1. Decisions of the Federal Social Court on social assistance and asylum benefits
1.1 – BSG, judgment of 09/26/2024 – B 8 SUN 13/22 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – assumption of contributions to statutory pension insurance – social court proceedings – subject of dispute
Federal Social Court (BSG): Social welfare providers must take into account special needs according to § 33 para. 1 SGB XII
In its ruling of September 26, 2024 in Kassel, the Federal Social Court clarified that voluntary contributions to the statutory pension insurance must also be taken into account when calculating the needs of a social assistance recipient.
In principle, the contributions claimed are considered appropriate if the payment of the contributions is projected to reduce the basic income support requirement in old age.
Only those contributions that recipients of income just above the social assistance threshold would be willing to make, taking into special consideration their individual circumstances, in order to achieve improved security that does not significantly exceed the basic income support level, would prove to be appropriate in terms of amount.
Source: www.bsg.bund.de
Practical tip:
LSG NRW, Judgment of 08.09.2022 – L 9 SO 160/19 –
The assumption of the maximum contributions to the statutory pension insurance is inappropriate within the meaning of Section 33 Paragraph 1 of the German Social Code, Book XII, and was not possible for the social welfare provider as a discretionary benefit.
If it is not possible for citizens living in modest circumstances, but not in need of social assistance, to make maximum contributions to the pension insurance, then such expenses are also not reasonable within the meaning of Section 33 of the German Social Code, Book XII (SGB XII).
1.2 – BSG, judgment of 07/25/2024 – B 8 AY 6/23 R
Asylum seeker benefits law – rejection of asylum application – restriction of entitlements – benefits in kind – breach of duty
According to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), may social benefits for refugees be limited to the bare necessities such as food and accommodation?
BSG: Limitation of entitlement is not a sanction
The Federal Social Court (BSG) made it clear that it is focusing solely on the expiry of the transfer deadline for asylum seekers who are required to leave the country.
The Federal Social Court will also refer the question to the ECJ as to whether the restriction of entitlements is compatible with Union law.
BSG: Limitation of entitlement is not a sanction
The Federal Social Court has clarified that Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) is not comparable to the sanctions under the German Social Code, Book II (SGB II).
The reduction in benefits is not a sanction, but rather is linked to reduced needs due to the impending departure, explains Janda – Prof. Dr. Constanze Janda from the Chair of Social Law and Administrative Science at the University of Speyer
Breaches of duty as a prerequisite for the offense
Therefore, a breach of duty as a prerequisite for the offense is not relevant.
The court stated that the restriction of benefits does not require the fulfillment of subjective elements of the offense, because it is not to be understood as a sanction for not leaving the country.
Instead, the Federal Social Court (BSG) based its ruling solely on the expiry of the transfer deadline.
Is a constitutionally compliant interpretation of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) not necessary?
For social law expert Janda, the referral to the European Court of Justice suggests that the Federal Social Court (BSG) does not consider a constitutionally compliant interpretation of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) to be necessary.
Full text available here: www.rechtsprechung-im-internet.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG BW, judgment of 03/05/2024 – L 2 AS 2270/23 –
Reversal of the burden of proof towards the job center: Citizen's benefit recipient must prove
Citizen's income: Citizen's income recipients must prove that they handed over €14,000 in cash to their father
In principle, the objective burden of proof for the illegality of the administrative act to be revoked lies with the job center (see LSG Baden-Württemberg, decision of 15 February 2018 – L 3 AS 4874/16 -).
However, a reversal of the burden of proof can be justified if a party involved has a particularly close relationship to the evidence.
This can be assumed if events rooted in his personal sphere or in his sphere of responsibility cannot be clarified and the timely clarification of the facts is made more difficult or prevented by omitted information or insufficient cooperation in clarifying the facts (cf. BSG judgment of June 15, 2016 – B 4 AS 41/15 R -).
Source: www.socialgerichtsabilities.de
2.2 – LSG BW, Decision of 07.08.2024 – L 2 AS 2187/24 ER-B –
Citizen's allowance: Ukrainian mother with 2 children is not entitled to citizen's allowance if she does not submit the necessary fictitious residence permit
Because the granting of benefits fails due to the exclusion of benefits according to § 7 para. 1 SGB II.
Furthermore, no entitlement to benefits under the exception to the benefit requirements and exclusions of benefits stipulated in Section 7 Paragraph 1 Sentences 1 and 2 of the German Social Code, Book II (SGB II), is possible, since the applicants no longer possess the certificate of fictitious residence required under Section 81 Paragraph 5, 3 of the German Residence Act (AufenthG).
According to the relevant immigration authority, this permit was not extended due to a serious suspicion of suppressed Hungarian citizenship.
The fact that the applicants may (also) hold Ukrainian citizenship is irrelevant.
In the cases referred to in Section 74 of the German Social Code, Book II (SGB II), the granting of benefits is not contingent on the existence of a specific citizenship, but rather requires the existence of a certificate of deemed citizenship.
Simply applying for one is also insufficient, as the legislator deliberately chose to require an issued certificate of deemed entitlement as a prerequisite for receiving benefits (see Wunder in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 74 1st revision [as of 04.08.2023], para. 16, who points out that during the legislative process, it was examined whether solutions were conceivable to grant access to benefits even without a certificate of deemed entitlement. However, the legislator did not adopt this proposal).
Source: www.socialgerichtsabilities.de
Legal tip regarding Section 74 of the German Social Code, Book II (SGB II):
Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of May 3, 2024 – L 12 AS 476/24 B ER
Citizen's allowance based on Section 74 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) – claims of foreigners with a fictitious residence permit
Guiding principle of the Tacheles Association e. V.
1. A Nigerian national is entitled to citizen's benefit pursuant to Section 74 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), because, according to Section 74 Paragraph 1 Sentence 1 SGB II, contrary to Section 7 Paragraph 1 Sentence 2 Numbers 1 and 2, benefits under this book are also granted to persons who have undergone identification procedures pursuant to Section 49 of the German Residence Act (AufenthG), have applied for a residence permit pursuant to Section 24 Paragraph 1 of the German Residence Act (AufenthG), and have been issued a corresponding certificate of deemed residence pursuant to Section 81 Paragraph 5 in conjunction with Paragraph 3 of the German Residence Act (AufenthG). According to Sentence 2, Section 7 Paragraph 1 Sentence 1 Number 4 and Section 8 Paragraph 2 of the German Social Code, Book II (SGB II) do not apply.
2.3 – Saxon State Social Court, Judgment of 19.09.2024 – L 7 AS 891/20 –
Guiding principles www.sozialgerichtsbarkeit.de
Even for benefit periods ending before 01.08.2016, provisionally granted benefits are not considered to be definitively determined if a final decision is requested in due time (clarifying distinction to the Senate decision of 16.05.2024 – L 7 AS 938/21 – juris).
2.4 – LSG Hessen, Judgment of 05.07.2024 – L 7 AS 429/22 – Appeal pending before the BSG – B 7 AS 83/24 –
A Romanian national is not entitled to further social benefits if it is reasonable for him to leave for his home country.
He was only entitled to bridging benefits for one month, because with regard to regular subsistence assistance under Sections 17, 19, and 27 et seq. of the German Social Code, Book XII (SGB XII), the applicant is excluded for the same reasons as from benefits under the German Social Code, Book II (SGB II); the exclusion criterion in Section 23 Paragraph 3 Sentence 1 of the SGB XII corresponds to Section 7 Paragraph 1 Sentence 2 of the SGB II (guideline by Detlef Brock).
Guiding Principles www.sozialgerichtsbarkeit.de
1. The hardship clause of Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII) is not fulfilled if departure to the country of origin is possible and reasonable. When assessing the reasonableness of departure, individual family, social, and professional ties must be considered.
2. Even if the immigration authorities have not taken any measures to terminate residency, the hardship provision under Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII) does not lead to a permanent entitlement to benefits. The entitlement to benefits exists only for a temporary need and requires the existence of special circumstances.
Practical tip:
a. Opinion:
LSG Darmstadt, judgment of 31 October 2022 – L 4 SO 133/22 B ER, according to which an entitlement to benefits exists as long as the state has not determined that the right to freedom of movement does not exist.
2.5 – LSG Saxony-Anhalt, Judgment of 06.03.2024 – L 2 AS 467/15 –
Guiding principles www.sozialgerichtsbarkeit.de
1. In the German Social Code, Book II (SGB II), there is no horizontal loss offsetting between several commercial enterprises.
2. The deduction of expenses as business expenses requires, in addition to the accrual in the current approval period, a factual connection to the commercial income received during this period.
3. It follows from these principles that expenses of a self-employed person which are not related to the currently carried out commercial activity, but are incurred because of another (dissimilar) and already completed activity, cannot be recognized as business expenses of the current activity.
4. Provisions created from current operating income to cover only possible, i.e., not yet due, claims for reimbursement of this income (here: commissions) are not operating expenses and therefore cannot be taken into account as reducing profits under the German Social Code, Book II (SGB II).
Practical tip:
In the area of the German Social Code, Book II (SGB II), offsetting income and losses from several businesses is not permitted (no “horizontal loss offsetting”; cf. Federal Social Court (BSG), judgment of February 17, 2016 – B 4 AS 17/15 R –).
LSG NRW, Judgment of 15 November 2016 – L 2 AS 993/16 – legally binding – confirmed by BSG, Decision of 3 July 2017 – B 14 AS 15/17 B –
Under the German Social Code, Book II (SGB II), income and losses from multiple businesses are not offset against each other
See also LSG Berlin-Brandenburg, judgment of 26 February 2014 – L 18 AS 2232/11 – ; SG Stade, court order of 2 October 2014 – S 32 AS 289/14 –
2.6 – LSG Hessen, Judgment of 28.02.2024 – L 6 AS 75/23 – BSG – B 4 AS 67/24 BH –
Citizen's income: Job centers are not required to pay for driver's licenses without a concrete job offer
The job center will only pay for the driver's license if the employer certifies that they will hire the applicant as soon as they have a driver's license.
A general improvement in application opportunities is not sufficient for the Hessian State Social Court.
The judges in Darmstadt also found no discrimination against refugees.
According to the court (judgment of 28.02.2024 – L 6 AS 75/23), there is no entitlement under Section 16 Paragraph 1 Sentence 2 No. 2 SGB II in conjunction with Section 44 SGB III, because the funding is linked to the existence of a concrete conditional job offer.
The Federal Social Court, case number B 4 AS 67/24 BH, rejected the recipient's application for legal aid by decision of 01.07.2024.
Source: www.landesrecht-hessen.de
2.7 – LSG NSB, judgment of 08/29/2024 – L 11 AS 75/21 –
Job center: Lay judge compensation reduces citizen's allowance – entitlement –
Lower Saxony-Bremen State Social Court: Citizen's income – Recipients must report lay judge remuneration to the job center
Because compensation for loss of earnings from serving as a lay judge is considered income for the purposes of citizen's allowance.
They are not to be classified as earmarked benefits based on public law regulations within the meaning of Section 11a Paragraph 3 of the German Social Code, Book II (SGB II), and therefore not as income exempt from being counted as benefits, according to the Lower Saxony-Bremen State Social Court (LSG Niedersachsen – Bremen), judgment of August 29, 2024 – – L 11 AS 75/21 –.
For the purpose of compensation for loss of earnings is to secure the livelihood of the recipient (cf. Federal Social Court, judgment of May 26, 2011 – B 14 AS 93/10 R -).
According to the judges of the Lower Saxony-Bremen State Social Court, the calculation in this case should not be based on a total annual allowance of 2,400.00 euros, but the recipient of the benefits argued otherwise.
Because according to the clear wording of Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) in the version applicable here (until 2020), a monthly allowance of 200.00 euros is decisive.
The fact that a monthly tax-free allowance was to be assumed here is also confirmed by legal developments.
Only with the repeal of Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) and the transfer of the preferential treatment of voluntary or secondary employment income to Section 11a Paragraph 1 No. 5 of the SGB II, effective from July 1, 2023, by the Citizen's Income Act of December 16, 2022 (Federal Law Gazette I, p. 2328), has there been a realignment from the monthly to the annual principle and from the exemption principle to an income preferential treatment.
Source: landessocialgericht.niedersachsen.de
Note by Detlef Brock:
Regarding the citizen's income, the following applies from 2023: Section 11a Paragraph 1 No. 5 SGB II – Only in 2023, with the Citizen's Income Act, did a realignment towards the annual principle take place.
Expense allowances or income from secondary employment activities that are tax-exempt under Section 3 Number 12, Number 26 or Number 26a of the Income Tax Act, provided that this income does not exceed an amount of 3 000 euros in the calendar year.
Since July 1, 2023, only the annual allowance is decisive for the citizen's income, so that higher amounts can also be paid out monthly, as long as the total annual amount does not exceed 3,000 euros.
3. Decisions of the social courts on citizen's income
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG NRW, judgment of 05/23/2024 – L 9 SUN 49/23 –
Social assistance: Entitlement to a shared burial plot for married couples
The costs of a family burial plot must be covered if it is intended for the burial of spouses side by side
The costs of a burial plot for married couples must be covered by the social welfare provider as necessary funeral expenses, taking into account Article 6 Paragraph 1 of the Basic Law (contrary to the judgment of the Social Court of Heilbronn of 09.07.2013 – S 11 SO 1712/12 and the judgment of the Social Court of Duisburg of 27.03.2014 – S 52 SO 64/13 – guiding principle by Detlef Brock).
Source: www.socialgerichtsabilities.de
Practical tip:
The fee for a family grave can be covered by the social welfare provider according to § 74 SGB XII.
For the father's undisputed wish for a joint burial with his deceased wife after his death falls under the protection of personality derived from Article 1 Paragraph 1 of the Basic Law, which must also be respected post-mortem.
Article 6 of
the Basic Law (GG) must also be considered. According to this article, marriage and family are under the special protection of the state. Therefore, burial in an existing (family) grave of the spouse is regularly considered by the court to be among the reasonable wishes of the deceased and must be taken into account as a reasonable wish pursuant to Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII) (Social Court Karlsruhe, Judgment of March 29, 2022 – S 2 SO 2888/20 – following the decision of the Higher Social Court Munich of October 25, 2018 – L 8 SO 294/16).
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – SG Karlsruhe, decision of 25-09-2024 – S 12 AY 2449/24 ER –
No restriction of the entitlement to asylum seeker benefits due to the granting of international protection in Greece
Guiding principles www.landesrecht-bw.de
People with a refugee background face the threat of inhuman or degrading treatment within the meaning of Article 3 ECHR if they return to Greece.
Practical tip: RA Volker Gerloff Newsletter – 11/2024 –
SG Berlin: No reduction in benefits according to § 1a para. 4 AsylbLG
It is stated once again that a breach of duty is a prerequisite for a reduction in benefits.
Entering Germany cannot constitute a breach of duty, as this action is irreversible.
Failure to leave cannot constitute a breach of duty because, in any case, departure for Greece is unreasonable (Berlin Social Court, August 28, 2024 – S 187 AY 305/24 ER).
5.2 – Social Court Speyer – Decision of 17 September 2024 – Case No.: S 15 AY 28/24 ER
Legal provisions: 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
Reducing the benefits for benefit recipients housed in communal accommodations compared to single adult benefit recipients is unconstitutional
However, based on the decision of the Federal Constitutional Court of 19 October 2022 (1 BvL 3/21), the adjudicating chamber assumes that the reduction of benefits for beneficiaries housed in communal accommodation compared to single adult beneficiaries is unconstitutional and that instead (possibly until a change in the law) the benefit rates must be applied in accordance with Sections 3, 3a Paragraph 1 No. 1, 3a Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG).
At this point, she adopts the statements of the Lower Saxony-Bremen State Social Court in its decision of June 29, 2023 (L 8 AY 18/23 B ER – Rn. 10):
Continued with attorney Sven Adam
6. Miscellaneous information on citizen's income, social assistance, asylum law, child supplement, housing benefit law and other legal codes
6.1 – Citizen's Income/Social Assistance: How you can defend yourself against cost-cutting measures by job centers or social welfare offices
Brief guide to defending against cost-cutting demands from the job center/social welfare office (SGB II/SGB XII) with reference to relevant court rulings, published by gegen-hartz.de.
More information: www.gegen-hartz.de
Note:
My latest published article is also relevant:
Job center's cost reduction request ineffective due to school environment
A cost-reduction request from the job center must be adapted to individual circumstances if they are documented in the files.
This includes recording and considering the individual circumstances of minor children due to their school environment and the fact that, in the case of single parents, an existing and necessary care structure is not accessible throughout the entire comparison area.
More information: www.gegen-hartz.de
6.2 – Asylum for Afghan women: All are persecuted – ECJ (Judgment of 4 October 2024 – C-608/22 and C-609/22)
The mere fact that an asylum seeker is a woman from Afghanistan can justify granting her protection in the EU. Whether the applicant would actually and specifically face persecution upon return to her country of origin does not need to be examined, the European Court of Justice ruled on Friday (Judgment of 4 October 2024 – C-608/22 and C-609/22).
Continue reading: rsw.beck.de
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
