1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II), on social assistance under the German Social Code, Book XII (SGB XII) and on child benefit law
1.1 – BSG, judgment of July 13, 2023 – B 8 SUN 15/22 R
Social assistance – transfer notice – objection – court settlement
Can a notification of transfer (§ 93 SGB XII) be resolved in another way (§ 39 paragraph 2 SGB X) by a settlement between the social welfare agency and a third party within the framework of an action to set aside enforcement (§ 767 ZPO) in civil court proceedings?
BSG:
The notification of transfer is not resolved by the concluded settlement "in another way" (Tacheles e. V.).
Guiding principle of the editor of Tacheles e. V.
1. The notification of transfer, as an administrative act shaping the transfer of the claim (magistral assignment), does not lose its regulatory effect if the debtor and the new creditor reach an agreement before an ordinary court regarding the existence and amount of the transferred claim as well as the modalities for fulfilling the claim.
Source: www.socialgerichtsabilities.de
1.2 – BSG, judgment of 12/13/2023 – B 7 AS 15/22 R
Basic income support for job seekers – income assessment – earned income allowance – compensation for reservist service in the German Armed Forces – minimum benefit – reservist service bonus
BSG:
The minimum benefit pursuant to Section 9 Paragraph 1 USG 2015 for the reserve service of a former professional soldier is earned income within the meaning of Section 11b Paragraph 2, Paragraph 3 Sentence 2 SGB 2, which must be adjusted by the earned income allowance (Tacheles e. V.).
Source: www.bsg.bund.de
Further reading tip from Tacheles e. V.:
Ruling: Job centers must grant tax-free allowance to Bundeswehr reservists
According to the Federal Social Court (BSG), reservists of the German Armed Forces are considered to be engaged in gainful employment during reserve training exercises. If these retired soldiers are dependent on assistance from the job center, the agency may deduct the income from their reserve activities from their benefits, but must also grant them the earned income allowance.
Continue reading at www.evangelisch.de
1.3 – BSG, judgment of 12/14/2023 – B 10 KG 1/22 R
Child benefit for oneself – knowledge – place of residence – mother – Syria
Under what circumstances does a child living in Germany have knowledge of the whereabouts of their parents living abroad, which precludes an entitlement to child benefit under social security law pursuant to Section 1 Paragraph 2 Sentence 1 Number 2 Alternative 2 BKGG?
BSG: No child benefit for oneself if telephone contact with mother abroad
Guiding principle (BSG):
Children can only receive child benefit for themselves if they are full orphans or do not know the whereabouts of their parents.
A child cannot claim child benefit if they can occasionally call their mother abroad and inquire about her whereabouts.
Press release from the Federal Social Court (BSG) dated December 14, 2023
Recommended reading from Tacheles e. V.:
Ruling: No separate child benefit if there is contact with the mother abroad
Continue reading at www.evangelisch.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG NRW, Decision of 02.11.2023 – L 12 AS 914/23 B ER
The applicant and the GmbH rent an apartment – the applicant is a subtenant – full cost coverage by the JC due to the waiting period
Citizen's allowance: Job center must pay full accommodation costs for the subtenant if the apartment is also used as an office (cf. LSG NRW, decision of 13.01.2021 - L 7 AS 1874/20 B ER - Tacheles e. V.)
Guidance note by the editor of Tacheles e. V.:
1. The qualification of the accommodation as the applicant's residence is not called into question by the simultaneous work performed in these premises, as long as they are premises that otherwise meet the definition of a residence (LSG NRW decision of 13.01.2021, L 7 AS 1874/20 B ER).
2. Regarding the validity of the waiting period pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in conjunction with Section 65 Paragraph 3 of the German Social Code, Book II (SGB II).
3. The application of the waiting period is also not excluded under Section 65 Paragraph 6 of the German Social Code, Book II (SGB II).
4. After the waiting period has expired, Section 22 Paragraph 1 Sentence 7 of the German Social Code, Book II (SGB II) must be observed. This section stipulates that expenses for accommodation and heating, insofar as they exceed the amount appropriate to the specific circumstances of the individual case, are to be recognized as a need after the waiting period has expired, as long as it is impossible or unreasonable for the single benefit recipient or the household to reduce these expenses by moving, subletting, or other means, but generally for no longer than six months. According to Section 22 Paragraph 1 Sentence 8 of the SGB II, the waiting period is not to be included in this calculation. Therefore, a cost reduction procedure must first be initiated to reduce the accommodation and heating costs to a reasonable level
Source: www.socialgerichtsabilities.de
2.2 – LSG NRW, judgment of August 3, 2023 – L 7 AS 1866/21
No additional needs due to costly diet in cases of obesity, a lipid metabolism disorder, type IIb diabetes mellitus and elevated liver values (Tacheles e. V.).
Source: www.socialgerichtsabilities.de
2.3 – LSG Berlin-Brandenburg, judgment of October 5, 2023 – L 18 AS 778/23
Guiding principle of the editor of Tacheles e. V.
According to the wording of § 3 para. 4 EAO, an unemployed person cannot receive approval for their absence from their place of residence, regardless of the reason for the absence (profession, vacation, family), if they intend to stay outside the local area for more than six weeks (see also Saxon State Social Court, decision of March 10, 2022 – L 3 AS 1157/21 B ER).
Source: www.socialgerichtsabilities.de
2.4 – LSG Berlin-Brandenburg, decision of 25.09.2023 – L 9 AS 797/23 B ER
Guiding Principles:
If an unmarried EU citizen lives with her third-country national partner, who holds a residence permit under Section 25 Paragraph 2 of the German Residence Act (AufenthG), and their child, who is a few months old, she has a right of residence for family reasons with a degree of probability sufficient to justify an injunction, provided that a joint declaration of parental responsibility has been submitted to the youth welfare office, a genuine cohabitation and shared parenting arrangement exists, and the departure of the entire family is not possible. Under these conditions, she is entitled to benefits under Book II of the German Social Code (SGB II) in preliminary legal proceedings.
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V:
cf. for the case of an unmarried EU citizen living with a tolerated Tunisian national and their child, Saxon State Social Court, judgment of December 6, 2022 – L 4 AS 939/20 –
2.5 – LSG Berlin-Brandenburg, Judgment of 18 October 2023 – L 18 AS 279/23 – subsequently BSG, no date available, B 7 AS 95/23 B
Unemployment benefit II – inflation and cost increases – update of standard benefit rates – one-off payment received to compensate for the additional expenses of the COVID-19 pandemic in July 2022 – guaranteeing a dignified minimum standard of living
Constitutionality of the level of standard benefit rates for level 1 in 2022 (Tacheles e. V.).
Editorial note by Tacheles e. V.:
Despite the significant increase in inflation since at least March 2022, the statutory level of the standard benefit (level 1) does not result in a shortfall in the minimum subsistence level for benefit recipients who fall within the scope of Section 73 of the German Social Code, Book II (SGB II), during the benefit period covering the months of September and October 2022 (see, in general, the judgment of the Higher Social Court of Baden-Württemberg of July 20, 2022 – L 3 AS 1169/22; and the decision of the Higher Social Court of Schleswig-Holstein of October 11, 2022 – L 6 AS 87/22 B ER).
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Hamburg, Decision of 25 July 2023 – S 62 AS 1530/23 ER D
Citizen's income: Student loans from KfW Bank do not constitute assessable income – student grants do not constitute social benefits and are therefore not assessable income (Tacheles e. V.).
Guidance note by the editor of Tacheles e. V.
1. As a part-time student, the applicant is not excluded from benefits under the German Social Code, Book II (SGB II), because such studies are not eligible for funding in principle (see, for example, the judgment of the Higher Social Court of Mecklenburg-Western Pomerania of 21 July 2022 – L 14 AS 189/21).
2. The payments received from KfW Bank as part of the student loan are also not expected to be considered income. These must be repaid in full according to the terms and conditions available online. They do not constitute social benefits within the meaning of Section 11 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), Sections 18-29 SGB II, and do not primarily serve to secure subsistence, but rather to enable studies (similarly Schwabe, in: beck-online.GROSSKOMMENTAR (Gagel), as of February 1, 2021, Section 11 SGB II, marginal note 46; Thuringian Higher Social Court, judgment of October 23, 2019 – L 7 AS 1565/16; Geiger, in: Münder/Geiger, SGB II – Basic Income Support for Job Seekers, 7th edition 2021, Section 11 SGB II, marginal note 58; left open in the Federal Social Court, judgment of December 8, 2020 – B 4 AS 30/20 R).
Guiding principle:
The receipt of funding based on a private-law funding agreement for the financing of studies does not constitute income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), even if repayment is only owed in the event of reaching a minimum income, but on the other hand, the recipient of assistance may be required to pay an additional fee of 6.3% of their annual income.
Source: www.landesrecht-hamburg.de
3.2 – Augsburg Social Court, Judgment of January 19, 2022 – S 11 AS 401/21 – legally binding (not published) First appellant: Attorney Daniel Zeeb, Augsburg
Social law administrative procedure – Reimbursement of costs in preliminary proceedings – Allocation of reimbursement costs among several members of a household receiving benefits
Regarding the legal question of the extent to which successful appellants are entitled to reimbursement of the expenses of the preliminary proceedings if they have retained a joint lawyer with a losing appellant in the same matter (Tacheles e. V.)
Guiding Principles by Attorney Daniel Zeeb
1. If, in the case of multiple objectors, the objection is successful only with regard to individual objectors, the authorized attorney receives the fees only once (§ 7 para. 1 RVG), but can claim from each client the fees and expenses that the latter would owe if the attorney had acted only on their behalf (§ 7 para. 2 RVG).
2. Joint legal fees of several – some successful, some unsuccessful – objectors in the same matter are regularly only to be reimbursed to a fully successful objector in the amount that, in the internal relationship between the objectors, is allocated to him on a per capita basis.
3. However, a different rule applies if the successful appellant is (likely) ultimately liable for legal fees that exceed their share in the internal relationship between the appellants. If recourse by the (successful) appellant against the other appellants – in the internal relationship between the appellants – is unlikely to be successful, these "excess" costs are considered "necessary" expenses within the meaning of Section 63 Paragraph 1 of the German Social Code, Book X (SGB X).
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG NRW, Judgment of 13.06.2023 – L 9 AL 24/22 – Appeal allowed
Coronavirus pandemic, legal deadline, start-up grant
The consequences of the pandemic must be taken into account when granting start-up subsidies (Tacheles e. V.).
Unemployed people are entitled to a start-up grant for self-employment as a childminder despite restrictions due to the Corona pandemic (Tacheles e. V.)
Guidance note for editors of Tacheles e. V.
1. The “claim” whose “duration upon commencement of self-employment is at least 150 days” is a contingent right, not a concrete claim for payment that has already developed into a full right.
2. To the extent that case law and legal literature argue that Section 93 Paragraph 2 Sentence 1 No. 1 Half-Sentence 2 of the German Social Code, Book III (SGB III) refers to an actually existing substantive legal claim, not to a fictitiously existing claim, and that the substantive requirements of a concrete claim for payment must be met, which is why, in the present case, at most an analogous application of the provision should be considered (see Osnabrück Social Court, judgment of March 17, 2022 – S 43 AL 100/20; followed by Kador in: Eicher/Schlegel, SGB III, Section 421d SGB III, marginal note 39a; Kuhnke in: jurisPK-SGB III, Section 93 SGB III, marginal note 51), the Senate does not share this view.
3. This assumption is correct only for the entitlement to unemployment benefit required until the commencement of self-employment (see, for example, the Federal Social Court judgments of 5 May 2010 – B 11 AL 28/09 R and B 11 AL 11/09 R on Section 57 Paragraph 2 Sentence 1 No. 1a of the German Social Code, Book III, as amended up to 31 March 2012; Higher Social Court of Hamburg judgment of 31 July 2019 – L 2 AL 50/18), but not for the remaining entitlement period of 150 days.
Source: www.socialgerichtsabilities.de
4.2 – LSG Berlin-Brandenburg, judgment of November 8, 2023 – L 18 AL 17/23
Payment of short-time work allowance (Kug) – compliance with the application deadline
Failure to comply with the application deadline for claiming short-time work compensation; three-month exclusion period; no reinstatement to the previous status
The notification of work stoppage does not replace the application for short-time work compensation (see LSG Baden-Württemberg, judgment of February 16, 2011 – L 3 AL 2195/10 -) – Tacheles e. V.
Guidance note from the editor of Tacheles e. V.:
1. According to Section 325 Paragraph 3 of the German Social Code, Book III (SGB III), there is a three-month deadline for claiming short-time work compensation. If this deadline is missed, reinstatement to the previous status is not possible.
2. The existence of undue hardship pursuant to Section 324 Paragraph 1 Sentence 2 of the German Social Code, Book III (SGB III) is also not to be examined, since this provision refers (only) to Section 324 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) – and thus not to the short-time work allowance (Kug) to be applied for subsequently.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG NRW, judgment of October 18, 2023 – L 12 SO 390/22
The social welfare provider will not cover the costs of inpatient hospital treatment as an emergency aid provider (Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.
1. In the scope of application of § 25 SGB XII, the day on which the social welfare provider became aware of the need or could have become aware of it, is therefore no longer to be assigned to the emergency assistance claim (LSG Hamburg judgment of 04.05.2023, L 4 SO 89/21).
2. The patient's entitlement to social assistance is of a highly personal nature and therefore cannot be transferred, pledged or seized in accordance with Section 17 Paragraph 1 Sentence 2 of the German Social Code, Book XII (for details see: Federal Social Court judgment of October 6, 2022, B 8 SO 2/21 R).
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Stuttgart Social Court – Decision of 23 November 2023 – Case No.: S 11 AY 3580/23 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
Continued with attorney Sven Adam
Guiding principle of the editor of Tacheles e. V.:
Granting of basic benefits according to §§ 3, 3a AsylbLG in the standard needs level 1.
Note from Tacheles e. V.:
similarly, SG Stuttgart – decision of 23.11.2023 – file number: S 11 AY 3311/23 ER
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
