1. Decisions of the Federal Social Court on basic income support/citizen's allowance (SGB 2)
1.1 – BSG, judgment of 09/27/2023 – B 7 AS 17/22 R
Basic income support for job seekers – final determination and reimbursement of benefits pursuant to Section 41a of the German Social Code, Book II (SGB II) – expiry of the one-year period stipulated in Section 41a, Paragraph 5 of the German Social Code, Book II (SGB II) – application by the beneficiary for a final decision – submission of documents
Regarding the question of under what conditions the fiction of the final determination of provisionally granted benefits pursuant to Section 41a Paragraph 5 SGB II does not apply.
Source: www.socialgerichtsabilities.de
2. Decisions of the State Social Courts on Basic Income Support/Citizen's Allowance (SGB II)
2.1 – LSG Baden-Württemberg, judgment of October 17, 2023 – L 9 AS 683/23
Guiding principles
1. In disputes concerning the timing of the payment of approved benefits under the German Social Code, Book II (SGB II), the action for benefits is generally the appropriate type of action.
2. The benefit provider decides on the fulfillment of the eligibility requirements and the amount of benefits due under the German Social Code, Book II (SGB II), by means of an administrative act, which constitutes the legal basis for receiving the benefits. It is impossible to pay benefits under the SGB II based solely on the principle of eligibility. Even though Section 42 Paragraph 1 of the SGB II stipulates that benefits are to be paid monthly in advance, a claim for benefits cannot be validly brought to compel payment of benefits before the benefits have been officially approved.
Source: www.socialgerichtsabilities.de
2.2 – LSG Baden-Württemberg, decision of 28.07.2023 – L 9 AS 1295/23 ER-B
The guiding principles are
as follows: Article 7(1)(a) of Directive 2004/38/EC, according to its wording ("worker or self-employed person in the host Member State"), establishes a right of free movement under EU law following employment in the host Member State. Based on this, employment in another European country prior to becoming unemployed cannot establish (continuing) employee status in Germany within the meaning of Article 7(3) of the Directive.
Source: www.socialgerichtsabilities.de
2.3 – LSG Baden-Württemberg, judgment of November 14, 2023 – L 9 AS 3474/21
Guiding Principles:
In actions against decisions rejecting benefits that do not contain a time limit, the entire period up to the last oral hearing or decision of the (last) court of first instance is in dispute. However, a new application for benefits constitutes a break in the process and limits the period in dispute of the previous application, regardless of whether the new application for benefits has already been decided (following BSG, judgment of 6 June 2023 – B 4 AS 4/22 R –, juris para. 37).
Source: www.socialgerichtsabilities.de
Note from the editor of Tacheles e. V.:
This ruling also addresses the question of when a share of co-ownership can be used for citizen's income and when citizen's income should be provided as a subsidy or not at all.
Guideline of Tacheles e. V.
1. If the claim for partition regarding the co-ownership share in the community of heirs – as in the present case – is not asserted, there is also no actual obstacle to realization (cf. BSG, judgment of 27.01.2009 – B 14 AS 42/07 R; LSG Lower Saxony-Bremen, judgment of 24.10.2017 – L 5 AS 1577/15; LSG Berlin-Brandenburg, decision of 12.04.2016 – L 32 AS 445/16 B ER; LSG Baden-Württemberg, judgment of 24.01.2012 – L 13 AS 3113/09 -).
2. In particular, the failure to make efforts to realize the value of the estate out of consideration for family members, such as the concern about conflicts among the co-heirs in the present case, does not constitute an obstacle to realization (BSG, Judgment of 27.01.2009 – B 14 AS 42/07 R).
Legal tip from Tacheles e. V.:
see, for example, the recent ruling by the Hamburg Higher Social Court (LSG Hamburg) of October 6, 2023 – L 4 AS 322/20.
2.4 – LSG Baden-Württemberg, decision of 14.12.2023 – L 9 AS 2756/23 ER-B
Guiding principles
1. Notwithstanding the fact that the Federal Employment Agency, as the responsible rehabilitation provider, is responsible for determining the need for rehabilitation, the decision-making power regarding the services provided to disabled employable persons in need of assistance remains with the job centers.
2. The assessment of suitability concerns both physical and mental performance for the intended measure and subsequent professional activity and includes a prognostic component which is subject to full judicial review.
Source: www.socialgerichtsabilities.de
2.5 – LSG Berlin-Brandenburg, decision of 17 January 2024 – L 32 AS 1179/23 B ER
Regulatory order – review procedure – appropriateness – undefined legal term – housing costs – heating, interpretation – legal aid after settlement – AV Wohnen Berlin – social housing
Berlin job centers must recognize full rental costs – a comparison with social housing rents is necessary, according to the association Tacheles e. V.
Citizen's income:
Housing that is appropriate according to the requirements of social housing construction and the Housing Benefit Act (WoGG) cannot be considered inappropriate under basic income support law, at least in tight housing markets (Tacheles e. V.).
Guiding principles
1. The AV Wohnen Berlin of 13.12.2022 still does not contain a coherent concept for determining the limits of reasonable accommodation costs, because it is normatively inconsistent and therefore conceptually inconclusive.
2. When applying the values of the housing benefit table increased by a factor of 1.1 (Annex 1 to Section 12 Paragraph 1 WoGG), Section 12 Paragraph 7 WoGG (climate component) should be taken into account.
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V.:
similarly, LSG BB, judgment of 30.03.2023 – L 32 AS 1888/17 – Berlin job center must recognize full rent costs – comparison with social housing rents required
2.6 – Saxon State Social Court, Judgment of 15 December 2023 – L 10 AS 797/20 and L 10 AS 537/22
Wave of lawsuits over housing costs: Court confirms Leipzig's housing cost rates
Tacheles Association: The City of Leipzig's concept regarding the housing needs of single-person households has been confirmed in principle by several rulings of the Higher Social Court
Guidelines:
For a 1-person household in the city of Leipzig, a coherent concept exists for the period from December 2014 to December 2016 after improvements by the Senate with regard to the consideration of a confidence interval.
Source: www.sozialgerichtsbarkeit.de and www.sozialgerichtsbarkeit.de
See also:
LSG Saxony, press release of 22.01.2024
The 10th Senate and the 4th Senate of the Saxon State Social Court issued judgments on December 15, 2023 and December 19, 2023, respectively, in separate proceedings concerning the amount of reasonable housing costs, including advance payments for operating costs, in the city of Leipzig.
The subject of the review was the so-called KdU guidelines of 2014 (10th Senate) and 2018 (4th Senate), which have since been superseded by partially amended subsequent concepts and were based on the concepts adopted by the City Council of Leipzig.
Read more at: www.datev-magazin.de
Note from Tacheles e. V.:
here is the judgment of the 4th Senate of the Saxony State Social Court regarding Leipzig's housing costs.
Saxon State Social Court, Judgment of 19 December 2023 – L 4 AS 107/20 – published in the Tacheles case law ticker, week 6/2024
2.7 – Saxon State Social Court, Judgment of 29 August 2023 – L 4 AS 834/17 – Appeal to the Federal Social Court allowed
Citizen's income/basic income support – – Income consideration – Profits from operating a photovoltaic system – No deduction of earned income allowances – No income from employment – No use of one's own labor
Citizen's Income/Basic Income Support:
1. Profits from operating a photovoltaic system must be considered as income for citizen's income purposes. No deductions for earned income are allowed, as it is not income from employment (Tacheles Association).
The association Tacheles e. V. adds:
Copyright protection
1. Profits from the operation of a photovoltaic system are considered income and must generally be taken into account when calculating eligibility for benefits under the German Social Code, Book II (SGB II).
2. Profits from operating a photovoltaic system do not constitute income from gainful employment within the meaning of Section 11b of the German Social Code, Book II (SGB II). There is no entitlement to deductions for gainful employment allowances pursuant to Section 11b, paragraphs 2 and 1, sentence 1, no. 6 in conjunction with paragraph 3 of the SGB II, as agreed by the Higher Social Court of Baden-Württemberg, judgment of February 23, 2018 – L 1 AS 3710/16 – (Tacheles Case Law Ticker, Week 11/2018) and the Social Court of Oldenburg, judgment of January 25, 2018 – S 32 AS 1096/16 – (Tacheles Case Law Ticker, Week 20/2018, https://anwaltskanzlei-adam.de/2018/05/15/tacheles-rechtsprechungsticker-kw-20-2018).
Guiding principles www.sozialgerichtsbarkeit.de
1. A person is considered employed within the meaning of Section 11b Paragraph 2 Sentence 1, Paragraph 3 SGB II aF if they perform economically usable work for a certain period of time.
2. The mere fact that the income from a photovoltaic system is classified under tax law does not make the person to whom this income flows an employable person entitled to benefits who is employed within the meaning of Section 11b Paragraph 2 Sentence 1, Paragraph 3 of the German Social Code, Book II (SGB II).
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Reutlingen, Judgment of 17.02.2022 – S 7 AS 716/21 (not published – copyright protection must be observed)
Citizen's income/basic income support:
The move must generally be carried out independently, which follows from the principle that benefits under the German Social Code, Book II (SGB II), only provide assistance for self-help.
BUT:
Moving company for single and mentally distressed mother at the expense of the job center, because unlike the job center, the association Tacheles says:
A move can be carried out – but not independently –
if: 1. your two-year-old son (who has just had heart valve surgery) requires continuous supervision and care during the move and
2. The mother was mentally unwell and limited in her everyday competence.
Guiding principle of the Tacheles e. V. association (copyright protection):
1. In principle, beneficiaries are required to minimize the costs of a move through self-help, meaning that they must generally organize and carry out a move themselves.
2. In any case, if the person entitled to benefits cannot carry out the move themselves, whether due to age, illness, childcare, disability, or medical reasons, or if the reasonable and possible extent of self-help has been exhausted (see SG Stralsund AZ. S 9 AS 107/20), the assumption of costs for a commercial provider may also be considered.
Legal tip from Tacheles e. V.:
SG Stralsund, court decision of June 5, 2020 – S 9 AS 107/20 –
1. If the benefit provider confirms the necessity of a move due to a long distance to the relocation site and fails to clarify that the move must be carried out entirely by "self-help", the discretion regarding the acceptance of the most favorable relocation cost offer from a commercial moving company is reduced to "0".
2. If, from the perspective of reasonable self-help, no other option existed for the beneficiaries to carry out the move, the defendant's discretion regarding the amount of moving costs to be recognized as a need is reduced to "0" and the decision is bound by the most favorable cost estimate.
Note from Tacheles e. V.:
Although somewhat older, this is still relevant information that recipients of citizen's income should be aware of:
The authorities cannot simply refer to the help of friends and acquaintances when someone is moving!
1. The person entitled to benefits must pay attention to keeping costs as low as possible when preparing and carrying out a move (BSG of 6 May 2010 – B 14 AS 7/09 R: "The obligation to take initiative expressed in § 2 SGB II can be used as an aid to interpretation in the general application and interpretation of all regulations that norm the rights and obligations of the person entitled to benefits.").
2. Exceptions include age, illness or disability, and the presence of young children.
3. But also other personal reasons: If one does not possess a corresponding driver's license and neither relatives, friends or acquaintances are available, a move on one's own is not possible and the costs for a professional move must be covered by the job center (cf. BSG, Judgment of 15.11.2012 – B 8 SO 25/11 R, para. 21; SG Lüneburg, Decision of 11.02.2013 – S 45 AS 50/13 ER, paras. 11 and 12).
4. Where possible and reasonable, the job center may therefore refer the recipient to self-help measures (disassembling, packing, and assembling the furniture in the new apartment). The recipient is also required to seriously request help from family members, relatives, or friends (LSG Saxony-Anhalt, November 27, 2012 – L 5 AS 902/12).
5. However, relatives or friends are not obligated to carry out a move for a benefit recipient. Family members are only obligated to provide moving assistance if they are members of the benefit unit. The need for professional help cannot therefore be denied solely by referring to friends and relatives (Federal Social Court [BSG] judgment of November 15, 2012 – B 8 SO 25/11 R; Social Court [SG] Lüneburg judgment of February 11, 2013 – S 45 AS 50/13 ER). (See Geiger in Accommodation and Heating Costs under the German Social Code, Book II – The Handbook, § 1st edition, as of May 1, 2015, pp. 308 et seq.)
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Baden-Württemberg, decision of 20.11.2023 – L 8 AL 2913/23 ER-B
Citizen's income:
For the assumption of energy debts in the form of a loan, the exhaustion of priority self-help options is a prerequisite (Tacheles Association).
Guiding principles
1. On the lack of entitlement to unemployment benefits of a German doctor who, after dependent employment in Switzerland, moved back to Germany, was never a cross-border commuter, and did not submit the certificate from the Swiss social security institution regarding the periods of employment in Switzerland.
2. On the lack of eligibility requirements for a start-up grant in such a case.
3. In preliminary legal protection proceedings, it is not possible to file a subsidiary application for the granting of (further) benefits under the German Social Code, Book II (SGB II), alongside main applications based on the SGB III, as this leaves it unclear whether proceedings exist against the benefit provider to which the claim is conditionally made (prohibition of subjective joinder of claims on the part of the respondent).
4. Regarding the lack of grounds for an order (with respect to the granting of benefits under the German Social Code, Book III) for an unemployed married couple of doctors who receive benefits under the German Social Code, Book II, and who refuse to take up dependent employment, even temporarily, on the grounds that only the establishment of a practice to be supported by the Federal Employment Agency is an option, and that both parents are not available for dependent employment due to raising their two young children.
Source: www.socialgerichtsabilities.de
4.2 – LSG Berlin-Brandenburg, decision of 17 November 2023 – L 14 AL 61/23 B ER
Guiding Principles:
Assistance in the form of necessary school support for attending vocational school within the framework of dual training is considered assistance for school-based vocational training according to Section 112 Paragraph 1 Sentence 1 Number 2 of the German Social Code, Book IX (SGB IX). This is because the provision does not contain any restriction that school-based education or training within the framework of dual training may not be supported.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Social Court Munich, decision of 28.08.2023 – S 46 SO 274/23 ER
Guiding principles:
An urgent application aimed at prohibiting the authority from requesting certain documents before the next benefit approval is directed towards preventive legal protection and is admissible as a protective order pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG).
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V.:
See also: SG Munich, decision of 08.08.2023 – S 46 SO 266/23 ER –
Basic income support benefits for the elderly and those with reduced earning capacity:
1. Approval period of less than six months is possible (Tacheles e. V.)
2. The fact that continuous bank statements result from a lawful limitation of the approval period to three months is not objectionable (Tacheles e. V.)
Guiding Principles:
In preliminary injunction proceedings, an authority cannot, in principle, be compelled by the court to issue an administrative act due to the prohibition against prejudging the main issue. The approval period for basic income support for the elderly and those with reduced earning capacity can also be less than six months if there is a corresponding objective justification.
Source: www.socialgerichtsabilities.de
Note from Tacheles e. V.
regarding both decisions of the Munich Social Court, 46th Chamber:
LSG Bayern, decision of 24.11.2023 – L 8 SO 176/23 B ER (nv) – Constitutional complaint to the Federal Constitutional Court file number: – 1 BvR 2397/23 – rejected
Source: dejure.org
5.2 – LSG Hamburg, judgment of 12/14/2023 – L 4 SO 51/22 D
Requirements for proving effective receipt of a judgment by electronic transmission
Principle
1. When a document is served by acknowledgment of receipt, the date of service is the day on which the recipient personally becomes aware of the receipt of the transmitted document. Lawyers are among the persons to whom electronic service is permitted pursuant to Section 173 Paragraph 3 of the German Code of Civil Procedure (ZPO). (Paragraph 42)
2. The absence of an electronic or written confirmation of service does not necessarily preclude the effectiveness of service. In the absence of proof, actual receipt is deemed to have occurred pursuant to Section 189 of the German Code of Civil Procedure (ZPO). (Paragraph 44)
3. If the lawyer's office has expressly promised the social court by telephone that it will send the confirmation of receipt and the lawyer has not disputed receipt of the document, then proof of receipt is deemed to have been provided by electronic transmission. (Paragraph 45)
Source: www.landesrecht-hamburg.de
5.3 – LSG NSB, Decision of 17.03.2020 – L 8 SO 7/20 B ER (nv – Copyright Protection)
Social assistance – accommodation and heating – pest control costs as a grant or loan
Legal basis for the assumption of pest control costs (bed bug infestation) under social assistance (SGB XII) – Tacheles Association.
Guideline of Tacheles e. V.:
1. The assumption of the costs for pest control according to § 19 para. 3 SGB XII in conjunction with §§ 41, 42 no. 4 or 5 SGB XII and § 35 f. SGB XII or § 37 SGB XII – at least as a loan – has been credibly demonstrated.
2. A claim for assistance to overcome particular social difficulties under Sections 67 and 68 of the German Social Code, Book XII (SGB XII) is not excluded from the outset.
3. Should the claimed need be attributable to benefits for accommodation within the meaning of Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) (see, for example, Social Court Reutlingen, decision of November 13, 2019 – S 4 AS 2464/19 ER;
contra, for a – probably not applicable here – “misuse” of an apartment – “hoarder” – Higher Social Court of Lower Saxony-Bremen, decision of March 8, 2012 – L 13 AS 22/12 B ER –), the granting of a subsidy or a loan pursuant to Section 35 Paragraph 1 Sentence 1 SGB XII or Section 36 Paragraph 1 SGB XII may be considered; pest control would certainly constitute a “comparable emergency” within the meaning of Section 36 Paragraph 1 Sentence 1 SGB XII, because the bedbug infestation prevented the (reasonable) use of the applicant's apartment.
4. If the costs of pest control cannot be attributed to the need for accommodation within the meaning of Section 35 Paragraph 1 of the German Social Code, Book XII (SGB XII), a loan may also be granted in accordance with Section 37 of the German Social Code, Book XII (SGB XII) (cf. regarding the controversial relationship between these provisions, the Senate decision of September 14, 2005 – L 8 AS 125/05 ER –).
See also:
Citizen's income: Combating bedbugs – does the job center pay the costs? An article with commentary on the Reutlingen Social Court's decision of November 13, 2019 – S 4 AS 2464/19 ER
Continue reading: www.buerger-geld.org
6. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Figures for North Rhine-Westphalia
Injustice in the citizen's income – there are huge differences in housing costs
Düsseldorf · Many recipients of citizen's income support cannot actually make ends meet with the housing allowances granted to them by their municipalities. In some cases, they have to come up with considerable sums each month. Where in North Rhine-Westphalia are those affected facing the greatest financial burden – and what the state government has to say about it.
Read more at: rp-online.de
6.2 – SG Bremen: Supplementary benefits for travel expenses within the framework of a phased reintegration
The Bremen Social Court (SG Bremen) ruled on October 26, 2023, that the German Federal Pension Insurance Fund (DRV) must cover travel expenses incurred as part of a phased reintegration program. The court held that phased reintegration under Section 44 of the German Social Code, Book IX (SGB IX) constitutes an independent medical rehabilitation service within the meaning of Section 42 Paragraph 1 SGB IX. Travel expenses associated with this program are therefore to be covered as supplementary medical rehabilitation services within the meaning of Section 64 Paragraph 1 Number 5 SGB IX, pursuant to Section 73 Paragraph 1 Sentence 1 SGB IX (Case No. S 14 R 125/19).
Further information: www.reha-recht.de
6.3 – Concepts 2013 and 2016 of the district of Bautzen for comparison area 5 (Kamenz region) for accommodation for a three-person household confirmed
The 7th Senate of the Saxon State Social Court ruled in three cases on December 14, 2023, on the appropriate cost of accommodation for a three-person household in the district of Bautzen, comparison area 5 (Kamenzer Land).
Further information: www.justiz.sachsen.de
Note:
The judgments of the Saxon State Social Court of 14 December 2023 – L 7 AS 869/18 and – L 7 AS 870/18 – were published in the Tacheles case law ticker, week 5/2024.
6.4 – Newsletter from Attorney Volker Gerloff 02/2024
Excerpt:
1. SG Neuruppin: Application of § 1a is unlawful
The Social Court of Neuruppin reinforces the view that the application of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is unlawful if the authority does not simultaneously find a way to cover the costs of the required cooperation (ticket for travel to the embassy; embassy fees, etc.) – after all, it cannot possibly be right to cut someone's money for public transport/long-distance travel, telecommunications, etc. (only needs for accommodation, food, personal hygiene and health care [bed-bread soap] and, in individual cases, clothing may be covered) and at the same time accuse them of not going to the embassy, etc. (Social Court of Neuruppin, decision of January 25, 2024 – S 27 AY 28/23 ER).
2. Continue here: www.ra-gerloff.de
Important note:
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
