Tacheles Legal Case Law Ticker Week 20/2024

1. Decisions of the Federal Social Court on social assistance (SGB XII)

1.1 – Federal Social Court (BSG), Judgment of May 8, 2024 – B 8 SO 4/23 R – Lower court: Higher Social Court of North Rhine-Westphalia (LSG NRW), Judgment of February 16, 2023 – L 9 SO 387/21 – in Tacheles Case Law Ticker Week 37/2023

Social assistance – home care – care allowance – caregiver – receipt of old-age pension – pension insurance – contributions – compulsory insurance

For the reimbursement of expenses for a caregiver's contributions to adequate old-age security in accordance with Section 64f Paragraph 1 of the German Social Code, Book XII (SGB XII)

BSG: Federal Social Court announces when pension contributions must be covered in cases of family caregiving

1. The decisive factor in the case of assistance for care as a social assistance benefit is whether, based on a prognostic assessment of the circumstances known at the relevant assessment date, it can be expected that the caregiver will not have to claim basic income support in old age.

2. If the caregiver lives in a marriage or a marriage-like partnership, the level of security already achieved by the partner must also be taken into account.

3. The decisive factor for the claim in the present case is therefore whether the expected old-age security of the daughter and her husband is above the current level of basic income support in the amount of the relevant standard benefit rate, the costs for accommodation and heating and any additional needs.

Source: www.bsg.bund.de

Note: www.evangelisch.de
1. Social welfare providers are only required to pay limited pension contributions for the old-age security of family caregivers. If the person requiring care is not covered by statutory long-term care insurance, the caregiver can only receive pension contributions if they are expected to receive a pension higher than the basic social security level and no other adequate old-age security exists.

2. The legislator promotes home care provided by family members or other non-professional caregivers by allowing the person in need of care to request that the social welfare agency cover pension contributions for the caregiver. A prerequisite for this is that the person has at least care level 2 and is not building up any other form of old-age provision.

3. Long-term care insurance usually covers the contributions. If the person requiring care is not covered by long-term care insurance, the social welfare agency may be obligated to cover the pension contributions. This is particularly possible for those who are unable to work or who come from abroad.

1.2 – Federal Social Court (BSG), Judgment of 08.05.2024 – B 8 SO 18/22 R – Lower court: Higher Social Court of North Rhine-Westphalia (LSG NRW), Judgment of 08.09.2022 – L 9 SO 403/20 – in Tacheles Case Law Ticker Week 49/2022

Social assistance – accommodation costs – accessible housing – additional costs – per capita principle – definable need

Is an exception to the headboard principle justified if one of the residents is dependent on the use of a wheelchair and therefore requires an accessible apartment?

Federal Social Court (BSG): Social welfare provider not required to fully cover costs for accessible housing – No flat-rate increase in accommodation costs when living with non-disabled tenants

1. No deviation from the so-called head-share principle, because despite the plaintiff's disability-related needs, there was no different intensity of use with regard to the apartment; rather, she and her son used the apartment to the same extent.

2. However, in the present case, dividing the costs equally is also suitable for distinguishing the needs of the person entitled to basic income support from the needs of the roommate.

Source: www.bsg.bund.de

Note: www.evangelisch.de
1. Social assistance does not have to cover the full amount of the rent for an accessible apartment if there are also non-disabled tenants living in the apartment.

2. If a wheelchair user shares barrier-free accommodation with her non-disabled adult son, she cannot claim a higher share of the accommodation costs from social assistance on the grounds of the barrier-free furnishings.

1.3 – Federal Social Court (BSG), Judgment of 08 May 2024 – B 8 SO 3/23 R – Lower court: Higher Social Court of North Rhine-Westphalia (LSG NRW), Judgment of 15 December 2022 – L 9 SO 240/21 – in Tacheles Case Law Ticker Week 42/2023

Social assistance – School route – Disability – Integration assistance – Participation in education

Can a disabled student who is unable to manage their own journey to school still reasonably be expected to be driven to school by their parents in a car, even for the purpose of attending a secondary school?

Federal Social Court: Severely disabled student fights for taxi transport to high school – Federal Social Court affirms entitlement to taxi fares as integration assistance for participation in education

Guiding principle of the Tacheles e. V. association:
1. If students with walking disabilities cannot get to school otherwise, social assistance must also pay for their taxi rides.

2. School attendance is part of the right to participate in education, for which the authorities must provide support through integration assistance, regardless of the parents' income.

Guidance from the Tacheles Association e. V.
1. The costs for the journey to school are not services that fall solely under the responsibility of the school authority as a so-called core area of ​​educational activity. The education and participation packages provided for by law under SGB II (Social Code Book II) and Chapter 3 of SGB XII (Social Code Book XII), which also include benefits for students who are financially dependent on school transport to reach the nearest school offering their chosen educational program, do not preclude integration assistance benefits.

2. They only cover school travel expenses that are not due to a disability, but rather, for example, due to a large distance between home and school. Benefits required to compensate for specific disability-related disadvantages in participating in education are not covered.

3. The parents will neither be burdened with these additional costs nor can they be required to carry out the transport themselves.

2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)

2.1 – LSG BB, Judgment of 20 March 2024 – L 18 AS 358/23 WA – published on www.sozialgerichtsbarkeit.de

Withdrawal of benefit approval for the past – exclusion from benefits when receiving an old-age pension – Russian old-age pension – reimbursement claim of the basic income support provider against the social assistance provider

Citizen's allowance: Receipt of an old-age pension (AR) from the Pension Fund of the Russian Federation leads to exclusion from citizen's allowance (according to § 7 para. 4 SGB II).

Guiding principle of the Tacheles Association e. V.
1. The benefit only needs to be designed in such a way as to generally guarantee the maintenance of the beneficiary (cf. generally BSG, judgment of December 8, 2022 – B 7/14 AS 11/21 R; in detail regarding the Russian old-age pension cf. LSG Saxony-Anhalt, judgment of November 26, 2020 – L 4 AS 173/18 ZVW; LSG for the State of North Rhine-Westphalia, judgment of November 22, 2018 – L 19 AS 2281/16).

2. In a reimbursement relationship, unlike in a benefit relationship, a social welfare provider cannot be credited with the knowledge of another benefit provider.

2.2 – LSG NRW, Judgment of 29.06.2022 – L 12 AS 1640/21 – published on www.sozialgerichtsbarkeit.de

Citizen's allowance: Section 22 Paragraph 1 SGB II – Heating costs – Requirements for the reimbursement of electricity costs for a portable electric radiator

Guideline of the Tacheles Association e. V.:
1. The costs for operating a mobile electric radiator must be proven by the recipient of citizen's allowance.

2. Heating costs are deemed unreasonable and therefore not reimbursable if, in the case of proper and economical heating, they do not appear necessary in principle or in amount in the individual case (cf. BSG judgment of 19.09.2008, B 14 AS 54/07 R).

3. The court sees no need to heat the entrance area and kitchen, especially at night, because it is colder at night and the applicant, among other things, watches music programs at the specified times, leaving the apartment doors open for his cat's sake. He can reasonably be expected to close the door to the room heated by the gas central heating system when spending his time there in the late evening and at night. He must also be prepared to keep his cat either in this room or in the rest of the apartment.

2.3 – On the question of whether a training trip of the football club can be considered as a need for education and participation in accordance with Section 28 Paragraph 7 Sentence 2 SGB II a. F., if the activity of the training is already being promoted in accordance with Section 28 Paragraph 7 Sentence 1 No. 1 SGB II.

Citizen's allowance:
Section 28 Paragraph 7 Sentence 2 SGB II (in the version applicable until July 31, 2019)

Reimbursement of costs for participation in a multi-day club trip – accommodation and meal costs

1. Is the Job Center obligated to cover not only the monthly club fees but also the accommodation and meal costs incurred during a multi-day training trip for the football club?

2. Are children of recipients of citizen's allowance entitled to further educational and participation benefits from the Jobcenter under the German Social Code, Book II (SGB II), to finance a multi-day club trip, or must the parents pay the costs from their standard benefits?

The court ruled as follows: Prepared by the association Tacheles e. V. – Copyright protection

Guiding principle of the Tacheles e. V. association:
1. The accommodation and catering costs incurred for a multi-day club trip of the football club constitute, in addition to the monthly club fees, further actual expenses that can be taken into account in accordance with Section 28 Paragraph 7 Sentence 2 SGB II (in the version of May 7, 2013, valid until July 31, 2019).

2. Similar to the equipment items explicitly mentioned in the explanatory memorandum to the law, accommodation and meal costs are related to the training. These are additional expenses necessary for participation in the training event (see Leopold/Buchwald in: Schlegel/Voelzke, jurisPK-SGB II, 5th edition, as of February 2, 2023, § 28, para. 205).

Note from Tacheles e. V.:
The legal situation changed significantly on August 1, 2019. The explanations regarding the interpretation of Section 28 Paragraph 7 Sentence 2 (old version), particularly from a systematic perspective, are likely subject to a substantial change in argumentation due to the now more open wording of Section 28 Paragraph 7 Sentence 1 No. 1. Firstly, according to the new regulation in Sentence 1 No. 1, "activities in the areas of sport, games, culture, and social activities" are now eligible for funding, whereas under the version applicable to the present legal dispute until July 31, 2019, "membership fees in the areas of sport, games, culture, and social activities" were eligible for funding.

We know from experience that job centers often refuse to cover the costs of club trips or training camps, or offer a loan instead. Even though each case is unique, these rejections should be challenged by filing an objection or a review application under Section 44 of the German Social Code, Book X (SGB X).

Educational and participation opportunities must actually be accessible to those in need without additional costs.

In light of the constitutional requirements for establishing an independent entitlement to educational support services and the intended goal of integrating all children into community events, it cannot be assumed that the exclusion of reimbursement for expenses related to a training trip was intentional. Rather, the legislature aimed to comprehensively ensure the material basis for equal opportunities (cf. regarding school trips: Federal Social Court, judgment of March 8, 2023 – B 7 AS 9/22 R).

The ruling applies not only to training trips or club trips or training camps of football clubs, but also to amateur sports (football, handball, basketball, swimming, cycling, etc.)!

3. Decisions of the State Social Courts on Employment Promotion Law (SGB 3)

3.1 – LSG BB, Judgment of 20 March 2024 – L 18 AL 5/22 – published on www.sozialgerichtsbarkeit.de

A multi-week trip to the Caribbean results in the loss of unemployment benefit (ALG 1) – Unauthorized vacation results in the loss of unemployment benefit (ALG 1)

Guiding principle of the association Tacheles e. V.
1. Absence from one's place of residence for more than six weeks leads to the loss of entitlement to unemployment benefit I.

2. An expansive interpretation of the hardship clause of the EAO (Employment Assistance Ordinance) is not persuasive because this decision expressly holds that the time limitation of Section 3 Paragraph 3 of the EAO is only not applicable by analogy in basic income support law (cf. Social Court Berlin, judgment of August 21, 2013 – S 205 AS 5324/11 – Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), in its version valid until December 31, 2010, is to be interpreted restrictively if it is objectively impossible for the beneficiary to return from abroad and actively participate in integration services. In this case, the time limitation of Section 3 Paragraph 3 of the Accessibility Order (juris: ErreichbAnO) is not applicable by analogy in the scope of application of the SGB II).

Legal tip from the association Tacheles e. V. regarding the German Social Code, Book II (SGB II):
1. Social Court Augsburg, April 14, 2016 – S 8 AS 267/16 – No revocation of benefit approval during a stay abroad to care for a close relative

2. LSG Hessen, judgment of 03/29/2017 – L 6 AS 334/16 –

1. If an application is submitted under the German Social Code, Book II (SGB II) for an employable person in need of assistance who is habitually resident in Germany and who has not previously received benefits under the SGB II, and the person concerned is abroad at the time of the application, the application nevertheless has retroactive effect to the first of the month pursuant to Section 37 Paragraph 2 Sentence 2 of the SGB II.

2. If the person concerned returns to Germany in the calendar month of application, Section 7 Paragraph 4a SGB II aFiVm Section 3 EAO does not preclude an entitlement to benefits for the entire calendar month of application, regardless of whether the job center gives its consent for the remaining duration of the stay abroad in the calendar month of application.

Legal advice from the association Tacheles e. V. regarding the German Social Code Book III (SGB III):

1. SG Stuttgart, judgment of April 22, 2021 – S 16 AL 6336/18 –

1. If an unemployed person is absent from their place of residence before their period of unemployment, they do not need to obtain approval if the absence from their place of residence does not extend into the period of unemployment.

2. However, consent must be obtained if the return journey was planned before the period of unemployment but is not possible in time due to illness. In this case, consent must be obtained as soon as the unemployed person becomes aware that they will not be able to return in time.

3. Section 146 of the German Social Code, Book III (SGB III) applies not only when the unemployed person becomes ill at a time when, with the consent of the employment agency, he is staying outside the local area, but also when consent was not required (because he was staying outside the local area before his unemployment and planned his return before the start of unemployment), but a return trip was not possible due to illness before the start of unemployment.

2. Stuttgart Social Court, Judgment of 28 February 2020 – S 3 AL 3965/19 – Unemployment benefits also in case of illness abroad

Further information can be found at www.anwalt.de:
Attorney Christian Wagner and here: www.expat-news.com

4. Decisions of the State Social Courts on Social Assistance (SGB XII)

4.1 – SG Lüneburg, Decision of 08.02.2024 – S 38 SO 6/24 ER

5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)

5.1 – Stuttgart Social Court – Decision of April 17, 2024 – Case No.: S 11 AY 107/23 ER

Legal norms: Section 3 Asylum Seekers' Benefits Act (AsylbLG), Section 3a AsylbLG, Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Standard benefit level 1, Standard benefit level 2, Benefits according to Sections 3, 3a AsylbLG, Costs after settlement by departure, Stuttgart Social Court

Continued with attorney Sven Adam

5.2 – Social Court Heilbronn – Decision of 29 April 2024 – Case No.: S 16 AY 655/24 ER

Legal norms: Section 2 Asylum Seekers' Benefits Act (AsylbLG), Section 86a Social Court Act (SGG) – Keywords: expedited proceedings, analogous benefits, alleged deception regarding date of birth, Heilbronn Social Court

Attorney Sven Adam

5.3 – Social Court Magdeburg – Decision of 26 April 2024 – Case No.: S 25 AY 24/24 ER

Legal norms: Section 3 AsylbLG, Section 3a AsylbLG, Section 86b Paragraph 2 Sentence 2 SGG – Keywords: Standard benefit level 1, Standard benefit level 2, Benefits according to Sections 3, 3a AsylbLG, Magdeburg Social Court

Guideline of Tacheles e. V.
1. Granting of benefits in accordance with §§ 3, 3a AsylbLG in the standard benefit level 1.

2. The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (Federal Constitutional Court of 19 October 2022 – 1 BvL 3/21).

3. The Chamber is convinced that this consideration of the Federal Constitutional Court must also be applied to the parallel provisions for beneficiaries in collective accommodations pursuant to Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (cf. Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., Section 3a AsylbLG (as of November 28, 2022), marginal note 44_18, Lower Saxony-Bremen State Social Court, decision of June 29, 2023, L 8 AY 18/23 B ER).

Source: anwaltskanzlei-adam.de

6. Questions about citizen's income, social assistance and other legal codes – Copyright protection – Quoting only with reference to Tacheles e. V. is permitted!

6.1 – Citizen's income: School supplies allowance for children of separated parents – Section 28 Paragraph 3 SGB 2

The association Tacheles e. V. states:
So far, we are aware of the following opinions and rulings; there are differing views on which job center has to pay and in what amount.

1. LSG Berlin-Brandenburg, judgment of 11/10/2022 – L 27 AS 1192/21 –

Basic income support under the German Social Code, Book II (SGB II) – Tenancy agreement between relatives – Additional needs allowance for single parents in a weekly shared custody arrangement with equal cost sharing – Half of the personal school supplies in a half shared custody arrangement

Guiding principle of the editor of Tacheles e. V.:
1. In the case of a weekly alternating custody arrangement with approximately equal cost sharing between both parents, the all-or-nothing principle is not applicable due to the flat-rate nature of Section 21 of the German Social Code, Book II (SGB II), regardless of any actual additional needs incurred. Instead, half of the additional needs allowance for single parents is to be applied to each parent, which is affirmed here, even if the parents live in adjacent apartments in the same house.

2. Benefits for education and participation in the form of personal school supplies are only to be granted at half the rate due to the shared custody arrangement, i.e., in accordance with Section 34 Paragraph 3 No. 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 28 Paragraph 3 of the German Social Code, Book II (SGB II), an amount of …

2. Social Court Dortmund, Judgment of 16 May 2017 – S 19 AS 2534/15 – legally binding, Jobcenter withdrew its appeal – S 19 AS 2534/15 – Appeal proceedings L 2 AS 1246/17 – Lars Schulte-Bräucker (Attorney at Law)

Hartz IV: Job centers argue over school fees for children of separated parents

Court Notice:
School fees for children of long-term unemployed individuals must be paid by the job center in whose district the students are habitually resident. This also applies if, on the cut-off date at the beginning of the school semester, they are staying with the parent with visitation rights in the jurisdiction of a different job center.

Further information at www.anwalt.de: Jurisdiction of the Job Center in the case of school fees, Social Court Dortmund judgment of 24.5.17, file number: S 19 AS 2534/15 and press release of the Social Court Dortmund

3. Social Court Berlin, Judgment of 08.05.2017 – S 137 AS 15874/16 – Education and Participation – personal school supplies – the dates mentioned in Section 28 Paragraph 3 of the German Social Code, Book II (SGB II) are not cut-off dates or criteria establishing entitlement – ​​pupils in a temporary household with their separated parents

1. The cut-off date regulation stipulated in Section 28 Paragraph 3 of the German Social Code, Book 2 (personal school supplies), is merely a point in time for the provision of benefits.

2. The one-off benefit payment can only be made to the household in which the school-age child has their habitual residence.

4. Now another court has dealt with this issue and reached the following decision:

The lump sum payment according to § 28 para. 3 SGB II in conjunction with § 34 para. 3 SGB XII is not divisible.

1. The Federal Social Court's case law on the proportionate additional needs allowance for single parents living in a temporary household (see, most recently, with reference to established case law: Federal Social Court, Judgment of September 27, 2023 – B 7 AS 13/22 R) can only be applied to other benefits if the benefit is divisible. The lump sum payment pursuant to Section 28 Paragraph 3 of the German Social Code, Book II (SGB II) in conjunction with Section 34 Paragraph 3 of the German Social Code, Book XII (SGB XII) is not divisible.

2. Benefits for education and participation pursuant to Section 28 Paragraph 3 of the German Social Code, Book II (SGB II), for school supplies, are provided once at the place where the school-age child has their habitual residence. If the habitual residence is with a parent who is not entitled to benefits, the entitlement pursuant to Section 28 Paragraph 3 of the SGB II only exists if it can be proven that the need has not been met by that parent.

7. Miscellaneous information on citizen's income, social assistance, asylum law, housing benefit law and other legal codes

7.1 – BGH, judgment of April 16, 2024 – X ZR 14/23

Principle:
For the assessment of the appropriate maintenance of a recipient of a gift pursuant to Section 529 Paragraph 2 of the German Civil Code (BGB), the income limit of 100,000 euros per year, which is relevant for the transfer of maintenance claims to social welfare providers pursuant to Section 94 Paragraph 1a of the German Social Code, Book XII (SGB XII), is irrelevant.

Source: www.rechtrecht-im-internet.de

Note from Tacheles e. V.:
Regarding this: The impoverished donor – and the reasonable maintenance of the recipient

More information: www.rechtslupe.de

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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker