1. Decisions of the Federal Social Court on basic income support/citizen's allowance (SGB 2) and on asylum seeker benefits law
1.1 – BSG, judgment of 02/28/2024 – B 4 AS 22/22 R
Basic income support for job seekers – consideration of income – proceeds from sale – fund units – protected assets – asset restructuring
Federal Social Court ruling on the proceeds from the sale of fund units and the question of whether the proceeds constitute income like interest or merely a reallocation of assets.
Guiding principle of the Tacheles e. V. association.
1. The proceeds from the sale of fund units that are considered protected assets during the approval period are not to be taken into account as income, but are merely a reallocation of assets.
2. The taxation of capital gains is irrelevant for the purposes of distinguishing between income and assets under social security law.
Source: www.bsg.bund.de
1.2 – BSG, judgment of 02/28/2024 – B 4 AS 18/22 R
Basic income support for job seekers – Housing and heating costs – Berlin – 2012 – 2013 – Adequacy assessment – Reasonableness – Relocation
Federal Social Court ruling on cost reduction requests for accommodation and heating costs:
Job centers are only required to point out that the gross rent including utilities is reasonable
Guiding principle of the Tacheles e. V. association:
1. Job centers, when requesting cost reductions, must only refer to a gross rent including utilities that the benefit provider considers appropriate, without differentiating between basic rent, "cold" ancillary costs and heating costs.
2. The dispute as to whether the assessment of the appropriateness of the accommodation costs made by the benefit provider is correct is, in principle, to be resolved by considering which expenses are appropriate within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (BSG case law).
Guideline of the Tacheles Association e. V.
1. A cost reduction request within the meaning of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), as a basis for rejecting the assumption of actual heating costs as unreasonable, meets the requirements of the Federal Social Court (BSG) if the basic income support provider merely refers to the gross rent including heating costs that it considers reasonable, without differentiating between basic rent, "cold" ancillary costs and heating costs, and the request does not otherwise contain any further explanations as to whether the expenses are considered unreasonable due to the costs of accommodation and/or heating costs.
Source: www.bsg.bund.de
1.3 – BSG, judgment of 02/28/2024 – B 4 AS 19/22 R
Basic income support for job seekers – needs for accommodation and heating – Berlin – 2013 – Adequacy assessment – Reasonableness – Relocation
Federal Social Court ruling on cost reduction requests for accommodation and heating costs:
The plaintiffs withdrew their appeals after the judgment in case B 4 AS 18/22 R was announced.
1.4 – BSG, judgment of 02/29/2024 – B 8 AY 3/23 R
Asylum seeker benefits law – inpatient psychiatric treatment – benefits in case of illness – other benefits to safeguard health
Regarding the question of the indispensability of other services to safeguard health (here: inpatient hospital treatment) within the meaning of Section 6 Paragraph 1 Sentence 1 Alternative 2 AsylbLG.
Regarding the question of whether the costs for treatment in a psychiatric clinic are reimbursable as medical expenses under the Asylum Seekers' Benefits Act.
Federal Social Court ruling: Asylum seekers with severe mental illness must be helped.
Asylum seekers suffering from mental illness and trauma must be able to receive medical help in cases of acute need. If a severe depression with a risk of suicide is present, social welfare agencies must pay for urgently needed inpatient therapy as an "acute illness.".
Continue reading at www.evangelisch.de
2. Decisions of the State Social Courts on Basic Income Support/Citizen's Allowance (SGB II)
2.1 – LSG Hessen, Judgment of 05.02.2024 – L 6 AS 125/23 – Appeal allowed – Copyright protection
Citizen's income/basic income support: Section 22 Paragraph 7 SGB II
Regarding the question of whether the decision on the direct payment of the costs of accommodation (§ 22 para. 7 SGB II) must be made by issuing an administrative act or whether only an informational letter is required?
Guiding principle of the Tacheles e. V. association:
1. Information about the direct payment of accommodation costs must be provided – not in the form of an administrative act.
2. The decision regarding the direct payment of housing costs does not need to be made by issuing an administrative act; an informational letter from the authority is sufficient, according to the 6th Senate of the Hessian State Social Court, as this question is controversial in case law and legal literature, according to the association Tacheles e. V.
Guideline of Tacheles e. V. (Copyright Protection)
1. The legal question of whether a direct payment to a landlord or a third party must be decided by administrative act has not been definitively settled by the highest court; it was left open by the Federal Social Court (see Federal Social Court, judgment of August 9, 2018 – B 14 AS 38/17 R). It is assessed differently in legal literature and case law.
2. LSG Hessen: The decision on the direct payment of the costs of accommodation does not have to be made by issuing an administrative act; an informative letter from the authority is sufficient.
Guiding principles www.sozialgerichtsbarkeit.de
To notify the benefit recipient that the direct payment of housing and heating costs to the landlord is made in accordance with Section 22 Paragraph 7 Sentences 2-4 of the German Social Code, Book II (SGB II), due to the unrestricted use of funds, an informational letter from the authority is sufficient. A formal administrative act is not required.
Legal tip from Tacheles e. V.:
for the VA: Luthe in: Hauck/Noftz SGB II, 1st supplementary delivery 2024, § 22 SGB 2, para. 387; Piepenstock in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 22 (as of February 6, 2023), para. 260); contra: SG Darmstadt, decision of January 17, 2014 – S 19 AS 6/14 ER; Berlit, in: Münder, LPK-SGB II, 8th ed. 2024, § 22 para. 294; Kallert, in: BeckOGK, as of December 1, 2019, SGB II preliminary remarks before § 39 preliminary legal protection in the law of basic income support for job seekers, para. 22; Leaving open: BSG, Judgment of August 9, 2018 – B 14 AS 38/17 R -.
Recommended reading from Tacheles e. V.: Tacheles Case Law Ticker Week 50/2023
LSG NRW, Decision of 25.05.2023 – L 2 AS 484/23 B –
Guiding principle by the editor of Tacheles e. V.
1. Is the decision regarding the payment of monetary benefits for accommodation and heating costs to the landlord a regulation in the sense of an administrative act or merely an informational notification to the beneficiary?
2. This is certainly controversial. The wording of the law does indeed suggest a mere notification without regulatory character.
3. However, according to the prevailing opinion in case law and legal commentary, this was not merely a notification, but a decision by administrative act (see, for example, Krauß in Hauck/Noftz, Sozialgesetzbuch SGB II, as of Supplementary Delivery 1/21, § 22 Rn. 387, and Luik in Eicher/Luik/Harich, SGB II, 5th ed. 2021 § 22 Rn. 312, each with references to case law).
Note from Tacheles e. V.:
a. Opinion:
1. LSG NRW, judgment of October 28, 2022 – L 21 AS 188/22, Rz. 37:
Regardless of how the decision is presented, payment to a third party constitutes an infringement of the recipient's right to dispose of the benefits granted to them and thus a burdensome regulation of the individual case, which has the quality of an (independent) administrative act within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (Piepenstock, in: jurisPK-SGB II, Section 22 (as of 12 January 2022) para. 263; Higher Social Court of North Rhine-Westphalia of 20 February 2019 – L 7 AS 2024/18 B).
2. Regarding the administrative act: Bavarian State Social Court, judgment of August 5, 2015, L 7 AS 263/15 -, Social Court Munich, judgment of October 25, 2018 – S 52 AS 405/17-
3. Similar view: regarding an informational letter from the authority, see also the Darmstadt Social Court, judgment of March 3, 2023 – S 33 AS 1201/19 – and concurring: Hesse Higher Social Court, judgment of February 5, 2024 – L 6 AS 127/23 –
2.2 – LSG Berlin-Brandenburg, judgment of November 29, 2023 – L 9 AS 316/22
Citizen's allowance: Exclusion from benefits under Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II)
Entitlement of Austrian citizens to basic income support benefits under the German-Austrian Welfare Agreement (Tacheles e. V.)
Guiding principles:
Austrian nationals can invoke the principle of equal treatment under Article 2 Paragraph 1 DÖFA (juris: FürsAbk AUT) against the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 SGB II.
Source: www.socialgerichtsabilities.de
Legal tip from Tacheles e. V.:
This is apparently the prevailing opinion in recent higher court rulings; see, with detailed reasoning, Hessian State Social Court, judgment of September 15, 2021, L 6 AS 316/17; Saxony-Anhalt State Social Court, decision of August 24, 2021, L 2 AS 409/21 B ER; Berlin-Brandenburg State Social Court, judgments of June 8, 2020, L 18 AS 1641/19, and of May 11, 2020, L 18 AS 1812/19; contra Leopold in: Schlegel/Voelzke, jurisPK-SGB II, § 7 SGB II, as of August 9, 2023, para. 118 ff.).
2.3 – LSG Saxony-Anhalt, decision of 31.01.2024 – L 2 AS 416/21
Social court proceedings – Basic income support for job seekers – Income assessment – Inclusion of a new decision – Maintenance payments
Principle
1. A final assessment and reimbursement order issued in legal proceedings against a provisional grant pursuant to Section 41a Paragraph 3, Paragraph 6 Sentence 3 of the German Social Code, Book II (SGB II), becomes the subject of the court proceedings in its entirety pursuant to Section 96 of the German Social Courts Act (SGG). In this respect, the same applies as in the case of a combined revocation and reimbursement order (see Federal Social Court, Judgment of September 3, 2020, B 14 AS 55/19 R, juris para. 10 et seq.).
2. The consideration of payments for child support as a deduction from income (§ 11b para. 1 sentence 1 no. 7 SGB II) requires a legally established claim; this also applies if the child lives abroad.
Source: www.socialgerichtsabilities.de
2.4 – LSG Hessen, decision of 06.02.2024 – L 6 AS 413/23 B ER
Guiding principles
1. A renewal application and subsequent administrative act have a break-effect, which is why the inclusion of a subsequent approval period in expedited proceedings is regularly not appropriate within the meaning of Section 99 Paragraph 1 of the Social Court Act (SGG).
2. If it is questionable whether an address provided by the applicant meets the requirements for a valid address for service of process, and the applicant has no other address, the principles developed for homeless persons shall apply accordingly with regard to the admissibility of the proceedings.
3. A formal illegality due to a lack of a hearing does not lead to the success of an application for preliminary legal protection if rectification is still possible. This is because there is no definitive violation of rights and also no sufficient prospect of success in the main proceedings.
4. Time-consuming investigations, such as those concerning the connection between benefit recipients and companies based abroad, remain reserved for the main legal remedy.
Source: www.socialgerichtsabilities.de
2.5 – LSG Saxony-Anhalt, Judgment of 16.11.2023 – L 5 AS 358/22
Guiding principles
1. On the possibility of imposing a sanction amounting to 30% of the standard rate on employable benefit recipients who have not yet reached the age of 25 (§ 31a para. 2 SGB II aF).
2. Instruction on the legal consequences of breaches of duty is correct and fulfills its function insofar as it informs the beneficiary of the reduction of the standard benefit rate to the extent intended by the authority.
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Hildesheim, judgment of November 23, 2023 – S 36 AS 1541/19 –
Citizen's allowance: Repair costs § 22 para. 1, para. 2 SGB II – Copyright protection
Is the job center obligated to cover the costs of roof repairs for a garden shed located on the owner's own property?
Jobcenter must pay for repairs to a garden shed located on the owner-occupied property, § 22 para. 2 SGB II (Verein Tacheles e. V.).
Guiding principle of the Tacheles e. V. association:
1. Maintenance costs for a roof repair of a garden shed on the owner-occupied property are housing costs for recipients of citizen's allowance, provided they are reasonable.
2. Equal treatment of owners and tenants when considering accommodation expenses.
Guideline of Tacheles e. V.
1. Repair costs for the roof of the garden shed are corresponding repair costs within the meaning of § 22 para. 1, para. 2 SGB II (concluded from BSG, judgment of 07.07.2011 – B 14 AS 51/10 R -).
2. The costs for the necessary repair of the roof of the garden shed fall under the category of eligible expenses for calculating income from renting and leasing, as so-called maintenance expenses.
3.2 – Social Court Berlin, Judgment of 17 January 2024 – S 174 AS 4184/23 – Direct appeal to the Federal Social Court is granted – Second instance pending before the Higher Social Court of Berlin-Brandenburg – L 18 AS 147/24 – Copyright protection
Operating cost credit; inflow; increase in value; due date of the operating cost credit; realization; tenant account
Citizen's allowance: Section 22 Paragraph 3 SGB II – Crediting of ancillary cost credits, operating cost credits
Regarding the question of the relevant point in time for the crediting of ancillary cost credit
Guideline of the Tacheles e. V. association:
1. In the event of a refund of the credit balance, the relevant month is the month of payment and not the month in which the statement of account was issued (and/or the date the credit was posted to the tenant's account). Only upon posting to the current account is the inflow considered eligible for assessment.
Guideline of the Tacheles e. V. association:
1. When crediting ancillary cost credits and operating cost credits, neither the time of preparation of the operating cost statement nor the time of receipt of the operating cost statement nor the time of posting in the tenant's account is relevant.
2. In the following scenarios (according to the 174th Chamber of the Social Court of Berlin):
a request by the landlord to offset the amount against the next rent payment, a request for the tenant to provide their account number for the purpose of disbursing the credit balance, or direct disbursement of the credit balance to the tenant's current account by the landlord, the decisive factor is the point in time when the credit is posted to the tenant's current account or when the tenant actually offsets the amount against the current rent.
SG Berlin: Orientation aid association Tacheles e. V.
1. With regard to the crediting of the balance, neither the time of preparation of the operating cost statement nor the time of receipt of the operating cost statement nor the time of posting in the tenant's account (as held by: LSG Berlin-Brandenburg, judgment of 02.06.2020, L 28 AS 1466/14; LSG Berlin-Brandenburg, judgment of 27.01.2020, L 31 AS 1871/19 -) is relevant.
2. In the case of a refund of a credit balance, the calculation is based on the month of payment and not on the month the statement of account was prepared (and/or the date the credit was posted to the tenant's account)
3. The credit balance was not to be taken into account in the month following its entry in the tenant's account, but only upon its crediting to the current account.
Source: www.socialgerichtsabilities.de
Note: Guiding principle:
A credit balance in utility costs does not constitute income received either upon receipt of the utility bill or upon posting to the tenant's account. If the credit balance is paid into the recipient's current account, the relevant inflow only occurs upon posting to that account.
A credit balance in utility costs is not readily available as funds simply because it can be realized without further ado (cf. Federal Social Court [BSG] judgment of August 19, 2015 – B 14 AS 43/14 R; para. 18: deviating from Federal Social Court [BSG] judgment of May 16, 2012 – B 4 AS 132/11 R, para. 25).
Legal tip from the Tacheles association:
SG Neubrandenburg, judgment of 10 January 2011, S 11 AS 386/08 – already went in this direction
The mere internal recording of the tenant's/person in need of assistance's claim for reimbursement as a "credit entry" in the tenant's account is not a "credit note" because it is merely a recording of a balance item in the accounting system, which the person in need of assistance cannot actually access and over which they cannot freely dispose.
3.3 – Social Court Munich, Judgment of 25 October 2018 – S 52 AS 405/17
Accommodation costs, conclusive concept according to § 22 para. 1 SGB II affirmed
Source: www.socialgerichtsabilities.de
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – SG Gießen, Judgment of 19.02.2024 – S 20 AL 72/23
Guiding principles
1. The request by the Federal Employment Agency to submit correction applications in the procedure for the final approval of short-time work compensation is not an administrative act due to the lack of regulatory effect.
2. If, however, the letter of demand includes information on legal remedies, the plaintiff may appropriately challenge this by filing an action for annulment.
3. Proceedings in which the scope of the employer's obligation to provide evidence in proceedings for the approval of short-time work compensation is disputed are free of court fees. No value in dispute is to be determined.
Source: www.socialgerichtsabilities.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG Mecklenburg-Vorpommern, decision of 10 January 2024 – L 9 SO 30/23 B ER
Guiding principle
: In preliminary legal protection proceedings – taking into account the cost allocation directive due to the separate jurisdiction between health and long-term care insurance in the case of uniform service provision – the time share of the care services must be multiplied by an hourly cost rate within the framework of the balancing of consequences, based on the legal question that has not yet been clarified by the highest court, in order to then compare this with the lump-sum benefit of the long-term care insurance fund.
Source: www.landesrecht-mv.de
5.2 – LSG Baden-Württemberg, decision of 11.01.2024 – L 7 SO 3301/23 B
Guiding principles:
Documents transmitted via email-to-fax do not comply with the written form requirement if the document only shows the sender's email address but not their fax number.
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Social Court Heilbronn – Decision of 21 February 2024 – File No.: S 16 AY 76/24 ER
Legal norms: Section 1a AsylbLG, Section 86b Paragraph 2 Sentence 2 SGG – Keywords: Benefits under Section 1a AsylbLG, expedited proceedings, cost decision, Heilbronn Social Court
Continued with attorney Sven Adam
7. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Is this the start of the next outrageous move by the traffic light government?
Disability pension: Timely legal reform fails again due to IT issues
Those receiving a reduced earning capacity pension were supposed to be better off from July 1, 2024, provided certain conditions were met. However, the reform's timely implementation is not happening: once again, IT is to blame. According to a media report, the German Federal Pension Insurance (DRV) is overwhelmed by the implementation.
As reported by the Handelsblatt newspaper on Friday, the German Federal Pension Insurance Fund (DRV) is unable to implement the reform by the planned date. According to the report, the Federal Ministry of Labor and Social Affairs, headed by Hubertus Heil (SPD), is planning an alternative two-stage procedure to ensure the promised supplements can still be paid out by mid-year. This information comes from a drafting aid for a bill that the ministry has sent to its coalition partners.
the effort underestimated?
The Federal Court of Auditors has already warned of a collapse.
Shortly before the turn of the year, the Federal Court of Auditors had already warned that the inadequate digital equipment of the German Pension Insurance was jeopardizing its functioning.
Continue reading: www.versicherungsbote.de
The German Pension Insurance also comments on this: www.ihre-vorsorge.de and here: www.deutsche-rentenversicherung.de
In line with this:
Starting in March, civil servants will receive more money, with salaries and pensions increasing. The federal government and the Federal President are also enjoying pay raises. Here's how much more the Chancellor, ministers, and Frank-Walter Steinmeier will earn.
Continue reading: www.focus.de
Note:
The main thing is to line their own pockets, no guilty conscience?
The association Tacheles e. V. believes that foregoing the increase in this truly dire situation would send a positive signal!
Related to this: Record increase for the Federal President, Chancellor, and others: More money for politicians, less for pensioners
Read more: www.berliner-zeitung.de
Note:
Our politicians need a salary freeze; they must lead by example, but are they actually doing so?
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
