1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, judgment of 09/20/2023 – B 8 SUN 22/22 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – old-age pension – income – funeral expenses insurance – conclusion of a policy before receiving benefits – appropriateness
Regarding the appropriateness of a funeral expenses insurance policy as a prerequisite for the deduction of contributions payable for this policy from the income of the beneficiary in accordance with Section 82 Paragraph 2 Sentence 1 Number 3 of the German Social Code, Book XII (SGB XII).
Federal Social Court (BSG): Contributions to an appropriate funeral expenses insurance policy must be taken into account by the social welfare office as reducing income (principle by editor of Tacheles e. V.)
Guidance note from the editor of Tacheles e. V.:
1. Contributions to private insurance can only be deducted from income if the payment serves purposes recognized under social welfare law.
2. The preferential treatment of funeral expense insurance compared to other private (capital-forming) insurance policies is expressed in Section 33 Paragraph 2 of the German Social Code, Book XII (SGB XII), according to which a special individual reason does not need to be asserted for contracts concluded before the commencement of benefits.
3. It is necessary that a binding agreement, in the sense of an objective purpose designation, ensures that the insurance sum is used for the funeral expenses. For this purpose, it is sufficient if the beneficiary is an heir liable for funeral costs.
4. The sum insured is appropriate at least if it does not exceed the costs for a proper burial and appropriate grave maintenance, as defined in Section 850b Paragraph 1 Number 4 of the German Code of Civil Procedure (ZPO). The anticipated need for social assistance to cover funeral costs is irrelevant.
5. The amount of the insurance premiums is reasonable if there is no conspicuous disproportion between the total amount of the premiums and the sum insured compared to other insurance policies offered on the market. The fact that the funeral expenses insurance covers accidental death with double the sum insured does not in itself render it unreasonable, as long as no significantly higher premium has been incurred.
Full text now available at: www.sozialgerichtsbarkeit.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG BW, judgment of December 15, 2022 – L 7 AS 3507/21 – www.socialgerichtsabilities.de
A married couple receiving citizenship benefits asks: Is the standard rate for married couples unconstitutional?
Regarding the standard benefit rate, the 2018 Income and Expenditure Survey (EVS) shows that couples in households of unemployed individuals incur higher costs compared to single individuals and do not experience any savings. It is argued that the granted standard benefit rate level 2, instead of the desired standard benefit rate level 1, constitutes discrimination against married couples and families.
Guiding principle of the association Tacheles e. V.:
The classification of cohabiting couples in standard benefit level 2 is not unconstitutional.
Guiding principle of the association Tacheles e. V.
1. No entitlement to consideration of the standard benefit level 1, as this is to be recognized for persons who are single or single parents or whose partner is a minor (cf. Section 20 Paragraph 2 Sentence 1 SGB II).
Recommended reading from Tacheles e. V.:
LSG NRW, Judgment of 26.04.2023 – L 12 AS 1372/22 – Tacheles Case Law Ticker Week 44/2023
Civil partnership (LPartG) – intention to separate denied – entitlement to standard benefit level 1 despite the existence of a community of need according to § 7 para. 3 no. 3b) SGB II
Entitlement to standard benefits for single persons if both partners no longer share expenses despite existing a household (Tacheles e. V.)
Guiding principle of the editor of Tacheles e. V.:
1. If two life partners (male) live separately, this is not sufficient for the “intent to separate” within the meaning of the German Social Code, Book II (SGB II).
2. However, if they no longer share finances, a community of need still exists, but they are entitled to the standard benefit level 1.
2.2 – LSG BB, Decision of 10 April 2024 – L 3 AS 624/23 NZB – www.sozialgerichtsbarkeit.de
Citizen's income for the self-employed: Business expenses are considered unnecessary if they are disproportionate to the respective income
Guideline of the Tacheles e. V. association:
Expenses for travel costs (to other European countries), flight tickets, and a share of meal and travel expenses for a self-employed sports photographer are not to be considered business expenses within the meaning of Section 3 Paragraph 2 of the former version of the German Social Code, Book II (SGB II). Business expenses are to be considered unnecessary if they are disproportionate to the respective income.
Guidance from the Tacheles e. V. association:
1. Operating costs such as travel expenses, especially overnight accommodation costs within Europe, cannot be taken into account for a self-employed sports photographer if they are in a conspicuous disproportion to the operating income.
2. Only those expenses that are economically related to the specific business are considered business expenses (Hannes in: Beck Online Commentary on Social Law, Rolfs/Giesen/Meßling/Udsching, 68th edition, as of March 1, 2023, para. 30, 31 on § 3 Citizen's Allowance Ordinance).
3. The question remains whether regular air travel with multi-day hotel stays within Europe is still compatible with the living conditions of those receiving benefits to secure their livelihood.
Legal tip from Tacheles e. V.: similarly,
LSG NSB, decision of 15.06.2016 – L 7 AS 398/16 B ER – and LSG Hamburg, judgment of 10.09.2015 – L 4 AS 109/14 – operating expenses are to be considered unnecessary if they are disproportionate to the respective income.
Useful information from the association Tacheles e. V.
1. When assessing the avoidability of business expenses in the context of self-employment according to § 3 para. 3 sentence 1 Alg II-V, it must be taken into account that a member of a mixed household who is not receiving benefits under the SGB II is not obliged to strictly orient his business expenses according to the standard of § 3 para. 3 sentence 1 Alg II-V.
2. Knowing that his spouse receives benefits under the German Social Code, Book II (SGB II), he can only be expected to orient his spending behavior towards the generally applicable economic efficiency criteria and not to incur any obviously unnecessary or excessive business expenses.
3. Self-employed individuals receiving supplementary benefits can deduct business expenses from their income, provided they are not obviously unreasonable. The standard is to prevent abuse. The decisive factor is whether the expense is justifiable from the perspective of a prudent, economically minded self-employed person. Job centers are prohibited from impersonating the self-employed individual with their own cost-saving proposals (based on the Federal Social Court rulings of June 5, 2014 – B 4 AS 31/13 R and the Berlin Social Court ruling of November 28, 2014 – S 37 AS 11431/14).
2.3 – LSG BW, judgment of April 17, 2024 – L 3 AS 455/24 – www.socialgerichtsabilities.de
Citizen's allowance under the German Social Code, Book II (SGB II) – principle of support – non-existence of a subjective public right to the designation of a different personal contact person – concern of bias
Citizen's Allowance: Can recipients of citizen's allowance demand the assignment of a different case worker because they believe the current one is biased?
Guiding Principles of the Tacheles Association e. V.
1. Individuals receiving citizen's income do not have a subjective public right to designate a different personal contact person; this also applies if there are concerns about the designated person's bias. Affected individuals must refer to the general rules of social administrative law to have the grounds that may justify the concern about bias reviewed.
2. Insofar as, in a more expansive interpretation of Section 14 Paragraph 3 of the German Social Code, Book II (SGB II), a subjective right of the person in need of assistance to change the contact person in case of concern of bias within the meaning of Section 17 of the German Social Code, Book X (SGB X) is assumed (see BeckOGK/Kohte [as of 01.08.2023] SGB II, Section 14, marginal note 40), the Senate does not agree with this.
3. Such a claim does not arise from the wording of the provision, which merely stipulates, in the form of a discretionary provision, the designation of a personal contact person, but not a specific contact person. The person concerned must be referred to the general provisions of social administrative law.
4. Section 17 of the German Social Code, Book X (SGB X) establishes an internal administrative procedure for reviewing grounds that may justify concerns about bias and, if necessary, for issuing an administrative order to the employee in question to refrain from further participation. However, the employable person entitled to benefits does not have an independent right to refuse participation (as expressly stated here by Sieper in: Hauck/Noftz SGB II, 2nd Supplement 2024, § 14 para. 56 with further references, citing the Federal Social Court (BSG), judgment of September 22, 2009 – B 4 AS 13/09 R).
Note:
1. LSG NRW, decision of 16.02.2012, – L 19 AS 91/12 B ER –
1. A benefit recipient has no subjective public right to (co-)determine the caseworker responsible for their benefit case. The assignment of tasks to a caseworker is an internal administrative decision that cannot be reviewed by a benefit recipient in court (see North Rhine-Westphalia State Social Court, decision of April 23, 2010 – L 6 B 93/09 AS – with further case law references).
2. The provision in Section 14 Sentence 2 of the German Social Code, Book II (SGB II), which stipulates that a personal contact person should be appointed for each employable person entitled to benefits, does not give rise to a subjective public right of the benefit recipient to reject a specific caseworker and be assigned another. Section 14 Sentence 2 of the SGB II merely establishes an objective legal assignment of tasks to the benefit provider, but does not grant the benefit recipient a legal entitlement to specific personnel structures in case processing (Federal Social Court judgment of September 22, 2009 – B 4 AS 13/09 R = BSGE 104, 185, juris Rn 26 with further references; Higher Social Court of North Rhine-Westphalia decision of April 23, 2010 – L 6 B 93/09 AS -).
3. Even if the applicant considers the responsible case worker at the Job Center to be biased, Section 17 of the Tenth Book of the Social Code (SGB X) does not grant the party a formal right of recusal (BSG judgment of 22.09.2009 – B 4 AS 13/09 R).
2. LSG BB, judgment of March 26, 2010 – L 32 AS 2431/08
1. The assignment of an employment agent is not carried out by administrative act.
2. No right of an employable person in need of assistance to a specific employment agent or to have the agent replaced.
3. A more critical yet optimistic view of the issue comes from attorney Christin Böse: "I want a different case worker at the office! Mine is biased!"
An article by attorney Christin Böse, published on www.anwalt.de
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Berlin, Judgment of 21.08.2020 – S 179 AS 7523/19 – (not published) confirmed by LSG BB, Judgment of….
Regarding the question of whether a training trip can be considered as a need for education and participation in accordance with Section 28 Paragraph 7 Sentence 2 of the German Social Code, Book II (SGB II) as amended, if the activity of the training is already being promoted in accordance with Section 28 Paragraph 7 Sentence 1 No. 1 of the German Social Code, Book II (SGB II).
Detlef Brock, editor of Tacheles e. V., writes:
SG Berlin: Judge Schifferdecker brings a smile to the face of a single mother's daughter and rebukes the JobCenter!
1. The Job Center refuses to allow the daughter of a single mother to participate in her football club's trip. The Berlin Social Court (SG Berlin) ruled this unlawful, arguing that the regulation in Section 28 Paragraph 7 Sentence 2 of the German Social Code, Book II (SGB II) (old version) is not exhaustive, a point the Job Center disputes.
2. The costs of the club trip must be covered if discretion is reduced to zero; this includes accommodation and meal costs.
Guiding principle (Tacheles e. V.)
1. Claim against the JobCenter for the provision of further education and participation benefits under the SGB II to finance the club trip.
2. The provision in Section 28 Paragraph 7 Sentence 2 of the German Social Code, Book II (SGB II) also covers further costs.
3. Although an interpretation as a claim for the costs of every club trip is not possible, in the present case there is a reduction of discretion which excludes any decision other than the assumption of the participation costs.
Guiding principles Detlef Brock:
The accommodation and catering costs incurred for a multi-day training trip of the football club, in addition to the monthly club fees, constitute further actual expenses that can be taken into account in accordance with Section 28 Paragraph 7 Sentence 2 SGB II (in the version applicable until July 31, 2019).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG BW, Judgment of 18.04.2024 – L 7 SO 1581/22 – Appeal allowed
Guiding principles www.sozialgerichtsbarkeit.de
1. If, at the time of leaving an institution, it is not clear whether, when and where the (inpatient) assistance is to be continued, there may be a legally significant interruption of the chain of institutions.
2. Regarding the prerequisites for a reimbursement claim by the first contacted rehabilitation provider pursuant to Section 102 SGB X or Section 104 SGB X.
5. Questions about citizen's income, social assistance and other legal codes – Copyright protection – Quoting only permitted with reference to Tacheles e. V.!
5.1 – Do recipients of citizen's income receive subsidies from the job center for the repair of storm damage?
The association Tacheles e. V. states:
1. Services for the removal of storm damage are to be provided by the Jobcenter as a subsidy in accordance with § 22 SGB 2.
2. Here regarding the assumption of costs for the repair of hail damage according to § 22 para. 2 SGB II.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Stuttgart Social Court – Decision of 15 May 2024 – Case No.: S 9 AY 1438/24 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, Benefit according to Section 3 AsylbLG, Benefit according to Section 3a AsylbLG, Stuttgart Social Court
Guiding principle of the association Tacheles e. V.
1. Granting of basic benefits in accordance with §§ 3 and 3a AsylbLG in the standard benefit level 1.
Continued with attorney Sven Adam
Important note:
Unpublished judgments (marked with "nv"), annotations, and case reviews by lawyers that we receive from courts, lawyers, or private clients may be quoted, but only with attribution to Verein Tacheles. Anything else constitutes copyright infringement.
Thank you!
We have permission to publish judgments published by the association Tacheles von Rechtsanwälten.
Conversely, this means that if judgments originate from a lawyer's website, a link to that website must be provided, or the Tacheles association must be cited as the source. Failure to cite the source constitutes copyright infringement, and lawyers have already complained about this. Please take this into account from now on.
Thank you!
The information, guidelines and legal tips in the ticker must also be marked with the source: "Information from Tacheles", anything else constitutes a copyright infringement.
This publication is subject to the Creative Commons CC-BY-SA 3.0 license.
Any use of copyrighted works on the internet without the consent of the author or rights holder constitutes copyright infringement. Quotes from the ticker always require attribution!
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
