1. Decisions of the Federal Social Court on basic income support under the (SGB II) and on pension insurance
1.1 – Federal Social Court, decision of December 14, 2023 – B 4 AS 4/23 B
Guiding principle by attorney Claudia Zimmermann:
1. The employment of "auxiliary judges" who are not personally independent, which also includes judges of the Social Court seconded to the State Social Court, requires compelling reasons. These include, in particular, the secondment of tenured judges of lower courts to higher courts for suitability testing, the need to temporarily replace judges who are absent, or the need to handle a temporary, exceptional workload.
2. Here: Individual case of a successful appeal against the refusal to grant leave to appeal, based on the procedural defect of the court not being constituted in accordance with regulations, because the secondment of a judge at the Social Court to the Court of Appeal for a period of 33 months was not compatible with the requirements for the use of "assistant judges" at the Higher Social Court.
Source: Attorney Claudia Zimmermann
1.2 – BSG, judgment of 12/21/2023 – B 5 R 1/22 R
Pension insurance – Survivor's pension – Death benefit quarter – Claim for reimbursement – Basic income support provider
Is the increased widow's pension during the so-called quarter of death a benefit provided under public law regulations for an expressly stated purpose within the meaning of Section 11a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), such that, in the case of a coincidence of basic income support for jobseekers and an increased widow's pension, the reimbursement claim of the basic income support provider against the pension insurance provider under Section 104 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) is limited to the amount of the widow's pension that was payable after the end of the quarter of death?
BSG: The death benefit quarter serves the same purpose as unemployment benefit II. Income crediting under SGB II.
Editorial Note by Tacheles e. V.:
The reimbursement claim of the provider of basic income support for jobseekers under Section 104 Paragraph 1 Sentence 1 of the German Social Code, Book Ten (SGB X), when basic income support for jobseekers and a widow's pension from the statutory pension insurance coincide, is not limited in the so-called "quarter of death" to the amount of the widow's pension calculated using the pension type factor applicable after the end of the quarter of death. This is because the increased widow's pension in the quarter of death is not a benefit provided under public law regulations for an expressly stated purpose within the meaning of Section 11a Paragraph 3 Sentence 1 of the German Social Code, Book Two (SGB II).
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG Saxony-Anhalt, decision of 16.11.2023 – L 2 AS 131/23 B
Legal aid appeal – Call-up to a work opportunity – Contestation of the call-up – Resolution
Guiding Principles
1. An appeal may be admissible in the case of a call-up to a work opportunity, regardless of the value of the appeal, if the call-up – similar to an integration administrative act – is not merely a starting point for a possible sanction.
2. Regardless of whether the assignment or selection for a work opportunity was issued as an administrative act according to the specific circumstances of the individual case, there is no legal interest in challenging it if the work opportunity is no longer to be taken up and no further legal consequences are attached to the non-participation.
Source: www.socialgerichtsabilities.de
2.2 – LSG Saxony-Anhalt, decision of 16.11.2023 – L 4 AS 524/21 B
Citizen's income: Regarding the transfer of child benefit to the adult child not living in the household of the benefit recipient for the direct payment of subsistence-securing liabilities, in this case payment of electricity installments to the supplier (Tacheles e. V.)
Guiding principles
1. Child benefit passed on to an adult child living outside the household is excluded from the income assessment of the benefit recipient.
2. The transfer can also be carried out by transferring part of the money to the child's bank account and using the other part directly for basic socio-cultural needs (for example, by paying electricity bills to the supplier).
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V.:
1. LSG Saxony-Anhalt, Judgment of 19.10.2016 – L 4 AS 22/15 –
The forwarding of child benefit to a child not living in the recipient's household within the meaning of Section 1 Paragraph 1 Number 8 of the German Social Code, Book II (SGB II) (juris: AlgIIV 2008) also applies if the benefit recipient – with the child's consent – regularly uses the child benefit received in their account to pay the rent for the child's own apartment (exceeding the amount of the child benefit). This also applies to other direct payments by the benefit recipient towards the child's liabilities that serve their socio-cultural needs (including educational expenses), such as electricity costs or tuition fees.
2. SG Speyer, Judgment of 21.11.2022 – S 18 AS 917/20 –
Basic income support for job seekers – Child benefit is also considered income of the father entitled to child benefit, even if the family benefits office pays the adult child living in the household
Child benefit is income of the person entitled to child benefit
Guiding principle of the editor of Tacheles e. V.:
1. If a person entitled to child benefit receives benefits under the German Social Code, Book II (SGB II), the child benefit is generally to be counted as income even if the family benefits office pays it to the adult child living in the household.
2. In the present case, the child to whom the child benefit was paid was not in need of assistance due to his own assets.
Source: sgsp.justiz.rlp.de
2.3 – LSG Hamburg, judgment of October 6, 2023 – L 4 AS 322/20
Obligation of the person entitled to basic income support to realize the value of their share of co-ownership in a house property – existence of a special hardship
Guiding principle
1. Existing assets of the person entitled to basic income support are realizable pursuant to Section 12 Paragraph 1 of the German Social Code, Book II (SGB II), if their belongings can be consumed, transferred, or encumbered within the upcoming benefit period. This applies, among other things, to a share of co-ownership in a house and land. (Paragraph 37)
2. The assets must be taken into account at their market value. (Paragraph 50)
3. The mere hardship associated with the realization of assets is not sufficient to protect assets within the meaning of the assumption of particular hardship within the meaning of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 2 of the German Social Code, Book II (SGB II). (Paragraph 55)
4. If the recipient of basic income support fails to demonstrate efforts to utilize their assets, the granting of benefits under Book II of the German Social Code (SGB II) must be denied in accordance with Section 22 Paragraph 1 Sentence 3 of the SGB II. (Paragraph 59)
Source: www.landesrecht-hamburg.de
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Frankfurt, decision of. January 12, 2023 – S 9 AS 753/21
SG Frankfurt: The legal remedies information must include a reference to the possibility of filing an objection electronically
Citizen's allowance: Conditions for denying benefits due to lack of cooperation – the Job Center's letter of cooperation was unlawful, because
A refusal of benefits under Section 66 of the German Social Code, Book I (SGB I) requires proper notification (Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.
1. The notice must not be limited to a general instruction or reproduction of the wording of the law, but must, based on the decision alternatives granted to the benefit provider by Section 66 Paragraph 1 of the German Social Code, Book I (SGB I), clearly and specifically describe the decision that is intended in the individual case if the person concerned does not comply with the request for cooperation within the set deadline.
Source: www.socialgerichtsabilities.de
4. Decisions of the state social courts or social courts on employment promotion law (SGB III)
4.1 – SG Landshut, judgment of October 20, 2023 – S 16 AL 196/21
Guiding Principles
1. The rejection of an application for short-time work compensation replaces, to the extent of the benefit decision, the rejection of the recognition of a significant loss of working hours and the operational prerequisites for short-time work compensation. The rejection notice becomes the subject of pending court proceedings concerning the rejection of recognition pursuant to Section 96 of the Social Court Act (SGG) (following the Federal Social Court's judgment of February 15, 1990 – 7 RAr 22/89).
2. The provision of short-time work compensation should not shift the employer's entire operational and economic risk onto the community.
3. It may be attributed to the general operational and economic risk of the employer if a company engaged in the commercial provision of temporary workers hires new employees for the purpose of taking on a new order despite generally known supply chain problems in the industry of the user company, and this problem then materializes shortly after the assignment and leads to production disruptions in the user company as well as a loss of work.
Source: www.socialgerichtsabilities.de
4.2 – SG Karlsruhe, judgment of November 21, 2023 – S 2 AL 2410/21
Guiding Principles
1.) If an employee's wage claim has been fully satisfied by enforcement (i.e., a default judgment) at the time of an insolvency event, the wage loss required under Section 165 of the German Social Code, Book III (SGB III), arises only upon successful avoidance by an insolvency administrator and the return of what was obtained to the insolvency estate (following the Federal Labor Court's ruling of October 26, 2017 – 6 AZR 511/16 – juris para. 36, BAGE 161, 21). However, this does not fundamentally preclude the granting of insolvency benefits.
2.) If an employee unsuccessfully attempts to legally challenge the insolvency administrator's challenge to the transaction, they are prevented from applying for insolvency benefits, at least until they become aware of the decision pursuant to Section 324 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), through no fault of their own. Therefore, they can submit the application pursuant to Section 324 Paragraph 3 Sentence 2 SGB III at least within two months of becoming aware of the decision. The question of the compatibility of the preclusive period in Section 324 Paragraph 3 Sentence 1 SGB III with Directive 2008/94/EC (cf. Federal Labour Court, loc. cit.) then does not arise.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – SG Munich, Judgment of 24.11.2023 – S 46 SO 97/23
Regarding the conditions for the assumption of necessary funeral costs under Section 74 of the German Social Code, Book XII (SGB XII), and the question of reasonableness, to what extent the costs must be borne by the individual and, if necessary, co-heirs must be called upon (Tacheles e. V.).
Guiding Principles:
The relationship between the duty to arrange a funeral under state funeral law and the heirs' obligation to bear the costs under Section 1968 of the German Civil Code (BGB) is a question of the reasonableness of bearing the costs, not a question of whether an obligation exists within the meaning of Section 74 of the German Social Code, Book XII (SGB XII). All circumstances of the individual case must be considered in the assessment of reasonableness. It is generally reasonable to expect a person obligated to arrange a funeral who is indigent to seek reimbursement of the funeral costs from the heir(s). This is not the case if the estate is over-indebted, the heirs are essentially without assets, and the person obligated to arrange the funeral is closely related to the deceased.
Source: www.socialgerichtsabilities.de
Note from Tacheles e. V.:
cf. on this legal question LSG Baden-Württemberg judgment of 26.2.2019 – L 2 SO 2529/18 – and LSG Bayern, judgment of 17.03.2022 – L 8 SO 170/21 –
5.2 – LSG Baden-Württemberg, judgment of November 27, 2023 – L 2 SO 1092/23
Guiding Principles:
The assumption of funeral costs is not reasonable for the relative of the deceased (here, the brother), who himself receives supplementary basic income support, within the meaning of Section 74 of the German Social Code, Book XII (SGB XII), after he had disclaimed the inheritance due to significant over-indebtedness (at the time of death, liabilities of approximately €44,000 were offset by a credit balance of €1,078.04) and subsequently received no further information regarding the current account balance (including any credits) or any potential claim for assumption of funeral costs by the administrator of the estate.
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – LSG Baden-Württemberg, Judgment of 19 October 2023 – L 7 AY 3594/21
Guiding principles:
The mere filing of an asylum application does not imply a claim for benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Source: www.socialgerichtsabilities.de
7. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Speaking out against “100 percent sanctions”
Wuppertal – The Wuppertal-based unemployed workers' association "Tacheles" considers the federal government's plans to cut parts of the citizen's allowance for those who refuse to work to be "neither appropriate nor constitutional." The full statement follows.
Read more at: www.wuppertaler-rundschau.de
Also recommended: What are the benefits of stricter sanctions for benefit recipients?
Labor Minister Heil wants stricter sanctions for some benefit recipients. But how much will this contribute to their integration into the labor market? Experts warn of "side effects".
Social law expert Thomé believes the planned complete elimination of the standard benefit rate is unconstitutional in its scope. "At the very least, food vouchers should be provided, and the flat-rate allowances for electricity and telecommunications should continue to be paid, because electricity is considered part of housing costs, and the Federal Constitutional Court has clearly stated that these must not be affected, as any sanction would then be unconstitutional." Otherwise, those affected would be unable to continue their job search. He also points to the risk of collective punishment for relatives. "And how exactly this significant sanction is supposed to be ended seems to me to be insufficiently defined at present."
More information: www.tagesschau.de
7.2 – Second therapy chair for school education – Commentary on LSG Chemnitz, Judgment of 25.01.2023 – L 1 KR 366/20 –
Child with a disability: Second therapy chair for school?
The plaintiff, a severely disabled girl, already had a therapy chair for home use. She applied for another therapy chair, adapted to her height, for school. The health insurance company refused, and a legal dispute ensued.
The State Social Court in Chemnitz granted the girl the right to a second therapy chair.
Further information: dav-sozialrecht.de
Important note:
Unpublished judgments (marked with "nv") that we receive from courts, lawyers, or private clients may be quoted, but only with attribution to Verein Tacheles; anything else constitutes copyright infringement. Thank you!
The information, guidelines and legal tips in the ticker must also be marked with the source: "Information from Tacheles", anything else constitutes a copyright infringement.
This publication is subject to the Creative Commons CC-BY-SA 3.0 license.
Any use of copyrighted works on the internet without the consent of the author or rights holder constitutes copyright infringement. Quotes from the ticker always require attribution!
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
