1. Decisions of the state social courts on citizen's income (SGB II)
1.1 – LSG NRW, judgment of April 27, 2023 – L 7 AS 1606/22
Regarding the crediting of an inheritance (old legal situation) in the event of an interruption of benefit receipt for at least one month due to taking up employment as a geriatric nurse.
Guiding principle of the editor of Tacheles e. V.:
1. The application for ALG II (unemployment benefit II) was made before the inheritance, so the inheritance constituted income.
2. However, at the time the inheritance was credited to the account, it constituted assets. This is because the entitlement to benefits ended for at least one calendar month between the date of death and the receipt of readily available funds from the inheritance, due to the cessation of the need for assistance.
Source: www.socialgerichtsabilities.de
Let's be clear:
From July 2023, an inheritance will no longer constitute income. Consequently, it will remain completely exempt from being counted as income.
Sa also: Citizen's income: Inheritances will no longer be counted as income – by attorney Helge Hildebrandt, Kiel
More information: sozialberatung-kiel.de
1.2 – LSG NRW, decision of 25.05.2023 – L 2 AS 484/23 B
Guiding principle by the editor of Tacheles e. V.
1. Is the decision regarding the payment of monetary benefits for accommodation and heating costs to the landlord a regulation in the sense of an administrative act or merely an informational notification to the beneficiary?
2. This is certainly controversial. The wording of the law does indeed suggest a mere notification without regulatory character.
3. However, according to the prevailing opinion in case law and legal commentary, this was not merely a notification, but a decision by administrative act (see, for example, Krauß in Hauck/Noftz, Sozialgesetzbuch SGB II, as of Supplementary Delivery 1/21, § 22 Rn. 387, and Luik in Eicher/Luik/Harich, SGB II, 5th ed. 2021 § 22 Rn. 312, each with references to case law).
Source: www.socialgerichtsabilities.de
1.3 – LSG NRW, Decision of 05.05.2023 – L 21 AS 1427/22 B ER
Determination of loss – habitual residence – basic income support for job seekers – revocation – suspensive effect
The (non-enforceable) determination of loss of residence pursuant to Section 5 Paragraph 4 of the Freedom of Movement Act/EU does not eliminate the habitual residence (Tacheles e. V.).
Guidance note by the editor of Tacheles e. V.
1. The Senate is convinced that the determination of the loss of freedom of movement does not eliminate the habitual residence pursuant to Section 7 Paragraph 1 Sentence 1 No. 4 of the German Social Code, Book II (SGB II), if – as in this case – there is no immediate enforcement; the effects on the right of residence pursuant to Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) are disputed.
2. The effects of a (non-enforceable) determination of loss of rights pursuant to Section 5 Paragraph 4 of the Freedom of Movement Act/EU on the right of residence within the meaning of Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) are disputed and have not yet been decided by the highest court; the elimination of the corresponding requirement of Section 7 Paragraph 1 Sentence 2 of the SGB II does not appear to be mandatory (however, see the Schleswig-Holstein Higher Social Court ruling of July 8, 2021 – L 6 AS 92/21 B ER).
Source: www.socialgerichtsabilities.de
1.4 – LSG Bayern, decision of 06.11.2023 – L 7 AS 297/23 NZB
Guiding Principles
: Based on the case law of the Federal Social Court (BSG), the question of whether there is an obligation to conduct exactly the same hearing again in the event of a change in the legal basis, if this hearing has already taken place on all relevant aspects, can be answered without further ado, so that no admission on grounds of fundamental importance is warranted.
Source: www.socialgerichtsabilities.de
1.5 – LSG Lower Saxony-Bremen, decision of 13 October 2023 – L 13 AS 185/23 B ER Jobcenter must cover higher rent in the case of scarce housing due to family circumstances (Tacheles e. V.)
Guiding principles
1. For reasons of the effectiveness of legal protection, it is permissible under strict conditions to require the responsible agency to issue a final assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), already in the preliminary legal protection proceedings.
2. If there are relevant special circumstances of the individual case, actual expenses exceeding the abstract measure may be appropriate within the framework of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and may expand the available appropriate living space in the event of a change of residence.
Source: www.socialgerichtsabilities.de
Note: Tacheles:
cf. LSG Berlin-Brandenburg, decision of 28.09.2023 – L 9 AS 916/23B ER –
Regarding the provisional order for the issuance of an assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) for a specifically proven, not yet rented, but still available new accommodation, taking into account the legal protection guarantee of Article 19 Paragraph 4 of the German Basic Law (GG) in the case of subsistence-securing benefits, if, according to the landlord, the rental of the specific accommodation is only possible with an assurance (Editor of Tacheles e. V.).
1.6 – LSG Berlin-Brandenburg, decision of 01.11.2023 – L 15 AS 870/23 B ER
Entitlement to citizen's allowance for the father: In the case of shared custody, the adult child has two households (Tacheles e. V.).
Citizen's income:
1. An adult child under 25 years of age who lives half the time with each of their parents belongs to both households (Editor of Tacheles e. V.)
2. The job center must provide the adult child with pro rata basic income support for job seekers for the period of their stay with the parent entitled to benefits (Tacheles e. V.).
Guiding Principles
1. Regardless of the institution of the temporary household, in case of need, an entitlement to benefits exists in the household for half the period of residence if adults under 25 years of age lived in a temporary household with a parent and a minor sibling before reaching the age of majority, if, due to the shared custody arrangement, the determination of a primary residence with the father or mother is not possible, and the adult decides to continue living with the parents in a shared custody arrangement.
2. In such cases, the claim of the person who has reached the age of majority does not constitute a benefit for exercising the right of access, but rather a benefit for securing their own livelihood.
Tacheles note:
According to established case law, the application of the institution of the temporary community of need is limited to the period until the person reaches the age of majority (as expressly stated by the Federal Social Court, judgment of January 27, 2021 – B 14 AS 35/19 R).
2. Decisions of the social courts on citizen's allowance under the German Social Code, Book II (SGB II)
2.1 – SG Berlin, Judgment of 11.09.2023 – S 43 AS 5054/19 – pending before the LSG BB – L 18 AS 1078/23
Statute of limitations; surety loan; suspension; claim for repayment of loan; assignment
Guiding Principles:
If a loan (here: a security deposit loan) is granted not only contractually but also by official notice, the latter constitutes a notice for the determination of the loan repayment claim of the lending job center within the meaning of Section 52 Paragraph 1 SGB X with the consequence of Section 52 Paragraph 2 SGB X (limitation period of 30 years from the date of finality).
Source: www.socialgerichtsabilities.de
Note Tacheles:
cf. LSG Hessen, decision of 14.11.2023 – L 6 AS 339/23 B ER – Claims for repayment of loans under § 42a SGB II are subject to a limitation period of 30 years.
2.2 – SG Munich, judgment of June 29, 2023 – S 13 AS 1664/20
Guiding principles
1. The fact that a hearing notice is addressed to the no longer appointed guardian is irrelevant if the hearing notice becomes known to the benefit recipient in some other way.
2. The protection of legitimate expectations is excluded under Section 45 Paragraph 2 Sentence 3 No. 2 and No. 3 of the German Social Code, Book X (SGB X), if the benefit recipient has consistently and intentionally provided incorrect information regarding the amount of his wife's earned income and false information regarding the commencement of his employment.
3. According to Section 1629a Paragraph 1 Sentence 1 Clause 1 of the German Civil Code (BGB), a child's liability for debts incurred by the parents in the course of their legal representation of the child is limited to the assets the child possesses upon reaching the age of majority. Upon reaching the age of majority, the child must notify the authority responsible for administrative enforcement proceedings and submit a statement of assets (e.g., a bank statement), invoking the defense of liability for minors, which must be considered ex officio.
Source: www.socialgerichtsabilities.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Saxony, Judgment of 13 October 2022 – L 3 AL 40/21
Guiding Principles
1. A start-up grant is not intended for economic development or the promotion of social structures in rural areas. It is also not intended to finance a liquidity shortfall. The start-up grant is intended for the active labor market promotion of the specific unemployed person.
2. The fact that the priority of mediation is included in the discretionary considerations is fundamentally unobjectionable, because it involves taking into account a legal requirement.
Source: www.socialgerichtsabilities.de
3.2 – LSG Saxony, Judgment of 25.05.2023 – L 3 AL 35/23
Guiding Principles
1. “Objectively modest” does not mean that an application must be granted, but rather that a decision is made on the merits, even if that is that the application is rejected as inadmissible (following BSG, Judgment of November 11, 2003 – B 2 U 36/02 R – SozR 4-1500 § 88 No. 1 = juris para. 15).
2. An official letter that merely refers to a previous decision does not constitute a decision on a review application.
3. For an action for failure to act, it is generally irrelevant whether the plaintiff has a claim on the merits or whether the requested decision has any substantive legal effect on him. Even if this is not the case, the plaintiff is generally free to demand a decision.
4. On the question of whether an exception to the right to a decision on an application should be permitted if the asserted claim cannot exist under any conceivable circumstances.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, Decision of 05.02.2023 – L 9 SO 7/23 B ER
Regarding the payment of basic income support under the German Social Code, Book XII (standard rate only), by way of preliminary legal protection within the framework of the balancing of consequences in the event of unlawful denial of basic income support
Guidance note by the editor of Tacheles e. V.
1. According to case law, a mental illness that prevents the person concerned from fulfilling their obligations to cooperate does not constitute an important reason within the meaning of Section 65 Paragraph 1 No. 2 of the German Social Code, Book I (LSG North Rhine-Westphalia, judgment of October 16, 2017 – L 20 SO 384/15).
2. However, the social welfare office should have taken the known mental illness into account when exercising its discretion under Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), which it did not do.
Source: www.socialgerichtsabilities.de
4.2 – Social Court Bremen, Judgment of February 7, 2023 – S 24 SO 24/21
Limits of the special regulation for basic income support benefits during the Covid-19 pandemic
The provision of Section 141 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) is not applicable to cases in which a move takes place during the period of receipt of social benefits for reasons that are completely independent of the effects of the pandemic (Tacheles e. V.).
Source: SG Bremen Judgment of 7 February 2023 – S 24 SO 94/21, BeckRS 2023, 8473
Tacheles Note:
a. Interpretation of SGB II § 67 para. 3:
1. The Higher Social Court of Saxony-Anhalt, in its decision of March 7, 2022 – L 4 AS 40/22 B ER – ruled that Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) also applies to moves not related to the pandemic, meaning that actual accommodation costs must be covered for the first six months. The wording of the provision and its legislative history do not justify a restrictive limitation of its application to already occupied living space.
2. SG Hamburg, Judgment of 19.12.2022 – S 62 AS 863/22 – The fiction of the appropriateness of the costs of accommodation and heating resulting from § 67 para. 3 sentence 1 SGB II aF also applies in the case of an unnecessary move which took place during the Corona pandemic.
Legal tip:
On December 14, 2023, the Federal Social Court (BSG) will decide this legal question: B 4 AS 4/23 R
4.3 – LSG Baden-Württemberg, judgment of April 27, 2023 – L 7 SO 296/23
Social assistance – Basic income support for the elderly and those with reduced earning capacity – 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) – Realization of assets from private pension insurance affirmed
Social assistance: Assets are disregarded (only) for a period of six months (Editor of Tacheles e. V.)
Guidance (Editor of Tacheles e. V.)
1. The provision in Section 141 Paragraph 2 of the German Social Code, Book XII (SGB XII) is not applicable because the disregard of assets applies (only) for a period of six months, beginning with the first benefit period (see also Higher Social Court of North Rhine-Westphalia, decision of June 28, 2022 – L 9 SO 140/22 B ER; Kirchhoff in Hauck/Noftz, SGB XII, as of August 2022, Section 141, marginal note 14; Groth in jurisPK-SGB XII, 3rd edition 2020 [as of May 30, 2022], Section 141, marginal notes 18 et seq.).
Source: www.socialgerichtsabilities.de
Tacheles note: unfortunately, the same applies to:
LSG NRW, decision of 28.06.2022 – L 9 SO 140/22 B ER and SG Detmold, judgment of 13.09.2023 – S 35 SO 27/23 –
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.
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Stuttgart Social Court – Decision of 23 November 2023 – Case No.: S 11 AY 3311/23 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, Stuttgart Social Court
Guiding principle of the editor of Tacheles e. V.:
Granting of benefits in accordance with §§ 3, 3a AsylbLG in the standard benefit level 1.
Continued with attorney Sven Adam
5.2 – Lower Saxony-Bremen Higher Social Court, Judgment of 26 September 2023 – L 8 AY 24/21
Prohibition of assignment; joinder; interpreter costs; flat-rate payment; healthcare services; principle of knowledge; declaration of assumption of costs; emergency aid provider; intent to be legally bound; inpatient treatment
Official principle
1. The provider of medical treatment (here a hospital operator) generally has no independent claim against the benefit provider under the Asylum Seekers' Benefits Act (AsylbLG) for reimbursement of the costs associated with the treatment (here denied for interpreter costs claimed separately).
2. On the interpretation of official declarations of assumption of costs concerning health services pursuant to Sections 4 and 6 of the Asylum Seekers' Benefits Act (AsylbLG)
Source: voris.wolterskluwer-online.de
6. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Objection by simple email is ineffective – LSG Hessen, Judgment of 18.10.2023, Case No.: L 4 SO 180/21 –
Objections to administrative acts are subject to statutory formal requirements. They can be submitted in writing or recorded in writing. If submitted electronically, a qualified electronic signature or transmission via De-Mail is required. A simple email is not sufficient.
Further information can be found in the press release of the Hessian State Social Court dated December 7, 2023.
Note from Tacheles:
Decision published by me in the Tacheles case law ticker, week 48/2023
6.2 – Newsletter from Attorney Volker Gerloff – 17 – 2023 –
1. Social Court Nuremberg: Entitlement to integration assistance for Ukrainian child
In my newsletter 04-2023 I already reported on a decision by the Social Court of Nuremberg, according to which Ukrainian nationals with a residence permit under Section 24 of the Residence Act may not be denied integration assistance benefits.
Now the Social Court of Nuremberg has ruled again (decision of 01.12.2023 – S 13 SO 166/23 ER):
More information: www.ra-gerloff.de
6.3 – Disability symbol aG: Ability to walk in public spaces is crucial – a contribution by attorney Helge Hildebrandt, Kiel
The Federal Social Court (BSG) ruled in March 2023 that the ability to walk in public traffic areas is decisive for the award of the disability symbol aG (exceptionally disabled) and thus the use of disabled parking spaces.
If a severely disabled person can only move around with assistance or with great effort, they are entitled to the "aG" disability marker (provided that the mobility-related impairment corresponds to a degree of disability of 80). Improved walking ability, for example indoors or in familiar surroundings, is irrelevant for this designation.
More information: sozialberatung-kiel.de
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Note from Tacheles:
This rule is being introduced because gegen-hartz.de in particular has been extracting content from the ticker for years without attribution or permission.
The Tacheles e. V. association wishes you a lovely, peaceful Advent weekend!
Author of the legal news ticker: Detlef Brock, editor of Tacheles
A note on my own behalf:
I have been creating the weekly ticker for the association Tacheles e. V. for 15 years now.
I enjoy my work, it gives me pleasure, I hate it when the weak, sick or unemployed cannot assert their rights.
Recently, there has been an increasing number of instances where my work is simply copied without permission, and my legal tips, guidelines, or advice are simply adopted – this is a copyright infringement – and is only permitted with attribution to Tacheles e. V.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
