Tacheles Legal Case Law Ticker Week 51/2023

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 12/13/2023 – B 7 AS 24/22 R

Basic income support for job seekers – final determination after provisional approval – zero setting – failed household – obligations to cooperate – attribution

Regarding the scope of the obligation of members of a household to provide evidence and information within the framework of the final decision following a preliminary decision pursuant to Section 41a Paragraph 3 Sentences 3 and 4 of the German Social Code, Book II (SGB II), if only one member of the household has earned income during the benefit period, but the household no longer exists at the time of the final decision (here due to the separation of the spouses).

Federal Social Court (BSG): No zero determination in case of lack of knowledge in a failed community of need

Guiding principle (Federal Social Court):
In cases of a failed community of need, breaches of duty can only be held against the person to whom the breach of duty is attributable when determining the entitlement to benefits.

Source: Press release BSG dated 13.12.2023

Recommended reading from Tacheles:
Job centers must not overstretch their cooperation obligations.

Job centers may not make the estranged wife of a long-term unemployed person suffer the consequences of their breach of their duty to cooperate.

If a married couple living in a household receiving social assistance separates and the self-employed husband fails to submit the income and expenditure documents requested by the job center, the assistance for the wife and two-year-old son may not be completely cut off.

If a wife is genuinely unable to cooperate in obtaining the necessary documentation, she cannot be accused of violating her duty to cooperate, according to the Kassel judges. The reasoning behind this ruling is likely also applicable to the current citizen's income system.

Continue reading at www.evangelisch.de

1.2 – BSG, judgment of 12/12/2023 – B 8 SO 20/22 R

Social assistance – funeral expenses – eligibility – state-law obligation to arrange a funeral – disclaimer of inheritance

Does someone who, according to state law, has a primary obligation to arrange a funeral, but who has disclaimed the inheritance but has already carried out the funeral, have a claim under Section 74 of the German Social Code, Book XII (SGB XII), if another person has accepted the inheritance? Are reminder and default fees considered funeral expenses?

Federal Social Court (BSG): Claim affirmed for reimbursement of funeral expenses of a party with secondary liability. Reimbursement of reminder and default costs only in unavoidable cases. (Tacheles e. V.)

Guiding principle of the editor of Tacheles e. V.:
1. The entitlement to benefits under Section 74 of the German Social Code, Book XII (SGB XII) is not automatically excluded simply by reference to those with primary obligations. Whether a (secondarily) obligated party has a claim or can be referred to primary obligations is a question of examining the criterion of reasonableness.

2. The reminder and default costs from this invoice only qualify as necessary funeral expenses if they were unavoidable for the plaintiff precisely because of her lack of means and no other options (such as payment in installments or deferral agreement) existed to avoid such costs.

Source: www.bsg.bund.de

Legal tip from Tacheles e. V.:
LSG NSB, Judgment of 21.02.2023 – L 15/8 SO 182/21 –

A reference to persons with priority obligations, which would exclude eligibility under Section 74 of the German Social Code, Book XII (SGB XII), is not applicable at least if, at the time the need arises, it is established that the persons with priority obligations are minors and indigent.

1.3 – BSG, judgment of 12/14/2023 – B 4 AS 4/23 R

Basic income support for job seekers – accommodation and heating costs – new tenancy – Corona pandemic

Does the deemed appropriateness provision of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) apply if the beneficiary moves to a more expensive apartment outside the jurisdiction of the previous basic income support provider without prior assurance during the period specified in Section 67 Paragraph 1 of the SGB II?

Editorial note from Tacheles e.V.:
The hearing has been cancelled. The legal dispute has been decided without an oral hearing. A report will be published after the judgment has been served.

1.4 – BSG, judgment of 12/12/2023 – B 8 SUN 9/22 R

Social assistance – basic income support for the elderly and those with reduced earning capacity – mobility needs – cost sharing for special transport services in Berlin – integration assistance – social participation – standard allowance

Social assistance: Disability-related needs that are also reflected in the standard rate (here: mobility needs) can also be covered as integration assistance benefits (Tacheles e. V.).

BSG: Social assistance does not exclude integration assistance (www.evangelisch.de)
1. People with walking disabilities do not have to cover their mobility needs solely from the standard social assistance rate and a disability-related additional need.

2. If the costs incurred during leisure time for a special transport service for elderly and disabled people exceed the mobility needs included in the standard social assistance rate, additional integration assistance benefits can be claimed to cover the travel costs.

More information: www.evangelisch.de

2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)

2.1 – LSG NRW, Decision of 24.05.2023 – L 7 AS 487/23 B ER

Citizen's income: No assumption of energy debts if they are not justified because the applicant has not unsuccessfully exhausted all reasonable self-help options (Tacheles e. V.)

Guiding principle of the editor of Tacheles e. V.:
Recipients of citizen's allowance must make a serious effort to reach installment payment agreements with their current energy supplier as well as to conclude a contract with another electricity provider (cf. decisions of the Senate of 18 January 2023 – L 7 AS 98/23 B ER – and of 7 November 2022 – L 7 AS 1353/22 B ER –, further: LSG NRW, decisions of 25 February 2019 – L 19 AS 272/19 B ER – and of 1 October 2015 – L 2 AS 1522/15 B ER –).

Source: www.socialgerichtsabilities.de

Legal tip from Tacheles e. V.:
similarly, LSG NRW, decision of 10.03.2023 – L 7 AS 98/23 B ER L 7 AS 99/23 B

2.2 – LSG Saxony, Judgment of 25.05.2023 – L 3 AS 525/21

Guiding principles:
A female student who, during a leave of absence due to maternity protection, pregnancy and parental leave, prepares exclusively for a repeat examination and does so for a period of 2 to a maximum of 6 hours per week, is not subject to the exclusion from benefits according to § 7 para. 5 SGB II.

Source: www.socialgerichtsabilities.de

2.3 – LSG NRW, Decision of 10.03.2023 – L 7 AS 98/23 B ER L 7 AS 99/23 B

Loan-based assumption of electricity debts as costs of accommodation and heating by the basic income support provider – necessity of exhausting all reasonable self-help options

Citizen's income: Switching suppliers as a self-help option before assuming electricity debts (Tacheles e. V.).

Guiding principle of the editor of Tacheles e. V.
1. A claim for the assumption of electricity debts by granting a corresponding loan pursuant to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) requires that all reasonable self-help options have first been exhausted.

2. Attempting to switch suppliers is also a reasonable self-help measure to achieve a prompt restoration of electricity supply. The applicants refused to even attempt to switch suppliers. They failed to credibly substantiate their claim that they currently have a relatively favorable contract at 24 ct/kWh, but would have to pay 94 ct/kWh with a new contract.

Source: www.socialgerichtsabilities.de

2.4 – LSG NRW, Decision of 05.07.2023 – L 7 AS 93/23

Citizen's allowance: Without using the apartment, no accommodation needs can be claimed and paid out – even if there is a civil law obligation to pay (Tacheles e. V.)

Guiding principle of the editor of Tacheles e. V.
1. Section 22 of the German Social Code, Book II (SGB II) is intended to protect the essential personal sphere of life "housing", so that the entitlement to benefits generally only covers the reimbursement of expenses for a specific dwelling actually used, which constitutes the current spatial center of life and covers the current existing accommodation needs (established case law; cf. Federal Social Court (BSG), judgments of June 25, 2015 – B 14 AS 40/14 R –; of February 17, 2016 – B 4 AS 2/15 R and of March 30, 2017 – B 14 AS 13/16 R –).

2. The occasional use of accommodation (cf. BSG, judgment of 17.02.2016 – B 4 AS 2/15 R–; judgment of the deciding Senate of 30.06.2022 – L 7 AS 1681/21–) or a mere postal address (LSG Bayern, judgment of 17.02.2011 – L 7 AS 49/08–) is not sufficient.

Source: openjur.de

2.5 – LSG NRW, Decision of 04.07.2023 – L 7 AS 532/22 B

Citizen's income: Mere speculation by the citizen's income office about the need for assistance of a destitute person led to the person seeking help having to live in a hut in the woods and having their ALG II (unemployment benefit II) completely revoked, clearly unlawful (Tacheles e. V.)!

Benefit providers must not refuse subsistence-level benefits based on mere speculation (Tacheles e. V.).

Guidance note from the editor of Tacheles e. V.:
1. A revocation notice is unlawful if it contains only mere speculation and the authority does not prove that the person seeking assistance has income.

2. The very reasoning given in the revocation notice, namely that the authority “assumes” that the applicant is no longer in need of assistance because he did not appear in person despite the cessation of payments, already raises doubts as to whether the respondent himself assumed that the applicant was not in need of assistance.

3. Even if a benefit provider claims to need to discuss benefit-related issues with a benefit recipient, in the event of a lack of cooperation, only a withdrawal notice pursuant to Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) is possible.

Source: www.socialgerichtsabilities.de

2.6 – Lower Saxony-Bremen State Social Court, Judgment of 26 April 2023 – L 9 AS 637/22 – Appeal allowed

Coronavirus pandemic; housing and heating costs; new tenancy; special regulations; social protection package; actual expenses; relocation; Coronavirus pandemic and social protection package: On the entitlement to actual housing and heating costs according to Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) from March 2020

Pandemic: No reimbursement of unreasonable accommodation costs for new tenancies (Tacheles e. V.).

Official Headnote
1. The provision of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II), introduced for periods beginning on or after March 1, 2020, does not contain a general authorization for the unlimited assumption of housing and heating costs. Section 67 Paragraph 3 SGB II is a special regulation created in response to the coronavirus pandemic, applicable for periods beginning on or after March 1, 2020, to mitigate the impact of the virus's spread on the economy and employment. It pertains to the preservation of housing and does not cover new tenancies or moves by benefit recipients within the period of validity of the provision. Therefore, Section 67 Paragraph 3 SGB II does not create an entitlement to the assumption of actual housing and heating costs after a benefit recipient moves into unsuitable accommodation.

2. A recipient of benefits under SGB II, whose unreasonably high costs are already covered in full pursuant to Section 67 Paragraph 3 of SGB II, and who moves into an even more expensive and larger apartment, is not entitled under Section 67 Paragraph 3 of SGB II to have the even higher housing costs covered.

Source: voris.wolterskluwer-online.de

Note from Tacheles e. V.:
a. Opinion: Social Court Kiel, decision of January 28, 2022 – S 34 AS 4/22 ER, legally binding, Bavarian State Social Court, decision of July 28, 2021 – L 16 AS 311/21 B ER, and State Social Court Lower Saxony-Bremen, decision of September 29, 2020 – L 11 AS 508/20 B ER, a. Opinion on the parallel provision § 141 SGB XII: Social Court Kassel, judgment of January 12, 2023 – S 11 SO 45/21 (published by Attorney Sven Adam and Tacheles Case Law Ticker KW 11/2023),

In agreement: Schleswig-Holstein Higher Social Court, decisions of March 23, 2022 – L 6 AS 28/22 B ER – and of November 11, 2020 – L 6 AS 153/20 B ER –; similarly, Berlin-Brandenburg Higher Social Court, decision of August 20, 2021 – L 18 AS 984/21 B ER –; Baden-Württemberg Higher Social Court, judgment of January 24, 2023 – L 13 AS 3802/21; currently pending before the Federal Social Court under file number B 4 AS 4/2 R –; similarly regarding the parallel provision § 141 SGB XII: Bremen Social Court, judgment of February 7, 2023 – S 24 SO 24/21

Note:
On December 14, 2023, the Federal Social Court (BSG) clarified the legal question in case B 4 AS 4/23 R: Does the deemed appropriateness provision of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) apply if the benefit recipient moves to a more expensive apartment outside the jurisdiction of the previous basic income support provider without prior approval during the period specified in Section 67 Paragraph 1 of the SGB II?

Legal tip (Tacheles e. V.):
Federal Social Court (BSG), judgment of 14 December 2023 – B 4 AS 4/23 R –

must wait

3. Decisions of the social courts on citizen's income (SGB II)

3.1 – SG Hamburg, Judgment of 19.12.2022 – S 62 AS 863/22 – Appeal allowed

Guiding principle
1. 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.

2. The legal fiction of reasonableness of accommodation and heating costs arising from Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II aF), is limited to a single period of six months. This period begins with the first instance where the actual and reasonable accommodation and heating costs diverge within the temporal scope of application of Section 67 Paragraph 3 Sentence 1 of the SGB II aF.

3. After the six-month period, the general regulations apply. If the move during the Corona pandemic was not necessary, housing costs may only be reduced to the amount of the previous housing costs (§ 22 para. 1 sentence 2 SGB II aF).

Source: www.landesrecht-hamburg.de

Legal tip (Tacheles e. V.):
Federal Social Court (BSG), judgment of 14 December 2023 – B 4 AS 4/23 R –

must wait

4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)

4.1 – LSG NRW, judgment of May 9, 2023 – L 9 AL 133/21

No start-up grant without prior unemployment (Tacheles e. V.)

Guidance note from the editor of Tacheles e. V.:
If taking up self-employment does not end unemployment, as it did not exist previously, but rather there was only unemployment for one day, a Sunday, without any efforts being made or planned to end the unemployment, and consequently subjective availability was not given, there is no entitlement to unemployment benefits and no start-up grant can be awarded (cf. the Senate's judgment of 25.09.2014 – L 9 AL 219/13).

Source: www.socialgerichtsabilities.de

4.2 – LSG NRW, judgment of May 4, 2023 – L 9 AL 41/22

Further training bonus approved for passing the theoretical part of her training as a kindergarten teacher (Tacheles e. V.)

Guidance note by the editor of Tacheles e. V.
1. The duration of the vocational training measure and the period between the first and second parts of the final examination necessitate, in this case, equal treatment with cases in which participation in an intermediate examination is possible within the framework of vocational training (Federal Social Court judgment of 09.03.2022 – B 7/14 AS 31/21 R).

2. The employment agency has no discretion in this matter. By issuing the training voucher, the employment agency is also bound by the legal consequences under Section 131a Paragraph 3 of the German Social Code, Book III (SGB III), if the conditions of the provision are met (Federal Social Court judgment of March 9, 2022 – B 7/14 AS 31/21 R). This is the case here.

Source: www.socialgerichtsabilities.de

5. Decisions of the State Social Courts on Social Assistance (SGB XII)

5.1 – LSG NRW, judgment of 08/17/2023 – L 9 SO 208/21

Social assistance: No reimbursement of emergency aid costs if there is no emergency situation as defined by the Federal Social Court (Tacheles e. V.)

Guiding principle by the editor of Tacheles e. V.
1. According to the Federal Social Court (BSG), hospitals are entitled to remuneration for services provided as emergency aid workers pursuant to Section 25 of the German Social Code, Book XII (SGB XII), only as long as the social welfare agency is unaware of the case requiring benefits (see BSG judgment of October 6, 2022 – B 8 SO 2/21).

2. Accordingly, the social welfare law element of an urgent case within the meaning of Section 25 Sentence 1 of the German Social Code, Book XII (SGB XII), is already lacking on the day of a person in need of assistance being admitted to a hospital if – as in the present case – time remains to inform the responsible social welfare agency in order to first await its decision on granting the necessary assistance or to create the conditions for granting social assistance (similarly, Federal Social Court (BSG) decision of March 1, 2018 – B 8 SO 63/17 B).

Source: www.socialgerichtsabilities.de

5.2 – LSG NRW, decision of 08.08.2023 – L 9 SO 173/23 NZB and L 9 SO 172/23 ER

Social assistance: On the question of whether a recipient of benefits under the German Social Code, Book XII (SGB XII) is entitled to reimbursement of the costs of progressive lenses.

The costs for purchasing progressive lenses are covered by the standard benefit (Tacheles e. V.)

Guidance note by the editor of Tacheles e. V.
1. The costs for the purchase of such new glasses as a subsidy are covered by the standard benefit and, unlike the repair of glasses (cf. Federal Social Court judgment of 25 October 2017 – B 14 AS 4/17 R), do not establish an entitlement under the provisions of Chapter Four of the German Social Code, Book XII (see Federal Social Court judgment of 18 July 2019 – B 8 SO 4/18 R).

2. Claims for benefits under Section 73 of the German Social Code, Book XII (SGB XII) also do not exist, because a benefit covered by the standard allowance does not constitute an atypical need situation (see Federal Social Court [BSG] judgment of May 29, 2019 – B 8 SO 8/17 R).

Source: www.socialgerichtsabilities.de

Legal tip regarding the German Social Code, Book II (SGB II) – Tacheles e. V.:
Social Court Frankfurt (Main), judgment of March 22, 2016 (Case No.: S 19 AS 1417/13):

To affirm the entitlement to funding from the placement budget pursuant to Section 16 of the German Social Code, Book II (SGB II) in conjunction with Section 44 of the German Social Code, Book III (SGB III), also by assuming or reimbursing the costs of the distance glasses procured by the recipient of unemployment benefit II (Alg II) together with the near-vision glasses for integration into the office environment, if only in this way can sufficient visual acuity be established and thus unnecessary risks to the individual and other persons be reliably excluded.

and

SG Detmold, Judgment of 11.01.2011 – S 21 AS 926/10

Progressive lenses constitute a special need under the German Social Code, Book II (SGB II)

Further information: www.sozialgerichtsbarkeit.de

5.3 – LSG NRW, Decision of 24.08.2023 – L 9 SO 69/23 B

Social assistance – notification of transfer pursuant to Section 93 of the German Social Code, Book XII (SGB XII) – recovery of gifts – residential property – discretion

Recovery of a gift by the administration only after a hearing (Tacheles e. V.)

Guiding principle of the editor of Tacheles e. V.
1. Granting of legal aid, because according to the case law of the Federal Social Court (Judgment of 23.02.2023 – B 8 SO 9/21 R) the donors must be heard comprehensively beforehand and all discretionary aspects must be determined.

2. Furthermore, the question arises whether the plaintiff's close relationship with his wife and the fact that she continues to be his caregiver despite the separation should not have been taken into account in the discretionary decision.

Source: www.socialgerichtsabilities.de

Note from Tacheles e. V.:
further information on beck-aktuell: Reclaiming a gift by the administration only after a hearing

6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)

6.1 – Lower Saxony-Bremen State Social Court, decision of 31 August 2023 – L 8 AY 23/23 B ER

habitual residence; church asylum; local jurisdiction; spatial restriction; travel assistance; teleological extension; residence requirement; no benefits under the Asylum Seekers' Benefits Act (AsylbLG) in church asylum in case of a violation of a spatial restriction under asylum or residence law

Official Headnote
1. In the event of a violation of a spatial restriction under asylum or residence law, in addition to the authority responsible for the actual place of residence within the meaning of Section 11 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), the benefit authority responsible on the basis of an allocation or distribution decision or due to a residence requirement pursuant to Section 10a Paragraph 1 Sentence 1 of the AsylbLG is only obligated to provide limited assistance, which as a rule corresponds to the scope of benefits under Section 11 Paragraph 2 of the AsylbLG (established case law of the Senate; see also Lower Saxony-Bremen Higher Social Court, judgment of June 20, 2008 – L 11 AY 47/08 ER – juris Rn 17 f.).

2. The obligation to provide benefits under Section 11 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) encompasses all benefits necessary to cover de facto needs, which, however, are generally limited to covering necessary travel expenses and urgently required food costs so that the foreigner can reach the place of residence determined by the asylum or immigration restrictions. In atypical cases, more extensive benefits up to the level of regular benefits (Sections 3 and 2 AsylbLG) must be provided (here denied for the stay in open church asylum).

Source: voris.wolterskluwer-online.de

Legal tip from Tacheles e. V.:
see also LSG NSB, decision of 18.08.2023, file number: L 8 AY 20/23 B ER

Notice from the Lower Saxony State Social Court (LSG NSB) dated December 12, 2023: No subsistence benefits in church asylum if spatial restrictions are violated

Asylum seekers who violate a residence requirement and instead seek church asylum in another location are not entitled to comprehensive benefits under the Asylum Seekers' Benefits Act.

Lower Saxony-Bremen State Social Court, decision of 18 August 2023, L 8 AY 20/23 B ER. Similar decision concerning a Guinean national in church asylum in Bremen: L 8 AY 23/23 B ER.

Continue to the press release of the LSG NSB dated 12.12.2023

6.2 – SG Karlsruhe, decision of 06.12.2023 – S 12 AY 2765/23 ER

Tacheles e. V.:
On the likely alleged harassment by the asylum seeker benefits administration regarding so-called pocket money.

According to the German Basic Law, no foreigner in Germany has to choose between their family and their right to asylum, because such a forced situation violates the fundamental rights to asylum, marriage, family and the upbringing of one's own child!

Guiding Principles:
An interim regulatory order must be limited in time if the factual and legal situation can hardly be examined in the expedited court proceedings because, on the one hand, it is unreasonable to expect the applicant to wait any longer for the subsistence benefits to which he is highly likely to be entitled, and on the other hand, the benefit administration unlawfully fails to cooperate in clarifying the facts in the court proceedings and, in particular, unlawfully keeps its administrative files secret.

According to the German Basic Law, no foreigner in Germany has to choose between his family and his right to asylum, because such a forced situation would violate the fundamental rights to asylum, marriage, family and the upbringing of one's own child.

In some cases, due to the foreseeable legal consequences of a hypothetical violation of the spatial restrictions of a residence permit, it constitutes harassment if an authority cuts off the so-called "pocket money" of an asylum-seeking father and husband without any comprehensible reason and simultaneously forces him to make weekly 600 km journeys to visit his wife and son in Germany, as a result of which the destitute applicant is in turn at risk of being so difficult to reach by mail that his asylum seeker benefits are restricted and his asylum procedure is formally terminated.

For a successful legal defense against existing cash payment claims, an authority must, at least by submitting suitable administrative documents, either demonstrate when and how it paid out the cash payment and in what amount, or explain why it was exceptionally allowed to refrain from doing so.

From an evidentiary perspective, the disputed receipt of cash constitutes a negative fact for the (social) benefit recipient that lies solely within the sphere of the (social) benefit debtor and cannot regularly be further substantiated due to a lack of evidence.

Source: www.socialgerichtsabilities.de

7. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes

7.1 – Benefits to secure livelihood despite a waiting period? Judgment of the Baden-Württemberg State Social Court of 26 June 2023 – L 7 AS 3328/21

Editorial staff EGovPraxis Jobcenter:
If the Federal Employment Agency determines that a waiting period has commenced, the involuntary nature of unemployment as a prerequisite for entitlement to benefits under the German Social Code, Book II (SGB II) can no longer be confirmed.

More information: www.wolterskluwer.com

7.2 – The traffic light system is cutting costs: Private households will pay hundreds of euros more for electricity and gas in 2024

Continue: www.fr.de

Note:
There's only one thing to say:
It's simply heartbreaking to disappoint people like this during the Christmas season!

The most important thing is that our little one has a beautiful Christmas tree, lots of presents, and a happy time together with the family.

But what do we, the victims, do? It's cruel, hurtful, simply beyond words.

Important note:
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The Tacheles e. V. association wishes you a beautiful, reflective Advent weekend!

I would like to take this opportunity to thank the many readers who have remained loyal to me over the past 15 years. My thanks also go to the numerous lawyers, courts, and private individuals who have repeatedly provided me with sensitive legal rulings.

My thanks also go to the association Tacheles e. V. under the leadership of Harald Thome, who have always supported me and, above all, and this is very important to me, have shown humanity!!

I wish all people on this planet a Merry Christmas!

Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker