1. Decisions of the Federal Social Court on employment promotion law (SGB 3)
1.1 – BSG, judgment of 12/14/2023 – B 11 AL 2/22 R
Unemployment insurance – Unemployment benefits – Suspension – Old-age benefits from Swiss pension funds
BSG: No suspension of unemployment benefit 1 due to a one-off capital payment approved by a Swiss pension fund (Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.
1. This capital payment is not a benefit from a foreign institution comparable to the old-age pension from the German statutory pension insurance.
2. The suspension provision applies exclusively to recurring benefits, not to one-off payments. The social benefits expressly listed in the law that lead to the suspension of unemployment benefits are, without exception, recurring.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG NSB, Decision of 21.03.2023 – L 6 AS 90/23 B ER
Cash withdrawals; cash transactions; loans; energy bill arrears; rent arrears; abuse; self-help; antisocial behavior
Job center funds misused – No further assistance for rent arrears – No loans from the job center for rent debts in cases of misuse (Tacheles e. V.)
Citizen's income: In cases of abuse involving the deliberate creation of rent arrears, debt assumption is not justified (principle of Tacheles e. V.)
Official Guideline
1. When granting a loan to cover accrued rent arrears, even economically unreasonable and reprehensible behavior on the part of the person in need of assistance is generally disregarded. However, this does not apply in cases of abuse. This can be assumed if arrears for accommodation costs are caused at least conditionally intentionally, especially if arrears have repeatedly occurred in the past despite corresponding support and no willingness to help oneself is evident.
2. Abuse of funds, which would preclude the granting of a loan even considering the interests of two minor children, exists if, eleven and eight years respectively, prior to the accrual of rent arrears, two loans totaling more than €7,300 were already granted to cover energy debts. These loans are still being settled through ongoing offsetting, the instruction to the benefit provider to make direct payments to the landlord has been revoked, rent payments have been almost completely discontinued, resulting in rent arrears exceeding €9,600, several installment purchases of high-priced consumer goods have been made, and cash withdrawals significantly exceeding the rent arrears have been made, the purpose or recipient of which are not explained even upon court order.
Source: voris.wolterskluwer-online.de
Legal tip from Tacheles e. V.:
cf. LSG Stuttgart, decision of 13.03.2013 – L 2 AS 842/13 ER
2.2 – Thuringian State Social Court, Judgment of 24.08.2022 – L 4 AS 1212/19 – pending before the Federal Social Court – B 7 AS 10/23 R, published only in BeckRS 2022, 52881 – copyright protection must be observed
Regarding the non-crediting of a sum of money received during the receipt of benefits under the German Social Code, Book II (SGB II), due to gross unfairness pursuant to Section 11a Paragraph 5 Number 1 of the SGB II, if the payment covers expenses for accommodation that may be taken into account by the job center in whole or in part as a need pursuant to Section 22 Paragraph 2 of the SGB II.
LSG Thüringen: The mother's donation of €7000 for the repair of the asbestos roof after massive water damage would not be considered as disaster relief under § 11a para. 5 no. 1 SGB II (Tacheles e. V.).
Guiding principle by the editor of Tacheles e. V.:
1. The sum of money provided by the plaintiff's mother was income and not assets within the meaning of the German Social Code, Book II (SGB II), because it was received during the benefit period/after the application was submitted. However, it did not lead to the termination of the entitlement pursuant to Section 48 Paragraph 1 Sentence 2 No. 3 of the German Social Code, Book X (SGB X).
2. Considering the sum of money given by the mother – without any legal or moral obligation – to settle the roofer's bill as income would be grossly unfair to the plaintiff within the meaning of Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II).
Legal tip from Tacheles e. V.:
cf. LSG Mecklenburg-Vorpommern, decision of December 12, 2013 – L 8 AS 9/13 B ER –
A gross injustice within the meaning of Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II) does not exist in a case where the mother of a recipient of benefits under SGB II gives her 61-year-old son €5,000 in cash for the purchase of a motor vehicle, without being legally or morally obligated to do so (a different set of facts applied here; a motor vehicle is an item that can easily be sold again and thus "turned into money for living expenses").
Note from the editors of Tacheles e. V.:
This article is protected by copyright; quoting is only permitted with a link to this article – Source: Tacheles Legal Case Law Ticker Week 3/2024
2.3 – LSG Saxony-Anhalt, decision of 14.12.2023 – L 5 AS 356/23 B ER
Social court proceedings – preliminary legal protection – citizen's allowance – standard allowance according to standard allowance level 1 – adherence to law and justice
Guiding Principles
1. Due to their obligation to uphold law and justice (Article 20, Paragraph 3 of the Basic Law), the specialized courts may not determine a higher standard benefit. This also applies in preliminary injunction proceedings.
2. The current standard benefit rate for standard benefit level 1 is not evidently insufficient. There is no reason to refer the matter to the Federal Constitutional Court.
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V.:
cf. LSG Berlin-Brandenburg, judgment of 18.10.2023 – L 18 AS 279/23 – BSG – B 7 AS 95/23 B (pending)
2.4 – Hamburg Higher Social Court, Judgment of 18 December 2023 – L 4 AS 211/23 D – Appeal allowed
Regarding the interpretation of Section 7 Paragraph 6 No. 2 lit. b SGB II (Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.:
No granting of citizen's income as a subsidy to a beneficiary after rejection of his BAföG application during the pending appeal proceedings (contrary to SG Stade, judgment of 28.03.2019 – S 39 AS 67/18, SG Hamburg, decision of 20.6.2019 – S 31 AS 1291/19 ER and SG Hamburg, decision of 11.2.2020 – S 39 AS 353/20 ER).
Source: www.landesrecht-hamburg.de
Regarding the interpretation of Section 7 Paragraph 6 No. 2 lit. b SGB II – Commentary by Attorney Joachim Schaller dated January 13, 2023 (copyright protected, quoting permitted only with a link to this article – Source: Tacheles Case Law Ticker Week 3/2024)
"According to Section 7 Paragraph 6 No. 2 of the German Social Code, Book II (SGB II), all pupils (and students who live with their parents or one parent – or in an apartment owned by their parents) are entitled to (supplementary) benefits under the SGB II if they receive benefits under the Federal Training Assistance Act (BAföG)."
a) received or not received only because of the rules on the consideration of income and assets or
b) have applied and the responsible office for educational assistance has not yet decided on their application; if the responsible office for educational assistance rejects the benefits, Section 7 Paragraph 5 SGB II applies from the beginning of the following month.
It is disputed when the exclusion from benefits under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) begins if the BAföG (Federal Training Assistance Act) application is rejected not solely due to income or assets, but for other reasons (e.g., discontinuation of previous training for which the BAföG office does not recognize a compelling or unavoidable reason). While some legal scholars and courts maintain that the exception in Section 7 Paragraph 6 No. 2 b) of the SGB II should continue to apply, at least during ongoing appeal proceedings, the Hamburg Higher Social Court (LSG Hamburg) rejected this in its judgment of December 18, 2023 – L 4 AS 211/23 D – and granted leave to appeal to the Federal Social Court (BSG) to clarify this fundamental question. The appeal will be filed with the BSG in the coming days.
According to the Hamburg State Social Court (LSG Hamburg), from the month following the rejection of BAföG (Federal Training Assistance Act) there is no longer a normal entitlement to SGB II (Social Code Book II), but at most a hardship loan pursuant to Section 27 Paragraph 3 Sentence 1 SGB II (which was undisputed in the case decided after a corresponding preliminary injunction).
The Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) affirms a special hardship pursuant to Section 27 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), until the conclusion of preliminary legal protection proceedings before the Administrative Court regarding benefits under the Federal Training Assistance Act (BAföG), and awards 80% as a loan in the expedited proceedings (LSG Berlin-Brandenburg, decision of June 15, 2020 – L 31 AS 585/20 B ER -).
Therefore, to secure one's livelihood in the event of a BAföG (Federal Training Assistance Act) rejection, it is advisable to appeal the decision using the legal remedies available in each federal state and simultaneously claim at least loan benefits from the job center. Whether it is also necessary to file an application for a preliminary injunction against the BAföG office with the administrative court has not yet been decided by the highest court.
In any case, the exclusion from benefits under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) ends with the completion of the training. Contrary to the Job Center's opinion, this did not occur only at the end of the notice period for the training at the private vocational school, which charged tuition fees. Because no further school events were attended after the termination, the Job Center's appeal for the period after the termination date was rejected.
Joachim Schaller provides an overview of the complicated relationship between BAföG and SGB II benefits in the recently published 8th edition of the BAföG commentary Ramsauer/Stallbaum (Introduction Rn. 26-138)
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – none
Well, my weeks of effort to find the lawyer responsible for this ruling have finally paid off; I now have the correct case number.
Why am I writing this? Because my weekly ticker requires a great deal of work and therefore an enormous workload. That's why I really dislike it when the ticker is used as a database and suddenly the judgments from my work simply appear with a different heading; from a purely legal standpoint, there's hardly anything to object to.
But I would be ashamed and can only ask for the following:
Please do your own research and stop copying!! (This is directed at the people who annoy me every week; we know you all too well!)
3.1 – SG Potsdam, Judgment of 29 September 2023 – S 44 AS 675/21 – (not published), edited by Susanne Theobald, Editor, Main Administration, Communications Department
Citizen's allowance: Even if partners have lived together for less than a year, a household community can be assumed if particularly compelling circumstances justify the assumption of a community of responsibility and support, such as a longer prior relationship and pregnancy (guideline of Tacheles e. V.)
Source: Cohabitation on Trial (by Susanne Theobald)
According to the German Social Code, Book II (SGB II), when two people live together, a mutual intention to assume responsibility for each other and to support one another is presumed. This can lead to the consideration of income and assets and thus also to the denial of benefits to secure their livelihood. Does a trial period of cohabitation change this? And what exactly constitutes a trial period of cohabitation?
Source: www.dgbrechtsschutz.de
Legal tip from Tacheles e. V.:
SG Stade, court decision of 20.06.2016 – S 6 AS 515/13 – legally binding
Guiding principle of the editor of Tacheles e. V.:
Even if the relationship lasts less than a year, a cohabiting partnership can exist.
Recommended reading from Tacheles e. V.:
In cases of short-term cohabitation, partners are not always required to pay.
If a couple has only been living together for a short time, a Hartz IV applicant does not necessarily have to accept support from his partner from the provider of basic income support for job seekers ("Hartz IV") (LSG NRW, judgment of 16.2.2009 – L 19 AS 70/08).
Continue: datenbank.nwb.de
Three further legal tips from Tacheles e. V.:
1. Hamburg Higher Social Court, decision of 08.02.2007 – L 5 B 21/07 ER AS
Assets are only taken into account after one year
more at RA Kotz
2. Social Court Munich, Judgment of 18 May 2021 – S 8 AS 2502/19
Regarding the question of whether a community of need exists, the answer is no.
Principle (Editor):
In the case of partners who have lived together for less than a year, only compelling circumstances can justify the assumption of a community of responsibility and mutual support (LSG Lower Saxony-Bremen of 08.07.2009 – L 7 AS 606/09 B ER – FEVS 61, 523; LSG North Rhine-Westphalia of 16.02.2009 – L 19 AS 70/08; LSG North Rhine-Westphalia of 04.07.2007 – L 19 B 56/07 AS ER – FEVS 59, 128; LSG Berlin-Brandenburg of 18.01.2006 – L 5 B 1362/05 AS ER).
3. Schleswig-Holstein Higher Social Court, decision of 29 March 2022 – L 3 AS 29/22 B ER
Regarding the existence of a community of need between partners
Guiding principle (www.sozialgerichtsbarkeit.de)
1. Only in the case of compelling circumstances in the individual case can the one-year period pursuant to Section 7 Paragraph 3a No. 1 SGB II be reduced.
2. An engagement does not constitute such significant circumstances if it has been dissolved and one partner has subsequently moved out temporarily.
3. The provision of childcare within the meaning of Section 7 Paragraph 3a No. 3 of the German Social Code, Book II (SGB II), must be interpreted restrictively to avoid a conflict with No. 1 of the provision. Even when living with the children of the new partner, a shorter period is only justified if a substantial portion of the childcare is provided by the stepparent. School transportation and involving the children in the new partner's hobbies (here, fishing) are not sufficient grounds for this.
Note from Tacheles e. V.:
This also relates to the article by attorney Helge Hildebrandt in HEMPELS 6/2022.
More information: sozialberatung-kiel.de
Here's what lawyers say on this topic:
Reduction of citizen's allowance immediately after moving in with a partner?!
An article by attorney Matthias Göbe, Berlin
More information: www.anwalt.de
3.2 – admitted at the last second: SG Berlin, decision of 28.12.2023 – S 121 AS 6506/23ER
Citizen's allowance: Compensation for use after termination of employment must also be paid, according to lawyer Kay Füßlein from Berlin.
There is an unpleasant administrative practice that, after a lease is terminated, the JobCenter stops making rent payments to the landlord.
This is illegal.
In this particular case, the applicant had been legally obligated to vacate the apartment by December 31, 2023. However, he had not yet been able to find new accommodation, so it was foreseeable in December that he would still be living in the apartment. The landlord had not yet applied for eviction, and experience shows that, at least when the rent is paid, this is usually postponed.
However, since the JobCenter was aware of the agreement, it simply stopped the rent payments in January.
The appeal against this decision was successful. The compensation for use after the termination of the tenancy is also a need under Section 22 of the German Social Code, Book II (SGB II), and must therefore be covered.
Accordingly, even in the event of termination (or, as in the present case, due to a court judgment or settlement after the expiry of the eviction period), compensation for use must continue to be paid by the job center.
Continued with RA Kay Füßlein
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg, Judgment of 06.12.2023 – L 2 SO 843/23 – Appeal allowed
Guiding principles:
Reimbursement of costs pursuant to Section 102 of the German Social Code, Book XII (SGB XII) can still be demanded even after the separation of integration assistance for disabled persons, whose benefits were regulated in Chapter 6 of the SGB XII until December 31, 2019, and the transfer of these benefits to the German Social Code, Book IX (SGB IX), on January 1, 2020, at least if the integration assistance benefits were still provided under the old law, but the benefit provider only claims reimbursement of costs after January 1, 2020.
Source: www.socialgerichtsabilities.de
4.2 – LSG Baden-Württemberg, judgment of October 19, 2023 – L 7 SO 1760/21
Guiding principles:
If the mobility needs to be covered by the additional needs allowance pursuant to Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII) are not covered by the institution as the service provider, the additional needs allowance remains with the recipient of assistance within the framework of basic income support and cannot be credited against the specialist services.
Source: www.socialgerichtsabilities.de
Note from Tacheles e. V.:
Federal Social Court (BSG), judgment of 12 December 2023 – B 8 SO 9/22 R –: 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 disability-related additional needs.
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.
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Bayern, decision of 20.12.2023 – L 8 AY 45/23 B ER
Guiding principles
regarding the prerequisites for a restriction of entitlement pursuant to Section 5 Paragraph 4 Sentence 2 of 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 – The consideration of annual insurance premiums in the calculation of benefits
Prof. Dr. Peter Becker, former presiding judge at the Federal Social Court.
The applicant submits an invoice from his insurer showing that premiums are payable annually.
Should the premium for household contents or liability insurance be taken into account in the calculation of benefits, either as a monthly payment of one-twelfth or as a one-off payment? Is there a legal regulation regarding this?
More information: www.wolterskluwer.com
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
