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 09/20/2023 – B 8 SUN 19/22 R
Regarding the appropriateness of a funeral expenses insurance policy as a prerequisite for deducting the contributions payable for this policy from the income of the beneficiary in accordance with Section 82 Paragraph 2 Sentence 1 Number 3 of the German Social Code, Book XII (SGB XII)
Social assistance – Basic income support for the elderly and those with reduced earning capacity – Pension due to full incapacity for work – Funeral expense insurance – Conclusion of a policy during benefit receipt – Adequacy
Guiding principle of the editor of Tacheles e. V.:
1. Contributions to a funeral insurance policy yet to be concluded are only deductible from income if there are justifiable reasons, such as the individual health situation; however, the mere fact that permanent total incapacity for work has been established is not sufficient for this purpose.
2. In such a case, it is necessary that the beneficiary suffers from a serious illness which, due to the associated risk of reduced survival in the specific case, gives cause to make provisions for securing funeral costs (principle of the editor of Tacheles e.V.)
Guidance note by the editor of Tacheles e. V.
1. For the question of whether insurance is taken into account in accordance with Section 82 Paragraph 2 Sentence 1 Number 3 of the German Social Code, Book XII (SGB XII), it is irrelevant whether this insurance was taken out before the receipt of benefits or only during the current receipt of benefits.
2. Although funeral expense insurance policies are privileged compared to other private (capital-forming) insurance policies (compare today's decision of the Senate under file number B 8 SO 22/22 R), in order to assess the required appropriateness of funeral expense insurance policies concluded after the commencement of benefits, it must be examined whether there is a comprehensible reason in the individual life situation of the beneficiary.
Source: www.bsg.bund.de
1.2 – BSG, judgment of 09/27/2023 – B 7 AS 10/22 R
Basic income support for job seekers – objection procedure – information on legal remedies – electronic form – lack of access – one-year deadline
A benefit provider must inform the recipient in the legal remedies information about the possibility of submitting an objection in electronic form pursuant to Section 36a Paragraph 2 of the German Social Code, Book I (SGB I).
Guiding principle of the editor of Tacheles e. V.:
1. Job centers must inform people about the possibility of submitting an objection electronically.
2. A notice of appeal which, contrary to the wording of Section 84 Paragraph 1 Sentence 1 of the Social Court Act (SGG) in the version valid since January 1, 2018, does not refer to the possibility of submitting the objection electronically, is incorrect within the meaning of Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG).
Guidance note by the editor of Tacheles e. V.:
A notice of legal remedies issued after January 1, 2018, is incorrect if it does not contain any information about the possibility of lodging an objection electronically, even if the authority had not actually opened access to electronic legal transactions at the time of issuing the decision and was not included in the address directory of the electronic court and administrative mailbox (EGVP).
Source: www.bsg.bund.de
Worth reading: The legal remedies information provided by job centers after January 1, 2018 – by attorney Kay Füßlein, Berlin
Further information: www.ra-fuesslein.de
and here: Once again, the electronic accessibility of the Job Centers
More information: www.ra-fuesslein.de
1.3 – BSG, judgment of 09/27/2023 – B 7 AS 13/22 R
Basic income support for job seekers – temporary household – additional hardship allowance – lump sum payment
Regarding the entitlement to additional needs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), due to needs arising from the regularly changing residence of a minor child of separated parents as a result of belonging to two benefit units.
The Federal Social Court (BSG) strengthens the entitlement to citizen's allowance for children of separated parents
Guiding principle of the editor of Tacheles e. V.:
1. If only the parent who primarily cares for the children receives citizen's income, the social assistance for the children must be paid to that parent in full. This also applies if the children spend several days a week with the other parent.
2. However, it is possible to credit the visitation days to the other parent if they also receive benefits from the job center.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Hamburg, judgment of June 8, 2023 – L 4 AS 384/21
Denial of basic income support benefits due to the applicant's lack of cooperation
Principle
1. An applicant must be denied basic income support benefits under Section 7 of the German Social Code, Book II (SGB II), if he fails to submit the documents required by the benefit provider to prove his need for assistance within the meaning of Section 9 of the SGB II. (Paragraph 6)
2. This requires prior notification of the legal consequences by the benefit provider. If the provider then fails to comply with its obligations to cooperate under Sections 60 et seq. of the German Social Code, Book I (SGB I), this will result in the denial of the requested basic income support benefits. (Paragraph 14)
Source: www.landesrecht-hamburg.de
2.2 – LSG Hamburg, judgment of June 8, 2023 – L 4 AS 22/20
Final decision by the basic income support provider after clarification of the beneficiary's need following preliminary benefit approval
Guiding principle:
If, upon provisional approval of basic income support benefits, it becomes apparent to the benefit provider that the recipient can cover their needs in whole or in part, the provider may not limit itself to a mere amendment of the provisional ruling. Rather, pursuant to Section 328 of the German Social Code, Book III (SGB III) in conjunction with Section 40, Paragraph 1, Sentence 2, No. 1a of the German Social Code, Book II (SGB II) (old version), the provider must make a final decision on the disputed benefit claim. (Paragraph 27)
Source: www.landesrecht-hamburg.de
2.3 – LSG Hamburg, judgment of June 30, 2023 – L 4 AS 232/22 D
Proof of a legally valid application for basic income support benefits
Guiding principle
1. According to Section 37 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), basic income support benefits are provided upon application. Pursuant to Paragraph 2 Sentences 1 and 2 of this provision, benefits are not provided for periods prior to the application. The application requirement also applies in cases of continued benefit payments. The applicant bears the burden of proof regarding the date of application. (Paragraph 20)
2. If an application cannot be established even with witness testimony, this is to the detriment of the person claiming entitlement to basic income support benefits. (Paragraph 28)
Source: www.landesrecht-hamburg.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Baden-Württemberg, judgment of July 21, 2023 – L 8 AL 2142/22
Failure to comply with a demonstrably issued information sheet from the Federal Employment Agency concerning a specific benefit provision generally constitutes gross negligence if it is written in such a way that the beneficiary has recognized its content or could easily have recognized it.
Gross negligence in failing to comply with the notification obligation can lead to the repayment and cancellation of unemployment benefit I (ALG 1) for unemployed individuals, in this case, work with regularly 15 or more hours per week (principle of the editor of Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.
1. The violation of notification obligations due to ignorance of the obligations is then caused by one's own gross negligence if the recipient of a demonstrably handed-over information sheet, here the information sheet 1 for the unemployed, could have recognized, based on the simplest and most obvious considerations, that he has a notification obligation or that the granted entitlement does not exist or at least does not exist in that form (exceeding the 15-hour limit for the entitlement to unemployment benefits, which in any case presupposes unemployment).
2. If a recipient of unemployment benefits nevertheless considers this matter and mistakenly assumes that they are not subject to any reporting obligation, such a legal error is to their detriment and does not negate the charge of fault (see Higher Social Court of Saxony-Anhalt, judgment of February 15, 2019 – L 4 AS 165/12). A different conclusion would only be reached if the legal error was unavoidable. However, this cannot be established in the present case.
Source: www.socialgerichtsabilities.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Regensburg, Judgment of 25 April 2022 – S 6 SO 81/20
Title:
Integration assistance benefits, integration assistance benefit, operating cost allowance, notice of objection, further operating costs, coverage of operating costs, motor vehicle liability insurance, repetitive ruling, dismissal of action, second ruling, combined action for annulment and performance, declarations of intent, motor vehicle assistance, heating cost allowance, cost decision, operation of the motor vehicle, motor vehicle tax, extrajudicial costs, disability pension, logbook
Guiding principle:
The operating costs of a vehicle to be covered by the assistance provider within the framework of vehicle assistance are limited to the necessary and reasonable costs for its operation. The reasonableness of the costs is determined by the purpose of integration assistance and the protection against social exclusion. The standard of living is based on the lifestyles shared by the population living in modest circumstances.
Source: www.gesetze-bayern.de
4.2 – SG Detmold, Judgment of 13.09.2023 – S 35 SO 27/23
Court order | Social assistance – Basic income support for the elderly and those with reduced earning capacity – Basic income support in special forms of housing – Cancellation and reimbursement of basic income support benefits – Initial and subsequent illegality – Applicability of the transitional provisions due to the COVID-19 pandemic | Sections 45, 48 of the German Social Code, Book X (SGB X), Section 90 Paragraph 2 No. 9 of the German Social Code, Book XII (SGB XII), Section 141 Paragraph 1, Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII)
The special Corona regulation of § 141 para. 2 SGB XII applies only for a period of six months (principle of editor v. Tacheles e. V., a. A. On SGB 2: LSG NRW, 11.02.2022 – L 21 AS 66/22 B ER).
Guiding principles www.sozialgerichtsbarkeit.de
Section 141, paragraphs 1 and 2 of the German Social Code, Book XII (SGB XII) do not apply if the disputed benefit award was preceded by a six-month benefit period that falls within the scope of the provision. Any interpretation beyond this goes beyond the limits of the wording and constitutes an inadmissible interpretation contra legem.
Source: socialcourtsability.de
Note:
a. Regarding the interpretation of Section 67 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II): Higher Social Court of North Rhine-Westphalia (LSG NRW), February 11, 2022 – L 21 AS 66/22 B ER – concerning the non-consideration of real estate assets; Social Court of Nordhausen (SG Nordhausen), judgment of March 22, 2023 – S 13 AS 1534/21 – the six-month time limit for the deemed appropriateness of actual expenses for accommodation and heating in Section 67 Paragraph 3 Sentence 1 of the SGB II does not expire within the period of validity defined by Section 67 Paragraphs 1 and 5 of the SGB II in conjunction with Section 1 of the Ordinance on the Allocation of Rent (VZVV 2022); same opinion as above: Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of... June 28, 2022 – L 9 SO 140/22 B ER – The special Corona regulation of Section 141 Paragraph 2 of the German Social Code, Book XII (SGB XII) applies only for a period of six months. Once this period has expired, the extended asset protection no longer applies; most recently published decision: Baden-Württemberg Higher Social Court, judgment of June 14, 2023, L 2 SO 2864/21 – Regarding the question of when the six-month period under Section 141 of the German Social Code, Book XII (SGB XII) must be taken into account.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
