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 July 13, 2023 – B 8 SUN 11/22 R
Social assistance – Emergency aid – Reimbursement claim of a hospital operator – Entitlement of the person in need to medical care if the social assistance provider is aware of the case – Exclusion of benefits for foreigners without a right of residence – Bridging benefits – Treatment of acute illnesses – Willingness to leave the country
BSG: More protection for foreigners without health insurance
Guidance note by the editor of Tacheles e. V.
1. A claim for emergency assistance under Section 25 of the German Social Code, Book XII (SGB XII) also exists if the person in need of assistance, had the social welfare provider been aware of the case, would at most have been entitled to bridging benefits under Section 23 Paragraph 3 Sentence 5 Number 3 of the German Social Code, Book XII (SGB XII).
2. Bridging benefits must be provided even if the person does not express a “willingness to leave” or a “willingness to leave”.
Source: www.socialgerichtsabilities.de
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of 08/24/2023 – L 37 SF 257/21 EK AS
Guiding principles
§§ 198 ff. GVG as amended by the Act on Legal Protection in Cases of Excessively Long Court Proceedings and Criminal Investigations (GRüGV)
A procedure to obtain a decision on costs pursuant to Section 193 of the Social Courts Act (SGG) constitutes an independent court proceeding within the meaning of Section 198 Paragraph 6 No. 1 of the Courts Constitution Act (GVG).
For the assessment of the essential significance of the proceedings pursuant to Section 198 Paragraph 1 Sentence 2 of the Courts Constitution Act (GVG), only an objective consideration is decisive (following BSG, Judgment of 07.09.2017 – B 10 ÜG 1/16 R – juris, Rn. 35).
Proceedings to obtain a cost decision cannot generally be considered more significant than the preceding legal proceedings. If a plaintiff—who has no income or assets—decides to pursue litigation over trivial amounts with the assistance of a lawyer, he cannot claim that the subsequent cost decision proceedings were of great importance to him in light of the potential legal fees. Since he has essentially provoked the risk of incurring costs many times greater than the amount ultimately sought in the lawsuit, his interests are not worthy of protection in this respect.
In proceedings where ancillary decisions concerning or preparatory to cost issues are to be made, a clear distinction must be made between the interests of the parties and those of their lawyers (following BSG, judgment of 12.12.2019 – B 10 ÜG 3/19 R – juris, para. 41, 43).
If, from the perspective of a reasonable third party, a procedure for obtaining a decision on costs has no significance worthy of protection for a plaintiff, in the case of an unreasonable length of this procedure, redress in another way pursuant to Section 198 Paragraph 2 Sentence 2, Paragraph 4 of the Courts Constitution Act (GVG) is regularly sufficient.
Source: www.socialgerichtsabilities.de
2.2 – LSG Berlin-Brandenburg, judgment of 08/24/2023 – L 37 SF 196/20 EK AS
Guiding principles
1. In proceedings on the appeal against the refusal of leave to appeal, the Higher Social Court is entitled to a preparation and deliberation period of generally six months (continuation of the case law of the Senate of 25.02.2016 – L 37 SF 128/14 EK AL – juris Rn. 59).
2. There is no cross-instance consumption of preparation and deliberation time (here in the form of the Social Court's consumption of the preparation and deliberation time allocated to the State Social Court).
For the initial pre-litigation assertion of a claim for compensation due to the excessive length of court proceedings against the liable state, the use of legal assistance is generally not necessary, and the expenses incurred by the nevertheless engagement of a lawyer are accordingly not considered necessary legal costs (continuation of the Senate's case law of 09.06.2021 – L 37 SF 271/19 EK AS – juris Rn. 61 ff.).
Source: www.socialgerichtsabilities.de
2.3 – LSG NRW, Decision of 19.10.2023 – L 6 AS 873/23 B ER
Guidance by the editor of Tacheles e. V.
The lawful residence pursuant to Section 81 Paragraph 3 Sentence 1 of the Residence Act (AufenthG) should be classified as a right of residence within the meaning of Section 7 Paragraph 1 Sentence 2 No. 2 lit. a of the German Social Code, Book II (SGB II) (similarly, Higher Social Court of North Rhine-Westphalia (LSG NRW), judgment of April 6, 2022, L 12 AS 1323/19; contra: Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of September 29, 2023, L 2 AS 897/23 B ER).
Source: www.socialgerichtsabilities.de
2.4 – LSG Berlin-Brandenburg, Judgment of 27 July 2023 – L 10 AS 311/19 – pending before the Federal Social Court (BSG), no date available, B 7 AS 13/23 R
Basic income support for job seekers – Exclusion of benefits for foreigners without a substantive right of residence or who are resident for the purpose of seeking employment – Social assistance – Bridging benefits – Scope – Other benefits for a longer period – Existence of special hardship
Guiding principle
1. The concept of "particular hardship" in Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII) makes it clear that only truly exceptional individual situations, such as serious, permanent illnesses that render travel impossible, can justify the granting of benefits. (Paragraph 68)
2. To the extent that it is argued that the hardship provision of Section 23 Paragraph 3 Sentence 6 Half-Sentence 2 of the German Social Code, Book XII (SGB XII) must be interpreted for constitutional reasons to mean that mere residence in Germany constitutes a hardship case, or that the conditions for the hardship provisions are already met if the EU citizen concerned can invoke the presumption of a right of free movement and the immigration authorities have not taken measures to terminate their residence, i.e., their residence is effectively tolerated, the Senate does not agree. (Paragraph 70)
Source: gesetze.berlin.de
Note:
a. A. LSG Berlin-Brandenburg, judgment of 11 July 2019 – L 15 SO 181/18 – appeal pending BSG- B 8 SO 7/19 R – according to which the conditions of the hardship provisions are already met if the Union citizen concerned can claim the presumption of a right of free movement and the immigration authority has not taken measures to terminate his residence, i.e. his residence is effectively tolerated.
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 1561/22
Regarding the constitutionality of the standard rates according to § 20 SGB II in the years 2020, 2021 and 2022, here constitutional (Editor Tacheles e. V.)
Guiding principles:
The level of the standard needs of levels 2, 5 and 6, in conjunction with further financial relief measures by the legislator in the years 2020, 2021 and 2022, still meets the constitutional requirements for determining their level.
Source: www.socialgerichtsabilities.de
Note:
See, in this regard, Social Court Freiburg, judgment of 26 May 2023 – S 7 AS 1845/22; contra, referral decision of Social Court Karlsruhe of 6 June 2023 in proceedings S 12 AS 2208/22 – on the unconstitutionality of the subsistence guarantee in 2021 and 2022 (Tacheles Case Law Ticker Week 46/2023)
3.2 – SG Freiburg, judgment of May 13, 2023 – S 7 AS 2121/21
Basic income support for jobseekers – final decision after provisional approval – reimbursement of overpaid benefits – transitional provision of Section 67 Paragraph 4 of the German Social Code, Book II (SGB II) – final decision only upon application by the beneficiary – applicability of the provision despite the issuance of the approval notice before its entry into force and also to existing cases – revocation pursuant to Section 45 of the German Social Code, Book X (SGB X) – initial illegality – accurate prognosis at the time the notice was issued – revocation pursuant to Section 48 of the German Social Code, Book X (SGB X) – generation of income after the notice was issued – change in the same factual circumstances that justified the provisional nature of the decision – revocation decision after the expiry of the approval period
Guiding Principles
1. For benefit periods for basic income support for jobseekers (unemployment benefit II or social assistance) that began on or after March 1, 2020, Section 67, paragraphs 1 and 4 of the German Social Code, Book II (SGB II) stipulate that, in the case of provisional benefit approval under Section 41a SGB II, a final decision on the monthly benefit entitlement will only be made upon application by the benefit recipient, deviating from Section 41a, paragraph 3 of the SGB II. Benefit recipients therefore have the option of either accepting the provisional benefit approval or applying for a final approval.
2. This regulation shall also apply if the grant notice was issued before the entry into force of the Act on Easier Access to Social Security and the Deployment and Safeguarding of Social Service Providers due to the Coronavirus SARS-CoV-2 (Social Protection Package) of 27 March 2020, insofar as it relates to benefit periods from 1 March 2020 onwards.
3. This regulation applies both to benefit receipt under the German Social Code, Book II (SGB II) that began before March 1, 2020, and to "new cases".
4. The initial illegality of the decision within the meaning of Section 45 of the German Social Code, Book X (SGB X) is an unwritten element of the provision. However, in the case of predictive decisions, the determination of initial illegality within the meaning of Section 45 SGB X does not depend on the subsequently revealed factual situation, but solely on whether the prediction itself was accurate at the time the decision was issued.
5. Whether such a forecast – like the forecast of expected income to be made pursuant to Section 41a of the German Social Code, Book II (SGB II) – is correct or at least justifiable can be assessed by referring to the case groups of Section 45 Paragraph 2 Sentence 3 No. 1 – No. 3 of the German Social Code, Book X (SGB X).
6. Section 48 of the German Social Code, Book X (SGB X) – under the provisions of Section 67, Paragraph 4 of the German Social Code, Book II (SGB II) – cannot be used for a subsequent correction of a provisional benefit award pursuant to Section 41a of the SGB II if a change has occurred in the same factual circumstances that already triggered the provisional nature of the benefit award (here: projected future earned income from self-employment), provided that the revocation decision is made only after the end of the benefit period. Otherwise, the benefit recipient's right of choice under Section 67, Paragraphs 1 and 4 of the SGB II would be circumvented.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Baden-Württemberg, judgment of September 13, 2023 – L 8 AL 3484/21
Guidelines
for determining the responsible service provider when granting motor vehicle assistance as integration assistance for carrying out a practice-integrated dual study program.
Source: www.socialgerichtsabilities.de
5. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
5.1 – LSG: Higher accommodation costs due to a lack of data collection on accessible housing? LSG Baden-Württemberg, Judgment of 14 June 2023 – L 2 SO 2864/21
Editorial team eGovPraxis Social Welfare:
People with (mobility) disabilities need accessible housing to lead independent lives. The Baden-Württemberg State Social Court (LSG) had to address the question of whether, and in which cases, a social welfare agency must cover higher housing costs for this purpose.
Conclusion:
If the social welfare agency does not collect any data on the availability and price of accessible housing, this may, in individual cases, lead to the actual costs of accommodation and heating still having to be covered for the person in need who is dependent on such housing.
Insofar as the expenses for accommodation and heating exceed the amount appropriate to the particular circumstances of the individual case, they shall be recognized as a need for as long as it is not possible or reasonable for the single person entitled to benefits or the household to reduce the expenses by changing residence, by renting out or in any other way, but generally for no longer than six months.
The determination of the abstractly reasonable expenses must be carried out using product theory in a multi-stage process.
Within the framework of specific appropriateness, personal circumstances (e.g. illness, disability, need for care) are taken into account in the respective rent-setting factors (e.g. living space requirement, comparison area, housing standard, reference group).
Source: www.wolterskluwer.com
Note:
published in the Tacheles case law ticker, week 36/2023
5.2 – Newsletter from Attorney Volker Gerloff – 14 – 2023
1. Bavarian State Social Court abandons dogma “Once an abuse of rights – always an abuse of rights”
on
A welcome decision by the Bavarian State Social Court (BayLSG) regarding the abuse of rights, which is intended to exclude access to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG): Decision of October 25, 2023 – L 8 AY 29/23 B ER.
More information: www.ra-gerloff.de
5.3 – Newsletter from Attorney Volker Gerloff – 15 – 2023 –
1. APPEAL: Human dignity applies to everyone – including refugees! Against stricter social welfare laws and for the abolition of the Asylum Seekers' Benefits Act
More information: www.ra-gerloff.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
