 – LSG NRW, Judgment of 15.12.2022 – L 7 AS 378/22 – Appeal allowed
Death benefit advance is a one-time payment – crediting
The cancellation and reimbursement notice is unlawful, because the death quarter advance payment is not a current income within the meaning of Section 11 Paragraph 2 Sentence 1 SGB II (principle of editor of Tacheles e. V.).
Guidance note by the editor of Tacheles e.V. V.
1. It is irrelevant whether the death benefit constitutes privileged income under Section 11a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) (denied, for example, by the Bavarian State Social Court, judgment of November 29, 2017 – L 11 AS 322/17 –, paragraphs 18–26, juris, according to which the death benefit, like the remaining widow's pension, ultimately serves to secure the livelihood; Schleswig-Holstein State Social Court, judgment of December 13, 2021 – L 7 R 122/19 –, paragraph 34, juris, appeal pending B 5 R 1/22 R; Düsseldorf Social Court, judgment of February 20, 2019 – S 5 R 2625/14 –, paragraphs 25–27, juris; Darmstadt Social Court, judgment of January 23, 2020 – S 19 AS 190/19; Söhngen in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 11a
Source: www.socialgerichtsabilities.de
1.5 – LSG Celle-Bremen, decision of 04.05.2023 – L 15 AS 360/21
Effects of rent caps of the concept above the table values according to § 12 WoGG plus safety surcharge (jurisPR-MietR 17/2023 Note 1)
Guiding principle regarding the comment:
If the rent ceilings determined according to the concept of the benefit provider are already above the table values according to § 12 WoGG plus a safety surcharge of 10%, this does not generally lead to the assumption of higher or even the actual costs of accommodation if the concept is inconclusive.
Source: Juris
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 June 6, 2023 – S 12 AS 2208/22; S 12 AS 1358/23; S 12 AS 1359/23
1. The Federal Constitutional Court is referred to the question of whether Section 70 Sentence 1 of the Second Book of the Social Code – Basic Income Support for Jobseekers – in the version of Article 1 Number 5 of the Act on the Regulation of a One-Off Payment by the Basic Income Support Systems to Adult Benefit Recipients and on the Extension of Easier Access to Social Security and on the Amendment of the Social Service Provider Deployment Act on the Occasion of the COVID-19 Pandemic (Social Protection Package III) of 10 March 2021 with effect from 1 April 2021, is compatible with the fundamental right to a guaranteed minimum standard of living in accordance with human dignity under Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle of Article 20 Paragraph 1 of the Basic Law and the general principle of equality under Article 3 Paragraph 1 of the Basic Law.
2. The Federal Constitutional Court is referred to the question of whether Section 73 of Book Two of the Social Code – Basic Income Support for Jobseekers – as amended by Article 1 Number 5 of the Act on the Regulation of an Immediate Supplement and a One-Off Payment in the Social Minimum Security Systems and on the Amendment of the Fiscal Equalization Act and Other Acts of 23 May 2022 with effect from 1 June 2022, is compatible with the fundamental right to a guaranteed minimum standard of living in accordance with human dignity under Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle of Article 20 Paragraph 1 of the Basic Law and the general principle of equality under Article 3 Paragraph 1 of the Basic Law.
Source: www.socialgerichtsabilities.de
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – LSG Saxony-Anhalt, Judgment of 20.04.2023 – L 8 SO 27/21
Regarding the consideration of voluntary payments by the mother of an adult person in need of assistance as maintenance within the framework of care assistance.
Source: www.landesrecht.sachsen-anhalt.de
3.2 – LSG Saxony-Anhalt, decision of 08.02.2023 – L 8 SO 69/22 B ER
Exclusion of the social welfare provider's obligation to provide medical personnel during a child's stay in a daycare center requiring treatment
Guiding principle
1. According to Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book V (SGB V), medical rehabilitation services must be necessary to, among other things, prevent or eliminate a disability or the need for care. This corresponds to the provisions in Section 42 of the German Social Code, Book IX (SGB IX). (Paragraph 38)
2. The supervision required to protect children in a daycare center is not considered regular care by medical professionals. Nor is it covered by a doctor's prescription for home nursing care in the form of treatment or intensive care. (Paragraph 39)
Source: www.landesrecht.sachsen-anhalt.de
3.3 – LSG NRW, Judgment of 16.02.2023 – L 9 SO 387/21 – Appeal pending before the BSG – B 8 SO 4/23 R
Reimbursement of expenses for contributions to an adequate old-age pension for a caregiver
Pension contributions for the caregiver of the social assistance recipient are to be paid by the social welfare office (guideline editor of Tacheles e. V.)
Guidance note by the editor of Tacheles e. V.:
Persons not insured under the social long-term care insurance scheme who receive care allowance from the social welfare provider are additionally entitled to reimbursement of the expenses for their caregiver's contributions to their appropriate old-age security.
Source: www.socialgerichtsabilities.de
4. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
4.1 – LSG Lower Saxony-Bremen, decision of 14.08.2023 – L 2 SF 6/23 B (R)
Unexcused failure to appear after duly summoned witnesses – fines and detention as a consequence
more at RA Kotz
4.2 – BSG: Roof repair for owner-occupied residential property as a housing benefit?
Editorial team eGovPraxis Jobcenter:
Are expenses for roof repairs on owner-occupied residential property considered accommodation costs according to § 22 para. 2 sentence 1 SGB II? The Federal Social Court (BSG) had to address this question.
Conclusion:
An inappropriate living space in owner-occupied residential property is not a reason to prevent the assumption of costs for the maintenance of the property.
More information: www.wolterskluwer.com
4.3 – The German Social Court Conference (DSGT) has issued a statement on the planned basic child allowance:
Further information: www.sozialgerichtstag.de
4.4 – Tacheles' statement on child basic income
Tacheles has submitted a comprehensive statement in the legislative process regarding the basic child allowance.
The summary: www.tacheles-sozialhilfe.de
4.5 – Right to barrier-free administrative procedures – a contribution by Prof. Dr. Hermann Plagemann
According to the Hamburg Social Court, blind and visually impaired people have a right to receive the relevant documents, i.e., applications, information sheets, administrative acts and appeal decisions, electronically from the job center, and, with the corresponding consent of the person concerned, also by unencrypted email.
Note: Tacheles published case law ticker week 34/2023
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Saxony-Anhalt, Decision of 28.08.2023 – L 8 AY 6/22
Guiding Principles:
The adjustment of benefits under the Asylum Seekers' Benefits Act (AsylbLG) as of January 1, 2017, which was rejected by the Federal Council, must be respected by the specialized courts within the framework of the constitutional guarantees for the federal order. Furthermore, a fall below the subsistence level is not to be assumed with regard to the amounts that continue to apply beyond January 1, 2017, until the new regulations come into effect on September 1, 2019.
Source: www.socialgerichtsabilities.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
