1. Decisions of the state social courts on basic income support/citizen's allowance (SGB II)
1.1 – LSG NRW, Judgment of 25 May 2023 – L 6 AS 1306/22 – Appeal pending before the Federal Social Court – Case No.: B 7 AS 17/23 R
Is a company pension considered income or income not to be taken into account (§ 11a para. 3 sentence 1 SGB II) – new regulation of § 82 para. 4 SGB XII the introduction of an income allowance for additional retirement provision
Consideration of company pensions as income – there is no evidence to suggest that the regulation in Section 82 Paragraph 4 of the German Social Code, Book XII (SGB XII) is unconstitutional with regard to impermissible unequal treatment. (Tacheles e. V.)
Citizen's income:
Guiding principle Tacheles e. V. (Copyright protection)
1. Company pensions are considered income within the meaning of Section 11 of the German Social Code, Book II (SGB II).
2. In particular, the company pension does not constitute a benefit within the meaning of Section 11a Paragraph 3 of the German Social Code, Book II (SGB II), and Section 82 Paragraphs 4 and 5 of the German Social Code, Book XII (SGB XII) do not apply analogously in the law governing basic income support for job seekers.
3. The provisions of Section 82, paragraphs 4 and 5 of the German Social Code, Book XII (SGB XII) regarding allowances from income from supplementary retirement provision are not to be applied analogously in the law on basic income support for job seekers.
4. If, after all this, there are justifiable reasons to refrain from taking company pensions into account under certain conditions for basic income support for the elderly and those with reduced earning capacity under Book XII of the German Social Code (SGB XII), but not under Book II of the German Social Code (SGB II), this differentiation is also to be considered unobjectionable with regard to Article 3 Paragraph 1 of the Basic Law (GG) (similarly with regard to the unequal treatment within Book XII of the German Social Code (SGB XII) between basic income support for the elderly and those with reduced earning capacity on the one hand and long-term care assistance on the other; Social Court Lüneburg, judgment of October 16, 2019, S 22 SO 112/18 – confirmed by Higher Social Court of Lower Saxony-Bremen, judgment of September 10, 2020 – L 8 SO 265/19 –; contra, arguably, Schlette in Hauck/Noftz SGB XII, as of the 5th supplementary delivery 2023, § 82 para. 123).
Source: www.socialgerichtsabilities.de
1.2 – LSG NRW, decision of 10.11.2023 – L 21 AS 541/23 B
The standard rates for 2021/2022 were not evidently insufficient (see also the ruling of the Higher Social Court of North Rhine-Westphalia of 10 February 2022 – L 19 AS 1236/21 for 2021 and the ruling of the Higher Social Court of North Rhine-Westphalia of 31 March 2022 – L 2 AS 330/22 B ER for 2021 and 2022; regarding the standard rates for 2016/2017, see the Senate's judgment of 20 November 2020 – L 21 AS 56/20).
Citizen's Income:
Guidance from Tacheles e. V.
1. The question of whether the flat rate of €150 (BSG B 4 AS 36/23 B) was sufficient is unrelated to the question of the amount of the standard rates for 2021/2022.
2. Even if Section 70 of the German Social Code, Book II (SGB II), which provides for a one-off payment of €150 for May 2021, were deemed unconstitutional due to the amount being too low, this would not result in a higher standard benefit rate, but rather – possibly – a higher one-off payment. Furthermore, the Federal Social Court (BSG) dismissed the appeal against the denial of leave to appeal as inadmissible in its decision of July 5, 2023.
3. The fact that two appeals concerning the amount of the standard benefit in 2021 (L 12 AS 741/23) and 2022 (L 12 AS 668/23) are pending before the 12th Senate of the Higher Social Court of North Rhine-Westphalia does not lead to a prospect of success for the present action. The mere pendency of a legal question does not allow any conclusion to be drawn about the outcome of its clarification and thus about the prospects of success of the underlying action.
Source: www.socialgerichtsabilities.de
Note from Tacheles e. V.:
Federal Social Court (BSG), decision of July 5, 2023 – B 4 AS 36/23 B – appeal against the refusal of leave to appeal dismissed as inadmissible by decision of July 5, 2023
here: www.rechtsportal.de
We recall: Federal Social Court (BSG):
Is a 150 EUR lump sum for ALG II recipients sufficient for additional mask and hygiene needs during the pandemic? It was a contribution by Thomas Eschle, Stuttgart, who sadly passed away at the end of 2023; our condolences again.
Continued at www.anwalt.de: the post has since been deleted.
Legal tip from Tacheles e. V.:
Thomé Newsletter 07/2024 of 18.02.2024 – Item 1
1. Information from the Federal Constitutional Court regarding the referral procedure of the Social Code (SGB) in Karlsruhe concerning the level of standard benefits
———————————————————–
The Federal Constitutional Court, in response to an inquiry, has issued an interim statement regarding the referral proceedings initiated by the Social Court of Karlsruhe concerning the constitutionality of the calculation of standard benefit rates and one-off payments in connection with the Covid-19 pandemic, indicating that a decision is not yet foreseeable. The important point here is that the referral was not rejected by the Social Court of Karlsruhe.
1.3 – LSG NRW, Decision of 04.01.2024 – L 2 AS 600/23 B
Citizen's Income:
Guiding Principles of Tacheles e. V.
1. Benefit recipients have no subjective right to the appointment of a personal contact person.
2. There is generally no legal entitlement to an oral hearing.
3. A different rule applies only if required by individual legal provisions. No such provisions are apparent. While the legislator has, in the meantime, codified an obligation for a personal hearing pursuant to Section 24 of the German Social Code, Book X (SGB X), in Section 31a Paragraph 2 of the SGB II, this is expressly limited to cases where a reduction in citizen's allowance is determined due to a breach of duty under Section 31 of the SGB II (see Section 31a Paragraph 2 of the SGB II in the version of the Citizen's Allowance Act of December 16, 2022, applicable from January 1, 2023). Such a situation does not exist here.
Source: www.socialgerichtsabilities.de
1.4 – LSG Lower Saxony-Bremen, Judgment of 24 January 2024 – L 13 AS 395/21
No basic income support/citizen's allowance abroad in case of unauthorized absence from the place of residence (Tacheles e. V.) – No citizen's allowance without being reachable – Exclusion from benefits in case of unauthorized absence from the place of residence – Court orders repayment
The Lower Saxony-Bremen State Social Court (LSG) has ruled that a reversal of the burden of proof can occur to the detriment of a recipient of basic income support if he deceives authorities and courts about his place of residence.
Further information can be found in the press release of the LSG NSB dated February 19, 2024.
1.5 – LSG Hamburg, judgment of November 16, 2023 – L 4 AS 311/22 D
Exclusion of a right to storage of irrelevant data for a benefit claim by the basic income support provider
Guiding principle
1. The decision regarding the requested correction of data constitutes an administrative act within the meaning of Section 31 of the German Social Code, Book Ten (SGB X). The necessary legal interest for bringing an action is present. The assertion that stored data is incorrect is sufficient. (Paragraph 38)
2. However, there is no legal basis for the storage of data irrelevant to a benefit claim by the benefit provider. Accordingly, if the basic income support provider's data does not record receipt of unemployment benefit II without a period of unemployment, then a corresponding claim to have the receipt of basic income support without unemployment recorded by the basic income support provider is excluded. (Paragraph 39)
Source: www.landesrecht-hamburg.de
1.6 – LSG Berlin-Brandenburg, decision of 19.12.2023 – L 9 AS 1101/22
Citizen's Allowance:
If recipients of citizen's allowance live with relatives (here, the sister) in an apartment, the recipient cannot demand that the JobCenter replace the sister's name in the approval notice with a neutral personal term (Tacheles e. V.).
Guiding principles:
The requirement to protect one's own subjective rights or the exclusion of public interest lawsuits does not allow the protection of third-party rights to be pursued via "third-party damage liquidation" or "third-party data protection".
Source: www.socialgerichtsabilities.de
Legal tip from the Tacheles association:
LSG NRW, judgment of 16.10.2012 – L 12 AS 2309/11 – legally binding – and also LSG Bayern, decision of 01.07.2011 – L 7 AS 461/11 B ER –
Principle (Editor):
The Federal Employment Agency's referral practice does not violate social data protection laws. A referral with the reference "Federal Employment Agency" and the BG number is, in this combination, a permissible data transfer (Tacheles Case Law Ticker Week 35/2020).
2. Decisions of the social courts on citizen's income (SGB II)
2.1 – SG Nordhausen, Judgment of 21.12.2023 – S 19 AS 706/20
Basic income support for job seekers – consideration of income – disregard or preferential treatment of student income – Section 11b paragraph 2 sentence 2 of the German Social Code, Book II (SGB II) refers to gross income and not to income already adjusted for deductions according to Section 1 paragraph 4 sentence 1 of the German Social Code, Book II (SGB II) Regulation 2008
Guiding principle of the Tacheles e. V. association:
old legal situation!
No credit is given for income from the student job, because Section 11b Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II) refers to gross income and not to income already adjusted for deductions according to Section 1 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) Regulation 2008 (Verein Tacheles e. V.).
Guidance from the Tacheles Association e. V.
1. The maximum amount exempt from income consideration for earnings from holiday employment pursuant to Section 1 Paragraph 4 Sentence 1 of the 2008 Regulation on Unemployment Benefit II (Alg II-V 2008) was €1,200.00 per calendar year. Considering Section 11 Paragraph 1 Sentence 1 in conjunction with Section 2 Paragraph 1 of the 2008 Regulation on Unemployment Benefit II (Alg II-V 2008/4-12), this was likely a gross figure.
2. Any gross income exceeding this amount was to be treated as earned income in accordance with the general regulations.
3. According to Section 11b, Paragraph 2, Sentence 2 of the German Social Code, Book II (SGB II), the flat-rate deduction of €100 per month does not apply if the income from employment exceeds €400 and the benefit recipient proves that the sum of the amounts according to Paragraph 1, Sentence 1, Nos. 3 to 5 exceeds €100. These conditions are met here.
While the income threshold of €400, which is the only way to prove expenses exceeding €100, must be met solely through income from employment (Söhngen in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 11b (as of March 7, 2023), para. 50), this is the case here. Section 11b, paragraph 2, sentence 2 of the German Social Code, Book II (SGB II) refers to gross income and not, as the Job Center argues, to income already adjusted for deductions pursuant to Section 1, paragraph 4, sentence 1 of the 2008 Regulation on Unemployment Benefit II (Alg II-V 2008).
4. The systematic structure of the law does not suggest that the special allowance under Section 1 No. 4 of the ALG-II Ordinance should be treated differently than the allowances for employed persons under Section 11b Paragraph 3 of the German Social Code, Book II (SGB II).
Source: www.landesrecht.thueringen.de
Notice from the association Tacheles e. V.:
new legal situation regarding student jobs
The limit of up to €2,400.00 gross income was abolished with the introduction of the citizen's income. This means that income earned from a holiday job is no longer taken into account, and there is no longer a limit on the amount. A calculation of the difference between this amount and income exceeding the previous limit is no longer necessary.
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG Berlin-Brandenburg, decision of 08.11.2023 – L 18 AL 76/23 B ER
Employment promotion law:
Unemployed individuals may not have their "true" age, including any statutory retirement age they may have reached, held against them when applying for unemployment benefits; only their date of birth counts! (Tacheles Association)
Guideline Tacheles e. V.
Entitlement to unemployment benefit 1, because there may be no deviation from the date of birth of the first entry within the meaning of § 33a para. 1 SGB I.
Source: www.socialgerichtsabilities.de
3.2 – LSG BB, Judgment of 18 January 2024 – L 18 AL 65/22 – Appeal allowed
Guiding Principles:
A right to equal treatment under Articles 67 et seq. of EC Regulation 883/2004 exists only for periods of insurance and employment. A right to equal treatment for other events with legal relevance in the competent Member State – for example, registration as unemployed in another Member State – cannot be derived from Article 5 of EC Regulation 883/2004. Article 61 of EC Regulation 883/2004, as a special provision, conclusively governs the consideration of periods of contributions and insurance as well as periods of self-employment.
Source: www.socialgerichtsabilities.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, Judgment of 17.08.2023 – L 9 SO 519/21 – Commentary by the association Tacheles e. V. – Copyrighted contribution!
Entitlement to basic income support in old age and in case of reduced earning capacity under the German Social Code, Book XII (SGB XII) – benefits for accommodation and heating when living with one's parents in their single-family home –
Requirements for the recognition of expenses pursuant to Section 42a Paragraph 4 Sentence 1 and Sentence 2 of the German Social Code, Book XII (SGB XII)
Basic income support for the elderly and those with reduced earning capacity under the German Social Code, Book XII (SGB XII):
No discrimination against disabled people with separate rental agreements and those who live rent-free in their parents' house for financial reasons (e.g., dropping out of education), according to the association Tacheles e. V.
1. If adult disabled recipients of social assistance who are unable to work live rent-free with their parents for financial reasons, they can claim the actual expenses for accommodation and heating up to the amount that is reasonable for a single-person household (§ 42a para. 4 sentence 2 SGB XII). Note: Tacheles e. V.
Social assistance:
The association Tacheles e. V. welcomes the decision of the 9th Senate of the LSG NRW, as this counteracts a threatened discrimination against disabled people!
Adults with intellectual disabilities are also entitled to benefits for accommodation and heating when living with their parents in their single-family home or in an apartment!
There must be no discrimination against disabled people when job centers and social welfare offices grant housing costs, according to the association Tacheles, led by Harald Thome. Housing costs shared between close relatives are not grounds for unequal treatment, Tacheles e.V. stated.
Guiding principle of the Tacheles Association e. V.
1. It is possible for a child with a disability to conclude a valid tenancy agreement with their parents, specifically renting certain portions of the total living space and thereby being considered a single-person household. Only this possibility counteracts the otherwise imminent discrimination against people with disabilities (cf., regarding a similar situation, the Senate's judgment of April 7, 2022 – L 9 SO 139/21 – Assumption of actual accommodation costs with a separate tenancy agreement within the framework of an assisted living community – published in the Tacheles Case Law Bulletin, Week 30/2022).
Guideline of Tacheles e. V.
1. A recipient of basic income support in old age and in case of reduced earning capacity who lives in a multi-person household with family members can claim higher actual accommodation costs – up to the amount that is appropriate for a single-person household, provided they have and can prove effective contractual agreements regarding this (cf. Federal Social Court judgment of 23.03.2021 – B 8 SO 14/19 R).
2. The fact that the landlords are the parents of the adult recipient does not preclude the application of Section 42a Paragraph 4 Sentence 2 of the German Social Code, Book XII (SGB XII).
3. For the application of Section 42a Paragraph 4 Sentence 2 of the German Social Code, Book XII (SGB XII), it is sufficient that the person entitled to benefits has concluded a separate tenancy agreement with the landlord of the apartment or another tenant regarding the rooms assigned to them exclusively for their use and the jointly used rental area (Bundestag Printed Matter 18/9984, p. 94). This is the case here. The plaintiff has rented 2.5 rooms and a bathroom in his parents' house and is entitled to use the common areas.
4. The proportionality test does not require a request to reduce costs. It must also be carried out if the accommodation costs – as in this case – are reasonable and therefore cannot be reduced. Beyond its literal wording, the provision also applies if the other residents are not tenants, but, as here, owners of the accommodation (Judgment of the Senate of April 7, 2022 – L 9 SO 139/21).
Source: www.justiz.nrw.de
Note from Tacheles e. V. regarding the German Social Code, Book II (SGB II):
A provision like the one in Section 42a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII) does not exist in the German Social Code, Book II (SGB II).
Under the German Social Code, Book II (SGB II),
if an employable person entitled to benefits does not live with other persons in a household unit, the determination of reasonable accommodation expenses according to the product theory must focus solely on him as an individual (Federal Social Court ruling of 25 April 2018 – B 14 AS 14/17 R -).
Tacheles e. V.'s comment on this ruling:
The association Tacheles e. V. welcomes the decision of the 9th Senate of the LSG NRW, because still and far too often, people in need of help, the sick and even the mentally disabled – as happened here – are accused of a “sham transaction”.
The authorities still maintain that this is an attempt to fraudulently obtain social benefits.
But that is completely illegal, says the association Tacheles, because it must be determined on a case-by-case basis.
In the German Social Code, Book XII (Social Assistance), the legislator created Section 42a Paragraph 4 Sentence 1 and Section 42a Paragraph 4 Sentence 2 specifically for this purpose, effective January 1, 2024.
Abuse control is ensured by the fact that, according to Section 42a Paragraph 4 Sentence 2 Half-Sentence 2 of the German Social Code, Book XII (SGB XII), the actual expenses for accommodation and heating are to be recognized as a need up to the amount that is reasonable for a one-person household, provided that the rent to be paid by the person entitled to benefits is in reasonable proportion to the total rent. The provision thus requires that the costs be reasonable for a one-person household and that the rent be in reasonable proportion to the total expenses.
The still outdated view held by social welfare authorities and job centers:
The line of reasoning: "If the authority doesn't pay, then the applicant in need can't pay the rent, then it's a sham transaction and then the authority won't pay," is a complete fallacy, says Tacheles e. V.!
We condemn this in the strongest possible terms!
A sham transaction cannot be justified on the grounds that the person in need of assistance cannot pay the rent from their own resources, because this is regularly part of the need for assistance (Bavarian State Social Court, judgment of May 19, 2011 – L 7 AS 221/09). It is irrelevant whether a person in need of assistance will be able to pay the rent from their own resources.
On the contrary: The person concerned applies for benefits because he is in need of assistance and cannot secure his subsistence minimum, including rent, himself (BSG, judgment of 03.03.2009 – B 4 AS 37/08 R).
Those affected should contact unemployment associations, lawyers, or even the Tacheles association – they will be happy to help, because we stand for justice for everyone!
Legal tip regarding the German Social Code, Book II (SGB II) (the statements made there also apply to the German Social Code, Book XII (SGB XII)) from the association Tacheles e. V.:
Hamburg Higher Social Court, judgment of 06.08.2020 – L 4 AS 49/19 –
Actual expenses for housing that are to be covered by the basic income support provider within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), do not only exist if the person in need has already paid the rent. It is sufficient if the person in need is subject to a valid and not permanently deferred rent claim during the respective benefit period.
If, in the case of a termination of a tenancy agreement between close relatives, the tenant is not required to vacate the apartment due to education or illness, this does not affect the assumption of accommodation costs by the basic income support provider.
We recall: Accessibility in job centers:
Data protection is not a reason for unequal treatment – Hamburg Social Court, Judgment of June 30, 2023 – S 39 AS 517/23 (Tacheles Case Law Ticker Week 34/2023 – Barrier-free access to notices for blind and visually impaired recipients of citizen's allowance (Tacheles e. V.))
5. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Federal Social Court ruling on the priority of state-level burial obligations in the case of disclaimer of inheritance
Editorial team eGovPraxis Social Welfare
The Federal Social Court (BSG) had to deal with the question of whether the disclaimer of inheritance by a person who is primarily obligated to arrange the funeral under state law releases them from their obligation.
More information: www.wolterskluwer.com
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
