1. Decisions of the state social courts on citizen's income (SGB II)
1.1 – LSG BB, Decision of 13.06.2024 – L 3 AS 409/24 B ER –
The guiding principle of
Section 28 Paragraph 1 Sentence 1 Number 3 of the Residence Act 2004 is not applicable to the parents of minor unmarried Union citizens if these minor Union citizens are not German citizens (contrary to the ruling of the Higher Social Court of Saarland of September 7, 2021 – L 4 AS 23/20 WA -).
Section 28 paragraph 1 sentence 1 no. 3 of the Residence Act – according to its wording – only applies to the parent of a (minor) German citizen
1. A right of residence based on parental care for minor Union citizens exists only under the conditions of Section 11 Paragraph 1 Sentence 11 of the Freedom of Movement Act/EU in conjunction with Sections 28, 29, 32 of the Residence Act.
Section 7 paragraph 1 sentence 3 of the Residence Act cannot be considered as a legal basis for a right of residence due to the exhaustive regulations.
2. Section 28 paragraph 1 sentence 1 no. 3 of the Residence Act does not grant a right of residence to the unmarried mother of a non-German minor Union citizen.
3. The Citizens' Rights Directive lays down in detail the conditions under which Union citizens and their family members may exercise their right to freedom of movement within the territory of the Member States, the right of such persons to permanent residence and the restrictions on these rights (see in particular Article 24(2) of the Citizens' Rights Directive, which contains an explicit exception to the prohibition of discrimination).
4. The differentiated program of standards underlying the Citizens' Rights Directive (and the national law implementing it: Freedom of Movement Act/EU) would be completely undermined by the application of Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act to the parent of a minor Union citizen, as advocated by the opposing view (see, in general: Decision of the Senate of 7 July 2022 – L 3 AS 535/22 B ER –, unpublished, with further references).
Source: www.socialgerichtsabilities.de
Legal tip:
see also LSG Berlin-Brandenburg, judgment of June 9, 2021 – L 34 AS 850/17 –, and decision of May 22, 2017 – L 31 AS 1000/17 B ER; LSG North Rhine-Westphalia, decision of July 27, 2017 – L 21 AS 782/17 B ER; SG Berlin, judgment of July 9, 2018 – S 135 AS 23938/15 –).
a. Opinion: LSG Hessen, 04.12.2023 – L 7 AS 421/22 – pending before the BSG under file number: BSG – B 7 AS 3/24 R –
1.2 – LSG Saxony-Anhalt, decision of 15.07.2024 – L 2 AS 169/24 NZB –
Appeal against the refusal of leave to appeal – Costs of accommodation and heating – Two-person household in Halle (Saale) in Saxony-Anhalt –
Principle:
The reasonable accommodation costs determined by the basic income support provider for the year 2018 in the city of Halle (Saale) do not raise any fundamental questions for a two-person household. The cogency of the underlying concept was fundamentally clarified in the Senate's judgment of November 9, 2023, L 2 AS 547/19 juris.
There are no apparent special circumstances that might warrant a different assessment of the limit values for two-person households.
Source: www.landesrecht.sachsen-anhalt.de
2. Decisions of the social courts on citizen's income (SGB II)
2.1 – none
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – LSG NRW, judgment of 07/20/20224 – L 20 AL 196/22 –
There is no entitlement to vocational training assistance if you live with your mother in a shared apartment (guideline of the Tacheles e. V. association)
1. “Living outside the parental household” within the meaning of Section 60 Paragraph 1 No. 1 SGB III means that the trainee lives in his own apartment, separate from the parental apartment, and maintains his own household there.
2. It is therefore not only necessary to manage one's own household in the sense that the trainee – economically – provides for the needs of daily life (including food and clothing).
Furthermore, what is required is – spatially – separate living in one's own, demarcated apartment, which is lacking here.
3. The general exclusion of persons who are accommodated in the household of their parents or one parent during their vocational training from vocational training assistance does not result in a violation of the constitutional principle of equal treatment (BSG B 11a AL 39/06 R).
4. Accommodation in the home of the parents or one parent, even with rent payments (sublease agreement), is not sufficient to fulfill the cumulatively required condition of living in one's own apartment, separate from the parental apartment.
Legal tip:
The spatial component, i.e., living outside the parental household, requires that the trainee lives in an apartment separate from the parental home.
According to natural language understanding, it cannot be assumed that trainees and their parents are "living outside the parental household" (see also Schleswig-Holstein State Social Court, judgment of 21.03.2016 – L 6 AS 73/13 Rn. 29, on § 13 para. 2 no.1 BAföG).
Source: www.socialgerichtsabilities.de
3.2 – LSG NRW, Judgment of 09.11.2023 – L 9 AL 145/22 – Appeal pending before the Federal Social Court, file number: BSG – B 11 AL 4/24 R
No seamless transition – unemployment benefit I if the pension application is rejected by the pension insurance provider
Unemployed persons cannot claim unemployment benefit I due to the seamless transition provision of Section 145 of the German Social Code, Book III (SGB III), if the pension insurance provider rejects their claim for full incapacity for work and they wish to sue the pension insurance provider, because they lack the necessary subjective availability. (Guiding principle by Detlef Brock).
1. The seamless application cannot be applied to unemployed persons if the pension insurance institution had already decided on a reduced earning capacity of the unemployed person and had determined that there was no longer a reduced earning capacity.
2. This applies especially if unemployed people want to sue against the rejection of their pension application.
3. In this situation, the Federal Employment Agency (BA) can no longer assume that the unemployed are objectively no longer available for job placement due to a lack of sufficient capacity to work (contrary to the ruling of the Baden-Württemberg State Social Court of 12 December 2003 – L 8 AL 4897/02).
4. If the seamless transition rule – as in this case – is not applicable, the unemployed person must make himself available for work within the scope of his objective capacity to work.
5. Subjective availability is to be affirmed if the unemployed person is prepared to accept all employment that corresponds to his objective capacity and is reasonable in nature and scope.
Subjective availability is lacking if the unemployed person insists that he is no longer able to work despite contrary medical findings and despite being informed of the consequences (LSG Baden-Württemberg judgment of 30.09.2011 – L 12 AL 4286/10 -).
Source: www.socialgerichtsabilities.de
Legal tip:
A completely different opinion is held here.
Behrend in Eicher/Schlegel, SGB III, § 145 Rn. 61; similarly, LSG Baden-Württemberg, judgment of 12 December 2003 – L 8 AL 4897/02 –
A claim under Section 145 of the German Social Code, Book III (SGB III) can also be established after the pension insurance provider has rejected a claim for full incapacity for work until this decision becomes legally binding, if the insured person – as in this case – sues against the denial of incapacity for work
Source: www.socialgerichtsabilities.de
3.3 – SG Heilbronn, judgment of May 14, 2024 – S 2 AL 357/23 –
Regarding the scope of objective availability for placement efforts by the employment agency when receiving unemployment benefits and simultaneously studying; transferability of the case law on the weekly total workload limit of 48 hours.
Guiding Principles www.sozialgerichtsbarkeit.de
1.) In the context of determining availability for participation in further training measures, the total workload from further training and employment must be limited to a total of 48 hours per week, according to the highest court rulings. This limitation is defined as a maximum workload, since Section 3 of the Working Time Act stipulates a total weekly workload limit of 48 hours for employees. This case law is analogous to students, as a de facto maximum workload also exists when studies and employment are combined.
2.) The legislator assumes in §§ 138 para. 5 SGB III and 139 para. 2 SGB III that, as a rule, studying already precludes the exercise of compulsory insurance employment of at least 15 hours per week (and consequently an entitlement to unemployment benefits), and that this is only exceptionally not the case.
If the benefit recipient states that they spend 30-35 hours per week studying and, after the end of their unemployment benefit period, only pursues an insured activity with a time commitment of 50% alongside these studies, this, taking into account a maximum workload of 48 hours per week, speaks against an objective availability of more than 20 hours per week.
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Halle, Decision of 11.04.2024 – S 7 SO 9/24 ER –
Principle www.landesrecht.sachsen-anhalt.de
People in need of care have a right to the approval of benefits for care under an employer assistance model and to participation benefits for assistance services, also within the framework of a personal budget (§ 64f para. 3 SGB XII, § 113 para. 2 no. 2 SGB IX).
The entitlement to these benefits is not dependent on the person in need of care or disabled being able to fully perform all employer functions themselves, provided that the necessary support is provided by others.
People of retirement age who require care are not excluded from integration assistance benefits.
The responsible authority is obliged to advise and support applicants in the implementation process (§ 64f para. 2 SGB XII and § 113 para. 1 sentence 2 SGB IX as well as § 29 para. 2 sentence 6 SGB IX). If people wish to continue living in their own homes, finding a place in a residential care facility is not a suitable support measure.
The cost comparison pursuant to Section 104 Paragraph 2 Sentence 2 of the German Social Code, Book IX (SGB IX) refers only to comparable services. Services to support independent living in one's own home and services for a residential care facility are not comparable within the meaning of this rule.
4.2 – Social Court Munich, Judgment of 09.08.2024 – S 46 SO 124/24 –
Guiding principles www.sozialgerichtsbarkeit.de
Even after an objection by the heir of a benefit recipient against a decision on reimbursement of costs pursuant to Section 102 of the German Social Code, Book XII (SGB XII), this claim may expire if the issuing authority terminates the suspension of the expiry by not pursuing the proceedings in accordance with Section 102 Paragraph 4 Sentence 2, Section 103 Paragraph 3 Sentences 2 and 3 of the German Social Code, Book XII (SGB XII) in conjunction with Section 204 Paragraph 2 of the German Civil Code (BGB).
Submitting an objection procedure to the appeals authority is sufficient to continue the proceedings in accordance with Section 204 Paragraph 2 Sentence 3 of the German Civil Code (BGB) and to reinstate the suspension of the expiry of the claim for reimbursement of costs. Notification to the objector is not required for this.
4.3 – Social Court Munich, Judgment of 09.08.2024 – S 46 SO 354/23 – Appeal allowed
The question of whether the retroactive effect under Section 44 Paragraph 2 of the German Social Code, Book XII (SGB XII) also applies to other benefit requirements besides the application is controversial in the literature and has not been clarified by higher courts.
Principle www.sozialgerichtsbarkeit.de
The retroactive effect to the first of the calendar month according to § 44 para. 2 sentence 1 SGB XII only applies to the application for basic income support in old age and in case of reduced earning capacity.
If an applicant only turns 18 during the month of application, they can only receive benefits from that day onwards.
Note:
This question is controversial in the literature and has not been clarified by higher courts.
It is sometimes claimed that benefits can begin on the first of the month, even if the eligibility requirements are only met during the application month, i.e., after the first day of the calendar month.
This is inferred from the fact that the legislator did not address this issue in the explanatory memorandum to the law when amending the provision on 01.01.2016 (Hauck/Noftz, SGB XII, as of 4th edition 2024, § 44 para. 22).
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Social Court Munich, decision of 07.08.2024 – S 52 AY 65/24 ER –
Providing benefits via payment card does not represent a significant disadvantage for an illiterate and partially blind person (orientation statement by the editor of Tacheles e. V.)
At present, the statements of the Hamburg State Social Court in its decision of July 24, 2024, are to be agreed with, namely that the difficulties currently associated with the payment card do not (yet) appear unreasonable (Case No. L 4 AY 8/24 B ER).
Even though the case underlying the decision involved a single resident of a reception facility with predominantly in-kind benefits, the same applies to the applicant and her minor child in decentralized accommodation.
Unlike the applicant in that case, they have a larger sum of money available on their payment card, which they can use individually for living expenses, as they are not dependent on benefits in kind. The monthly cash allowance of €100.00 appears to be sufficient for these applicants.
Due to the lack of a reduction of discretion to zero, the respondent cannot be obliged to provide basic benefits pursuant to Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) by way of an interim injunction through cash payment.
Source: www.socialgerichtsabilities.de
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
