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 4/22 R
Basic income support for job seekers – Exclusion of benefits for foreigners without a right of residence or residing for the purpose of seeking employment – EU citizens – Right of residence as a family member – Maintenance payments by parents before the date of entry – Economic dependency – Social assistance for foreigners – Bridging benefits – Social court proceedings – Conviction of the joined social assistance provider – Inadmissible action – Lack of a prior administrative decision – New application for benefits – Breaking effect – Period
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.rechtrecht-im-internet.de
1.2 – BSG, judgment of May 17, 2023 – B 8 SO 6/22 R
Integration assistance – Social Service Provider Deployment Act – Corona pandemic – Subsidy – Calculation
Note: See also: Iffland Wischnewski secures significantly expanded Corona aid for social service providers – success before the Federal Social Court
Full text: www.sozialgerichtsbarkeit.de
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Saxony-Anhalt, decision of 21.09.2023 – L 4 AS 194/23 B
Guiding Principles:
When calculating the value of the appeal pursuant to Section 172 Paragraph 3 Number 2 in conjunction with Section 144 Paragraph 1 Sentence 1 of the Social Court Procedure Act (SGG), the amount of the requested cash benefit as a social benefit under Section 19a of the Social Code, Book I (SGB I), is decisive if the dispute concerns benefits to secure subsistence under Book II of the German Social Code (SGB II). The contributions to statutory health insurance to be paid by the basic income support provider in the event of an approval of SGB II benefits are not to be included in the calculation of the value of the appeal. The social security of recipients of unemployment benefit II (Alg II) is an ancillary benefit to the benefit to secure subsistence and is not part of the (payable) SGB II benefits.
Source: www.socialgerichtsabilities.de
2.2 – LSG NRW, judgment of June 14, 2023 – L 12 AS 245/21
Basic income support for job seekers – Exclusion from benefits – Right of residence – Job search – EU citizens – Registration with the registration authority
Editorial note by Tacheles e. V.:
A five-year habitual residence in Germany within the meaning of Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) does not necessarily require continuous registration with a registration authority for the entire period. According to Section 7 Paragraph 1 Sentence 5 of the SGB II, registration is merely a prerequisite for the commencement of the five-year period (see Higher Social Court of North Rhine-Westphalia, decision of December 8, 2021, L 12 AS 1644/21 B ER).
Source: www.socialgerichtsabilities.de
Note:
The Federal Social Court (BSG) has since issued a ruling on this legal question: BSG, Judgment of 20 September 2023 – B 4 AS 8/22 R
Does a permanent right of residence, which contradicts the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2 Letter b of the German Social Code, Book II (SGB II), require, pursuant to Section 7 Paragraph 1 Sentence 4 of the SGB II, continuous registration over a five-year period after initial registration with the registration authority?
BSG: No continuous reporting to authorities is necessary for citizen's income.
Worth reading:
Federal Social Court (BSG): Exclusion of benefits for EU citizens and requirements for habitual residence
Editorial team eGovPraxis Jobcenter
Conclusion:
For the calculation of the five-year period according to § 7 para. 1 sentence 4 SGB II, the following must be observed:
The five-year period begins on the day of the foreigner's initial registration pursuant to Section 7 Paragraph 1 Sentence 5 of the German Social Code, Book II (SGB II).
Registration with the registration office has constitutive effect for the commencement of the five-year period.
Only minor interruptions of residence in Germany (e.g., a brief visit to one's home country) are disregarded.
If there is no minor interruption, the period begins anew.
Entitlement to citizen's allowance does not require continuous registration throughout the five-year period; the decisive factor is habitual residence in Germany.
Source: www.wolterskluwer.com
2.3 – LSG NRW, Decision of 03.05.2023 – L 19 AS 417/23 B ER
Entitlement to benefits under the German Social Code, Book XII (SGB XII) by way of preliminary legal protection in social court proceedings; substantiation of a claim for an order to grant hardship benefits; requirements for substantiating an inability to travel due to illness
Further information: www.sozialgerichtsbarkeit.de
2.4 – LSG Hamburg, judgment of July 20, 2023 – L 4 AS 200/16
Determining the income of a self-employed person entitled to basic income support
Guiding principle
1. When determining the income of a self-employed person entitled to basic income support, their business income must be the starting point. (Paragraph 37)
2. Eligible operating expenses include, among other things, personnel costs, business-related travel expenses, reasonable investment costs, interest, and input tax paid. (Paragraph 38)
Source: www.landesrecht-hamburg.de
Editor's note:
1. Multiple crediting of the basic tax allowance in the case of a one-off payment (here parental allowance) is lawful, cf. Federal Social Court (BSG), judgment of 17 July 2014 – B 14 AS 25/13 R
2. Multiple crediting of the insurance allowance is also lawful (see BSG, judgment of 17 July 2014 – B 14 AS 25/13 R; LSG Berlin-Bgb, judgment of 17 September 2015 – L 31 AS 1571/15; LSG BW, judgment of 29 January 2015 – L 7 AS 4641/12; Löcher, note on BSG of 17 July 2014, in SGb 2015, pp. 690 ff., 695; contra LSG Nds/Bremen, judgment of 8 September 2020 – L 7 AS 354/19)
3. Decisions of the social courts on basic income support under the German Social Code, Book II (SGB II)
3.1 – SG Freiburg, judgment of May 26, 2023 – S 7 AS 1845/22
Guiding Principles:
The level of the standard rates for unemployment benefit II in 2022 (here: standard rate level 2), in conjunction with other financial relief measures implemented by the legislature in 2022, still meets the constitutional requirements for determining its level. A different assessment is not warranted simply because there was a significant increase in consumer prices in 2022 compared to previous years.
Source: www.socialgerichtsabilities.de
Note:
a. A. Referral decision of the Social Court Karlsruhe of 06.06.2023 in proceedings S 12 AS 2208/22 on the unconstitutionality of the subsistence guarantee in 2021 + 2022 (Tacheles case law ticker week 37/2023)
3.2 – SG Landshut, judgment of October 27, 2023 – S 11 AS 62/22
The rejection of higher benefits or a limitation to one month means that all further amendment or rejection notices relating to the current benefit period will be subject to legal proceedings pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG).
Source: www.socialgerichtsabilities.de/
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Hamburg, judgment of July 26, 2023 – L 2 AL 12/22
Unemployment benefit entitlement – assessment of unemployment – “familiarization period” – longer-term internship – sales acquisition
Guiding principle:
When assessing unemployment within the meaning of Section 138 Paragraph 1 Number 1 of the German Social Code, Book III (SGB III), it is irrelevant whether a legally non-binding "familiarization period" existed, because someone is not considered unemployed if they are in a de facto employment relationship or even without an existing employment relationship and they are using their mental or physical abilities in the working world with the aim of providing a service or achieving a work result. (Paragraph 19)
Source: www.landesrecht-hamburg.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – SG Freiburg, judgment of June 23, 2023 – S 7 SO 4318/20
Limits of cooperation pursuant to Section 65 of the German Social Code, Book I (SGB I) for the granting of a one-off social assistance benefit amounting to a few hundred euros (here: funeral costs pursuant to Section 74 of the German Social Code, Book XII (SGB XII))
Social assistance: The limit of what is reasonable in terms of the applicant's duty to cooperate is exceeded if, for the granting of a one-off social assistance benefit of a few hundred euros (here: funeral expenses pursuant to Section 74 of the German Social Code, Book XII), an act of cooperation is required that would cost the person concerned one-third of the social assistance benefit (Orientation guide by the editor of Tacheles e. V.)
Guiding Principles
1. By analogy with Section 65 Paragraph 1 No. 2 of the German Social Code, Book I (SGB I), the obligations to cooperate under Sections 60-64 of the SGB I do not apply if their fulfillment is factually or legally impossible for the person concerned (here: commissioning an appraisal of a car that is not in the possession of the person concerned and to which the person concerned also has no right of possession).
2. By analogy with Section 65 Paragraph 1 No. 3 of the German Social Code, Book I (SGB I), the obligations to cooperate under Sections 60-64 of the SGB I do not only not apply if the benefit provider can obtain the necessary information itself with less effort, but also – by way of a fortiori argument – if the benefit provider already has the necessary information because all the decisive facts are already on record.
3. Whether the fulfillment of the cooperation obligations under Sections 60 – 64 of the German Social Code, Book I (SGB I) is proportionate to the social benefit claimed within the meaning of Section 65 Paragraph 1 No. 1 of the German Social Code, Book I (SGB I), is, as an indeterminate legal concept, fully subject to judicial review.
4. Whether there is a reasonable relationship between the social benefit received and the costs incurred by fulfilling the duty to cooperate cannot be determined by universally applicable mathematical (e.g., percentage) limits or formulas. In particular, for ongoing benefits or benefits of a substantial absolute amount, a higher financial contribution from the recipient during the fact-finding process may be expected than for small, one-off benefits. The limit of reasonableness within the meaning of Section 65 Paragraph 1 No. 1 of the German Social Code, Book I (SGB I) is exceeded if, for the granting of a one-off social assistance benefit of a few hundred euros (here: funeral expenses pursuant to Section 74 of the German Social Code, Book XII (SGB XII)), an act of cooperation is required that would cost the recipient one-third of the social assistance benefit.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Social Court Magdeburg – Decision of 09.10.2023 – File No.: S 31 AY 62/23 ER
Legal norms: Section 3 AsylbLG, Section 3a AsylbLG, Section 86b Paragraph 2 Sentence 2 SGG – Keywords: Standard benefit level 1, benefits according to Sections 3, 3a AsylbLG, Magdeburg Social Court
Continued with attorney Sven Adam
Guidance note by the editor of Tacheles e. V.
on the granting of benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1.
7. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Parity expert report shows: Not even one in five children receiving citizen's income benefits from participation benefits
More information: www.der-paritaetische.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
