1. Decisions of the Federal Social Court on basic income support (SGB 2)
1.1 – BSG, judgment of 07/17/2024 – B 7 AS 10/23 R –
Basic income support for job seekers – need for assistance – cash gift – income – grant – owner-occupied home – roof renovation
Regarding the non-crediting of a sum of money received during the receipt of benefits under the German Social Code, Book II (SGB II), due to gross unfairness pursuant to Section 11a Paragraph 5 No. 1 SGB II, if the credit covers expenses for accommodation that may be taken into account by the job center in whole or in part as a need pursuant to Section 22 Paragraph 2 SGB II.
Federal Social Court (BSG): Job center may not count a cash gift from mother towards urgent roof repairs
Guiding principle of the editor of Tacheles e. V.:
1. A mother's contribution for roof repairs does not constitute income that can be counted towards benefits for her daughter in need.
2. A gross inequity within the meaning of Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II) exists in a case in which the mother of a recipient of benefits under the SGB II gives her daughter a sum of €7,000 in cash for the roof repair of the house owned by the daughter, without being legally or morally obligated to do so.
3. The sum of money provided by the plaintiff's mother was income and not assets within the meaning of the German Social Code, Book II (SGB II), because it was received during the benefit period/after the application was submitted. However, it did not lead to the termination of the entitlement pursuant to Section 48 Paragraph 1 Sentence 2 No. 3 of the German Social Code, Book X (SGB X).
4. Considering the sum of money given by the mother – without any legal or moral obligation – to settle the roofer's bill as income would be grossly unfair to the plaintiff within the meaning of Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II).
5. Because the cash gift did not lead to an improvement in the recipient's financial situation and the job center would have had to cover the repair costs anyway, it is therefore not considered income to be taken into account.
Source: www.bsg.bund.de
Legal tip:
A gross injustice within the meaning of Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II) does not exist in a case in which the mother of a recipient of benefits under the SGB II gives her 61-year-old son €5,000 in cash for the purchase of a motor vehicle, without being legally or morally obligated to do so.
Because the donation has such a significant impact on his economic situation that benefits under the German Social Code, Book II (SGB II) would not be justified in addition (cf. Higher Social Court of Mecklenburg-Western Pomerania, decision of December 12, 2013 – L 8 AS 9/13 B ER -) – a different set of facts applied here. A motor vehicle is an object that can easily be sold again and thus "turned into money for living expenses".
1.2 – BSG, judgment of July 17, 2024 – B 7 AS 3/23 R
Basic income support for job seekers – third-country nationals – visitor visa – exclusion from benefits
Regarding the question of whether and, if so, under what circumstances third-country nationals who join another third-country national with an unlimited residence permit in the Federal Republic of Germany as his wife and children are subject to the three-month exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II).
BSG: Federal Social Court supports family reunification for foreign workers receiving citizen's allowance
Children and other persons who are unable to work for recognized reasons can also receive benefits from the job center during the first 3 months if they move in with a working relative or a relative entitled to benefits under the German Social Code, Book II (SGB II).
A Tunisian mother with her two children is entitled to social benefits in the case of family reunification
The Federal Social Court (BSG) justifies its decision by stating that the mother and her two children were entitled to ALG II – social assistance.
Although they were not employable due to their age, they formed a household with the husband and father, who, as their "head", granted them entitlement to basic income support for job seekers under Section 7 Paragraph 2 of the German Social Code, Book II (SGB II), according to the 7th Senate of the Federal Social Court (BSG).
The exclusion of benefits did not apply pursuant to Section 7 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II)
Foreign nationals who are neither employed nor self-employed in the Federal Republic of Germany, nor entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU, and their family members will not receive benefits under the German Social Code, Book II (SGB II) for the first three months of their stay.
However, according to the Federal Social Court (BSG), this did not apply to the plaintiffs
Because the applicants are not even covered by the scope of this standard.
Only foreigners capable of working are covered by this standard
The regulation primarily affects employable foreigners and only secondarily – as a consequence – their family members.
But the applicants were unable to work and were therefore entitled to social assistance.
They were also not family members of an excluded employable person
They were also not family members of an excluded employable person. This is because the husband and father receives benefits under the German Social Code, Book II (SGB II); he is a foreign national entitled to benefits.
Source: BSG (Federal Social Court) report and publication by GGUA: Gemeinnützige Gesellschaft zur Unterstützung Asylsuchender eV (Non-profit Society for the Support of Asylum Seekers): Entitlement to SGB II (Social Code Book II) benefits in the first three months for family members with a Schengen visa (ggua.de)
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG Baden-Württemberg, judgment of 07/01/2024 – L 3 AS 848/24 –
Job centers are not obliged to include the printing date, postmark, or sender's mark on simple letters to benefit recipients
Guiding principle of the association Tacheles e. V.
1. The job center is not obligated to include both the postmark and the printing date on the mere cover letter addressed to the benefit recipient.
2. The date of posting is to be noted only in the files, but not on the announced notices.
3. The decisions of the Bavarian State Social Court (LSG), judgment of May 11, 2022 (L 2 U 140/13), the Federal Social Court (BSG), judgment of May 6, 2010 (B 14 AS 12/09 R), and the Federal Fiscal Court (BFH), decision of July 3, 2009 (IX B 18/09), cited by the benefit recipient, merely establish that for the deemed notification under Section 37 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X), a note about posting in the official files is required (similarly BSG, judgment of March 3, 2009 – B 4 AS 37/08 R; BSG, judgment of December 9, 2008 – B 8/9b SO 13/07 R –), but the job center is not obligated to note this on the notified decision.
2.2 – LSG Baden-Württemberg, judgment of 07/01/2024 – L 3 AS 1525/23 –
Editorial guideline for
Citizen's Income: Job centers may not classify close male friendships as a household for benefit purposes
1. A community of need within the meaning of the case law of the BSG does not exist in the case of a partnership and sexual relationship with another person (cf. LSG Hamburg L 4 AS 108/16).
2. According to common usage, a partnership is characterized by the fact that its members acknowledge each other in the sense that the other is their partner or “girlfriend or boyfriend”, that they are “together” or live in a relationship or the like (see also LSG NSB L 13 AS 268/11).
3. Relationships with third partners with whom leisure time is spent – such as the joint short holidays and overnight stays in the present case – argue against the assumption of a partnership that presupposes a community of need.
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Nordhausen, decision of 04.06.2024 – S 19 AS 485/24 ER –
Social court proceedings – preliminary legal protection – regulatory order – basic income support for job seekers – integration benefit – participation in the labor market – entitlement to assignment to an employer
Guiding principle www.landesrecht-thueringen.de
1. In preliminary legal protection proceedings, an obligation on the part of the benefit provider to provide a disputed discretionary benefit is warranted when a regulatory order is issued, if effective legal protection within the meaning of Article 19 Paragraph 4 of the Basic Law could not be achieved solely by requiring the benefit provider to exercise its discretion again, and if there is a preponderance of probability that a decision in favor of the claimant would be reached upon a renewed exercise of discretion. (Paragraph 9)
2. The allocation required for payment to the employer within the meaning of Section 16i Paragraph 3 of the German Social Code, Book II (SGB II), constitutes a subjective right of the employable person entitled to benefits and can be asserted by them in court in their own name (following the decision of the Higher Social Court of Essen of March 16, 2020 – L 7 AS 162/20 B ER = Breith 2020, 693 = juris para. 13). (Para. 10).
3.2 – SG Munich, judgment of October 5, 2022 – S 2 AS 78/22 –
Citizen's income: No additional hardship allowance from the job center for eviction proceedings
Legal and court costs incurred by the plaintiff in connection with an eviction lawsuit are unavoidable within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), because if the legal process offers no prospect of success and no legal aid is granted, the additional need is unavoidable (Tacheles Association).
Legal tip:
In exceptional cases, the costs of an eviction lawsuit may be covered. This requires that the eviction lawsuit is unavoidable for the benefit recipient because the job center has withheld the necessary funds to cover their existing housing needs by denying benefits, thus necessitating the eviction lawsuit (see Bavarian State Social Court, judgment of January 30, 2014 – L 7 AS 676/13).
The job center bears the costs of an eviction lawsuit if it wrongfully denies benefits to the beneficiary, resulting in rent arrears and the landlord subsequently files an eviction lawsuit.
The resulting court costs are to be considered as (one-off) accommodation needs under the German Social Code, Book II (LSG BW, judgment of 20 June 2017 – L 9 AS 1742/14 – subsequently BSG, 22 November 2017 – B 14 AS 25/17 R, decision: dismissal).
Recommended reading:
No additional benefits from the job center for eviction proceedings
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – SG Freiburg, judgment of June 24, 2024 – S 9 SO 1756/22 –
Principle www.landesrecht-bw.de
1. The effective granting of extended social assistance against reimbursement of expenses requires that the benefit be unambiguously designated as extended assistance for the recipient, the reason for this be communicated, reimbursement of expenses be reserved and it be explained under which conditions this will be claimed.
2. The formal legal force of the decision regarding extended assistance merely means that, in subsequent disputes concerning reimbursement of expenses, the substantive requirements for extended assistance (in particular, the existence of a "justified case" and the exercise of discretion) are no longer subject to review. The requirements regarding the content of the decision granting the assistance, as stipulated in paragraph 1, as a prerequisite for the claim for reimbursement of expenses, remain unaffected (distinguishing this case from the decisions of the Hessian State Social Court of 19 January 2022 - L 4 SO 185/20; the Baden-Württemberg State Social Court of 16 December 2015 - L 2 SO 5064/14; and the North Rhine-Westphalia State Social Court of 13 January 2014 - L 20 SO 222/12).
3. If the authority bases a benefit decision pursuant to Section 19 Paragraph 5 Sentence 1 of the German Social Code, Book XII (SGB XII) on a different set of facts than the original grant of extended assistance, the benefit decision is unlawful. This is because, in this case, the specific claim for reimbursement of expenses asserted is not identical to the claim for reimbursement of expenses that already arose in principle through the grant decision.
4. The claim for reimbursement of expenses pursuant to Section 19 Paragraph 5 Sentence 1 of the German Social Code, Book XII (SGB XII) is to be determined by calculating the entitlement to assistance for the individual periods of need for which extended assistance was granted – generally calendar months – based on the actual income and asset situation as well as the applicable legal situation in the respective period of need. Section 19 Paragraph 5 Sentence 1 of the SGB XII does not authorize the social welfare agency to reserve the right to reimbursement of expenses for extended assistance based on subsequent income or asset inflows.
4.2 – LSG Bayern, Judgment of 13.07.2023 – L 8 SO 155/22
Guiding Principles www.sozialgerichtsbarkeit.de
1. A permissible request for legal protection requires that the address of the party seeking legal redress – as part of the plaintiff's identification – be stated in the proceedings. This includes specifying the applicant's place of residence, stay, or employment. An address such as "poste restante" is generally insufficient.
2. This information may exceptionally be dispensed with if special reasons communicated to the court justify this.
4.3 – LSG BW, judgment of 06/20/2024 – L 7 SO 1130/24 –
Social assistance: No subsidy for new outerwear from the social assistance provider due to weight gain
Editorial guideline:
No entitlement to payment of a grant for one-off needs according to § 31 para. 1 no. 2 SGB XII for clothing allowance as initial equipment.
This applies at least if the weight gain has extended over a year and a half, then it represents a plannable or foreseeable event, the consequence of which, namely the need to procure suitable clothing, was foreseeable and plannable.
While such a need for clothing for initial outfitting could in principle exist in the case of significant weight gain or loss, the submitted documents do not indicate any such weight gain at any point in time.
The need for clothing must exist now and cannot be fulfilled retroactively by the service provider
Even if, due to the weight gain, there had been a need for clothing that met the requirements of Section 31 Paragraph 1 No. 2 of the German Social Code, Book XII (SGB XII), this need can no longer be met subsequently and therefore no longer justifies a corresponding claim by the plaintiff.
A need due to wear and tear is an ongoing need and does not justify an initial clothing purchase!
Source: www.socialgerichtsabilities.de
Note: Please read:
In principle, a clothing allowance may be required in cases of significant weight gain or loss (25-30 kg, 2 clothing sizes).
5. Decisions of the social courts on employment promotion law (SGB III)
5.1 – SG Heilbronn, decision of 15.05.2023 – S 7 AL 928/23 ER –
Guiding principles www.sozialgerichtsbarkeit.de
1) Objections and legal actions against the request to submit an application for rehabilitation benefits or a reduced earning capacity pension have suspensive effect.
2) If an objection is lodged against the request, the entitlement to unemployment benefit cannot be suspended pursuant to Section 145 Paragraph 2 Sentence 3 of the German Social Code, Book III.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – SG Berlin, judgment of 03/18/2024 – S 90 AY 126/21 –
Guiding principles www.sozialgerichtsbarkeit.de
An “acknowledgment of payment of co-payments” for participation in the costs of accommodation for refugees with income, signed by way of a public-law contract, is void if, due to the lack of a corresponding fee schedule, no administrative act of the same content could have been issued.
6.2 – Lower Saxony-Bremen State Social Court – Decision of 21 June 2024 – Case No.: L 8 AY 8/24 B
Legal norms: Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO) – Keywords: Legal aid, Asylum Seekers' Benefits Act (AsylbLG), Metreleptin therapy, Medical care under the Asylum Seekers' Benefits Act (AsylbLG), Lower Saxony-Bremen State Social Court
Guideline of the association Tacheles e. V.
Drug treatment of the chronic illness (a serious and life-limiting metabolic disease) according to § 6 para. 1 sentence 1 alternative 2 AsylbLG for a 6-year-old applicant (on this topic see LSG NSB, of 1.6.2023 – L 8 AY 19/22 -).
Legal aid was granted because there was a high probability that the applicant had a claim to an order for drug treatment of the chronic illness pursuant to Section 6 Paragraph 1 Sentence 1 Alternative 2 of the Asylum Seekers' Benefits Act (AsylbLG).
1. According to the Senate's most recent case law, the principles of Section 6 Paragraph 1 Sentence 1 Alternative 3 of the Asylum Seekers' Benefits Act (AsylbLG), which allows for the granting of other benefits necessary to meet the special needs of children, and Article 3 of the UN Convention on the Rights of the Child, which stipulates that the best interests of the child must be given priority in all legal decisions, require special justification when applying Section 6 Paragraph 1 Sentence 1 Alternative 2 of the AsylbLG if a medically necessary treatment measure for children or minors receiving basic benefits, which is generally required under the prevailing living conditions, is rejected as not essential for safeguarding their health (Senate judgment of June 1, 2023 – L 8 AY 19/22 – juris para. 27 and Senate decision of June 20, 2023 – L 8 AY 16/23 B ER – juris para. 20).
2. Based on this case law, there was a high probability that an entitlement to an order for drug treatment of the chronic illness existed pursuant to Section 6 Paragraph 1 Sentence 1 Alternative 2 of the Asylum Seekers' Benefits Act (AsylbLG).
Source: Attorney Sven Adam
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