1. Decisions of the state social courts on citizen's income (SGB II)
1.1 – LSG NSB, Judgment of 22.05.2024 – L 13 AS 312/21 – Appeal pending before the BSG – B 7 AS 21/24 R –
The costs for psychosocial support of a person seeking refuge during their stay in a women's shelter, as defined in Section 36a of the German Social Code, Book II (SGB II), are not reimbursable if the job center has issued a cost guarantee to the shelter's operator and subsequently billed them directly, without having granted the person seeking refuge corresponding benefits themselves (Editor of Tacheles e. V., Detlef Brock)
A claim for reimbursement of costs pursuant to Section 36a of the German Social Code, Book II (SGB II) is excluded if the responsible job center has only billed the operator of the women's shelter directly, without having granted the beneficiary benefits within the meaning of Section 6 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II).
Editor's Note
: The services for which reimbursement can be claimed must not only have been provided within the provider's own local jurisdiction, but also in all other respects in a lawful manner (Krauß in: Hauck/Noftz, SGB II, 4th Supplementary Delivery 2024, § 36a Rn. 24).
If benefits were wrongfully provided, i.e., without a legal basis under the German Social Code, Book II (SGB II), the resulting costs are not reimbursable by the previously responsible municipal authority. In the case of unlawful benefit provision, the municipal authority at the location of the women's shelter had no obligation to provide the benefit.
In that case, the previously responsible municipal authority cannot be liable for reimbursement (see LSG Baden-Württemberg, judgment of November 4, 2020 – L 2 AS 3911/18 -).
The basis for a claim for reimbursement of costs can only be benefits lawfully provided to the beneficiaries. This is because the obligation to reimburse under Section 36a of the German Social Code, Book II (SGB II) covers all benefits lawfully provided by the municipal authority under Section 6 Paragraph 1 Sentence 1 Number 2 of the SGB II to the beneficiary woman and the children living with her in a household unit for the duration of her stay in the women's shelter (see Federal Social Court, Judgment of March 8, 2023 – B 7 AS 7/22 R –).
Section 36a of the German Social Code, Book II (SGB II) governs a claim for reimbursement of benefits provided to eligible persons, but not a claim for reimbursement of payments made to women's shelters on the basis of an agreement pursuant to Section 17 Paragraph 2 of the SGB II (see Aubel in: jurisPK-SGB II, 5th edition 2020, Section 36a, as of June 26, 2022, marginal note 9.1; unclear in this respect regarding the necessity of a benefit award, Federal Social Court (BSG), judgment of May 23, 2012 – B 14 AS 190/11 R-).
Source: www.socialgerichtsabilities.de
1.2 – LSG BB, judgment of 08/22/2024 – L 25 AS 99/24 –
Guiding Principles www.sozialgerichtsbarkeit.de
1. Section 3 Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU requires that family members of the Union citizens mentioned in Section 2 Paragraph 2 Numbers 1 to 5 of the Freedom of Movement Act/EU accompany or join the Union citizen. The legal status of the family member is accessory; the existence of their right to freedom of movement depends on the existence of the Union citizen's right to freedom of movement and the continued existence of the family relationship.
2. If a Union citizen relinquishes his right to freedom of movement by permanently moving to his country of origin, he can no longer grant a right of residence to a Union citizen who remains in the Member State.
3. Article 12(1) of Directive 2004/38/EC does not have an independent scope of application, which explains why the legislator has refrained from transposing it into national law.
1.3 – LSG BB, Judgment of 23.07.2024 – L 14 AS 1570/20 – Appeal allowed
Guiding principles www.sozialgerichtsbarkeit.de
1. The availability of housing can be demonstrated both by comparing the specific number of apartments offered and those in demand, and by comparing it with the proportions of supply and demand.
2. Proof of availability cannot be provided by calculations showing that benefit recipients in a tight rental market have the same statistical chances of finding a few available apartments as their competitors.
3. The availability of housing cannot be proven by comparing the share of demand competition in the total population with the share of adequate housing in a subset of the rental market in the comparison area – formed according to adequacy values.
1.4 – LSG Baden-Württemberg, decision of 16.05.2024 – L 2 AS 1158/24 ER-B –
The job center must cover the monthly rental costs of a container for a woman in need of assistance who lives in a women's shelter as housing costs – Section 22 Paragraph 1 SGB II
A pianist who, due to rape and flight to a women's shelter, had to rent a container filled with numerous moving boxes containing household goods, including books, essays, documents, scores and other papers, medications, equipment (such as for asthma, ventilation, back and joint training), pots, cutlery, cooking utensils, pans, bed linens, clothes and shoes, as well as keyboards, sheet music and other documents that she needs to practice her profession as a pianist – is entitled to have the monthly rental costs of the container covered by the job center as housing costs.
Legal tip:
If furniture and household items have been stored as a result of an eviction or other abandonment of residence, the storage costs and the release fee are considered part of the accommodation costs according to § 22 para. 1 SGB II (BSG of 16.2.2008 – B 4 AS 1/08 R).
2. Decisions of the social courts on citizen's income (SGB II)
2.1 – SG Berlin, judgment of May 6, 2024 – S 126 AS 141/22 –
2. If the final determination results in a claim for reimbursement and the job center has not advised the benefit recipient about an obvious possibility of withdrawing the application for final determination, the benefit recipient is to be placed in the position he would have been in had he declared the withdrawal before the administrative act became effective, within the framework of a social law restitution claim.
Principle www.sozialgerichtsbarkeit.de
1. An application for final determination pursuant to Section 41a Paragraph 3 of the German Social Code, Book II (SGB II) can be withdrawn until the decision on the application becomes effective.
2.2 – SG Kiel, Judgment of 28 June 2024 – S 33 AS 213/22 – Appeal pending before the Schleswig-Holstein Higher Social Court – L 6 AS 76/24 –
Citizen's allowance: Job centers must cover full rent costs for children when their parents are absent from their place of residence
Parents absent without permission: Full reimbursement of accommodation costs for the children
As decided by the Social Court of Kiel, judgment of 28.06.2024 – S 33 AS 213/22 – appeal pending before the Schleswig-Holstein Higher Social Court – L 6 AS 76/24 –
Children under 15 are entitled to citizen's allowance even if their parents are absent from their place of residence without permission and therefore do not receive citizen's allowance under Section 7b of the German Social Code, Book II (SGB II). Furthermore, they are entitled to housing benefits in the amount corresponding to their parents' share of the housing costs.
In the case already discussed in the August issue of Hempel's, a single mother and her child remained in her country of origin beyond the period of her approved absence. The Kiel Job Center therefore revoked her benefit entitlement for the days of her unauthorized absence.
The son subsequently requested that the Kiel Job Center also cover the portion of the accommodation costs attributable to his mother, for which she had not received benefits due to her unauthorized absence – a request the Kiel Job Center denied. The Social Court ruled in favor of the son.
Although accommodation needs are generally recognized according to the so-called head principle, meaning that the costs of accommodation are divided according to the number of people living in the apartment (BSG case law).
However, exceptions to this principle are recognized if the share of accommodation costs of a member of a household receiving benefits has been eliminated, for example due to a legally binding sanction.
According to BSG case law: Deviation from the head-share principle is possible for needs-related reasons
A deviation from the head-of-the-house principle is therefore possible for needs-based reasons if this is the only way to guarantee a dignified minimum standard of living for the other members of the household.
This was also the case here:
Due to the legally binding exclusion of the mother from benefits, the son's need for accommodation and heating costs was insufficiently covered, because the son ultimately had to cover his mother's share of the costs from his social assistance for this period.
Announced today by attorney Helge Hildebrandt, Kiel: www.sozialberatung-kiel.de
First published in HEMPELS 9/2024
Legal tip:
see SG Kiel, judgment of 28.06.2024 – S 33 AS 157/22 – pending before SH LSG – L 6 AS 76/24 –
Job center: Unauthorized absence of parents – children still entitled to citizen's allowance
Children under 15 years of age are also entitled to citizen's allowance if their parents have been absent from their place of residence without permission and are therefore excluded from citizen's allowance benefits.
3. Decisions of the State Social Courts on employment promotion law according to the (SGB III)
3.1 – LSG NRW, Judgment of 07.03.2024 – L 9 AL 87/22 – Appeal pending before the BSG under file number: B 11 AL 6/24 R
Unemployment benefit I: Unemployed persons can stipulate that the entitlement should not arise or should only arise at a later date
If the person applying for unemployment benefits has personally registered as unemployed with the employment agency and has exercised their right of determination under Section 137 Paragraph 2 of the German Social Code, Book III (SGB III) in such a way that the entitlement to unemployment benefits should (only) arise at a specific later date, more than three months in the future, then the accrual of the entitlement is generally not dependent on a further registration as unemployed, because the effect of the earlier registration has not expired.
The transitional provision of Section 447 Paragraph 1 of the German Social Code, Book III (SGB III) is not unconstitutional; in particular, it does not violate the general principle of equality under Article 3 Paragraph 1 of the German Basic Law (GG).
As recently decided by the Higher Social Court of North Rhine-Westphalia, judgment of 07.03.2024 – L 9 AL 87/22 – appeal pending before the Federal Social Court under file number: B 11 AL 6/24 R –
The LSG NRW does not follow the opposing view, which is held in the literature that, due to § 141 para. 1 sentence 3 SGB III ("A notification is also permissible if unemployment has not yet occurred, but the occurrence of unemployment is to be expected within the next three months"), the time interval between the registration as unemployed and the desired date of commencement of the basic entitlement should generally not exceed three months and that a new registration as unemployed must take place after three months.
There is no legal basis for such a restriction.
The referenced provision of Section 141 Paragraph 1 Sentence 3 of the German Social Code, Book III (in the version applicable from January 1, 2022, previously Section 141 Paragraph 1 Sentence 2 of the German Social Code, Book III) regulates a different situation and is intended (merely) to prevent unnecessary placement efforts due to premature registration as unemployed (Federal Social Court judgment of May 18, 2010 – 7 AL 49/08 R; Valgolio in Hauck/Noftz, German Social Code, Book III, Section 141, marginal note 44 with further references).
This legislative purpose provides no basis for interpreting the right of determination pursuant to Section 137 Paragraph 2 of the German Social Code, Book III.
Source www.sozialgerichtsbarkeit.de:
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG BW, Decision of 03.06.2024 – L 2 SO 1332/24 ER-B –
Social assistance: No provision of benefits to secure subsistence pursuant to Section 23 Paragraph 1 of the German Social Code, Book XII (SGB XII) for Union citizens (based on the Federal Social Court's judgment of March 29, 2022 – B 4 AS 2/21 R).
The legislator may regularly refer Union citizens to the need to secure their livelihoods by claiming social benefits in their home country as an expression of self-reliant self-help.
The Federal Constitutional Court has also already required a complainant to consider the possibility of meeting their needs abroad (Federal Constitutional Court [Chamber] decision of 4 October 2016 - 1 BvR 2778/13 -).
This is especially relevant given that the social welfare agency had already organized and financed a trip home for the applicant, including an accompanying person, but he then refused to undertake the trip home, even though it was medically reasonable for him to do so at that time.
The Senate cannot discern to what extent the applicant should still be in need of protection under these circumstances, beyond possible bridging benefits pursuant to Section 23 Paragraph 3 of the German Social Code, Book XII.
Source www.sozialgerichtsbarkeit.de:
4.2 – LSG Baden-Württemberg, judgment of 08/07/2024 – L 2 SO 1044/24 –
The court is not convinced that the standard allowance for the year 2020/2021 for social assistance recipients is unconstitutional.
The proceedings should not have been suspended and submitted to the Federal Constitutional Court pursuant to Article 100 Paragraph 1 of the Basic Law, as the court was not convinced of the unconstitutionality of the standard needs assessment.
The pending proceedings before the Federal Constitutional Court (Case No. 1 BvL 2/23 – referral decision of the Social Court Karlsruhe) did not include the question of whether the level of the monthly standard rates for the plaintiff's standard needs is constitutional.
Legal tip:
see also LSG BW, judgment of 07.08.2024 – L 2 SO 1323/24 – for the period 1 March 2023 to 29 February 2024 and for the period 2021 to March 2023 LSG BW, judgment of 15.01.2024 – L 2 SO 1812/23 –
5. Miscellaneous information on citizen's income, social assistance, asylum law, child supplement, housing benefit law and other legal codes
5.1 – BSG, Judgment of 19.09.2024 – B 9 SB 2/23 R –
Free public transport also for severely and significantly mobility-impaired residents of care homes receiving care assistance
Residents of care homes who receive assistance and whose mobility in road traffic is significantly impaired due to their severe disability are entitled to free public transport.
Although the exemption provision of Section 228 Paragraph 4 Number 2 of the German Social Code, Book IX (SGB IX) according to its wording only covers recipients of ongoing benefits securing their livelihood under the Twelfth Book of the German Social Code (SGB XII).
Nevertheless, beyond the wording, the receipt of assistance for care under the German Social Code, Book XII (SGB XII), is also sufficient as a prerequisite for entitlement, at least insofar as there is an entitlement to assistance for care in a retirement and nursing home.
This follows from an analogous application of the standard to residents of care homes in need of assistance, who belong to the social assistance system for securing their livelihood through the receipt of care benefits.
Unintended regulatory gap in the German Social Code, Book IX (SGB IX):
The system change from the Federal Social Assistance Act to the German Social Code, Book XII (SGB XII) in 2005 created an unintended regulatory gap in the SGB IX, in that residents of care homes who only receive assistance for care have fallen outside the scope of exemption, without it being apparent that this legal consequence was intended by the legislator.
There is no apparent objective reason for excluding these residents of the care home who are in need of assistance.
Source: www.bsg.bund.de
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
