1. Decisions of the Federal Constitutional Court on the German Social Code, Book II (SGB II)
1.1 – Federal Constitutional Court, decision of 19 July 2024 – 1 BvL 2/23 –
Federal Constitutional Court: Inadmissible judicial referral regarding the constitutionality of the one-off payments made in May 2021 and July 2022 to recipients of basic income support benefits under the German Social Code, Book II (SGB II), to compensate for pandemic-related additional expenses
Source: www.bundesverfassungsgericht.de
Practical tip:
SG Karlsruhe, judgment of 28.08.2024 – S 12 AS 2069/22 –
Regarding the blocking effect of the one-off payments under Sections 70 and 73 of the German Social Code, Book II (SGB II) compared to the catch-all provision under Section 21 Paragraph 6 of the SGB II and its constitutionally compliant interpretation in light of the inflation running in 2021 and 2022
The proceedings S 12 AS 2069/22 are suspended until the Federal Constitutional Court has decided in the judicial review proceedings 1 BvL 2/23 (whether §§ 70, 73 of the SGB II are compatible with the fundamental right to a dignified minimum standard of living and the general principle of equality).
Attention:
Since the full text of the Federal Constitutional Court's decision is now available, the Social Court of Karlsruhe must make a new decision.
2. Decisions of the Federal Social Court on social assistance (SGB XII)
2.1 – Federal Social Court (BSG), Judgment of 08 May 2024 – B 8 SO 4/23 R – Lower court: Higher Social Court of North Rhine-Westphalia (LSG NRW), Judgment of 16 February 2023 – L 9 SO 387/21 – in Tacheles Case Law Ticker Week 37/2023
Social assistance – home care – care allowance – caregiver – receipt of old-age pension – pension insurance – contributions – compulsory insurance
For the reimbursement of expenses for the contributions of a caregiver for adequate old-age security in accordance with Section 64f Paragraph 1 SGB XII.
BSG: Federal Social Court announces when pension contributions must be covered in cases of family caregiving
Guidance by Detlef Brock:
The decisive factor in determining assistance for care as a social welfare benefit is whether, based on a prognostic assessment of the circumstances known at the relevant assessment date, it can be expected that the caregiver will not have to claim basic income support in old age.
If the caregiver lives in a marriage or a marriage-like partnership, the level of security already achieved by the partner must also be taken into account.
Normally, long-term care insurance covers the contributions. If the person requiring care is not covered by long-term care insurance, the social welfare agency may be obligated to cover the pension contributions. This is particularly possible for those who are unable to work or who come from abroad.
Full text now available at: www.sozialgerichtsbarkeit.de
Legal tip:
LSG Hessen, Judgment of 05.07.2017 – L 4 SO 139/16 –
Persons not insured under the social long-term care insurance scheme who receive care allowance from the social welfare provider are additionally entitled to reimbursement of the expenses for their caregiver's contributions to their appropriate old-age security.
3. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
3.1 – LSG Saxony, decision of 28.10.2024 – L 4 AS 326/24 B ER
Guiding principles
1. On the interpretation of a (also retroactive) rejection notice from the job center during the current approval period of a provisional approval of basic income support benefits and on the admissible preliminary legal protection against it.
2. Objections and appeals against a decision on the final determination of a previously provisionally granted basic income support benefit have suspensive effect.
4. Decisions of the social courts on employment promotion law (SGB 3)
4.1 – SG Heilbronn, judgment of December 13, 2023 – S 7 AL 497/22 SDE
Exercise of discretion when asserting a claim for reimbursement
Guiding principles www.sozialgerichtsbarkeit.de
When asserting a claim for reimbursement (§ 4 sentence 1 SodEG), the necessary discretion to be exercised must be taken into account.
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – LSG Baden-Württemberg, judgment of 09/19/2024 – L 7 SO 1754/23 –
Guiding Principles www.sozialgerichtsbarkeit.de
The concept of negotiation, which leads to a suspension of the expiry of a claim for reimbursement of costs under social assistance law pursuant to Section 102 of the German Social Code, Book XII (SGB XII) in conjunction with Section 103 Paragraph 3 Sentence 2 of the SGB XII, is to be interpreted broadly. It is sufficient if the debtor engages in discussions regarding the validity of the claim or its scope.
In pending negotiations, the suspension of the limitation period is retroactive to the point in time at which the creditor asserted their claim. The rules of civil law regarding limitation periods apply mutatis mutandis to the extinction of the claim for reimbursement of costs. They must therefore be incorporated in accordance with the purpose and intent of the claim for reimbursement of costs under social welfare law.
5.2 – LSG NRW, Judgment of 23 May 2024 – L 9 SO 49/23 – Appeal pending before the BSG, file number: B 8 SO 8/24 R
Social assistance: The wish of spouses to be buried side by side must be taken into account when examining the necessity of funeral costs in accordance with Section 74 of the German Social Code, Book XII (SGB XII).
The costs of a burial plot for married couples must be covered by the social welfare agency as necessary funeral expenses, in accordance with Article 6 Paragraph 1 of the Basic Law (contrary to the judgments of the Social Court of Heilbronn of July 9, 2013 – S 11 SO 1712/12 and the Social Court of Duisburg of March 27, 2014 – S 52 SO 64/13; concurring in the judgment of the Social Court of Karlsruhe of March 29, 2022 – S 2 SO 2888/20 – following the decision of the Higher Social Court of Munich of October 25, 2018 – L 8 SO 294/16) – guiding principle by Detlef Brock).
Source: LSG NRW
6. Miscellaneous information on citizen's income, social assistance, asylum law, child supplement, housing benefit law and other legal codes
6.1 – LSG Berlin-Brandenburg, judgment of 04/06/2024 – L 11 SB 274/23 –
Guiding principles www.berlin.de
1. A notice of legal remedies must be correct, complete and unambiguous, even if it contains information that may not be mandatory (following BSG, decision of March 9, 2023 – B 4 AS 104/22 BH – juris).
2. The designation of only one secure transmission method within the meaning of Section 65a Paragraph 4 Sentence 1 of the Social Court Act (SGG) – here, the sender-authenticated De-Mail – in the instructions on legal remedies in the notice of objection creates the incorrect impression that this is the only option. Therefore, the instructions on legal remedies are incomplete and misleading.
Practical tip on citizen's income:
SG Berlin, decision of 11.10.2024 – S 142 AS 2627/24 –
Until December 31, 2023, the following applied: according to Section 36a Paragraph 2 Sentence 2 of the German Social Code, Book I (SGB I), the electronic form, which replaces the written form, is satisfied by an electronic document that is provided with a qualified electronic signature.
Due to the new regulation of Section 36a Paragraph 2a SGB I, from 1 January 2024 onwards, according to its No. 2 lit a), the written form can also be replaced by transmitting a declaration electronically signed by the declarant to the authority from a special electronic lawyer's mailbox (beA).
The new regulation therefore means that the written form can be replaced by a simply signed declaration from beA; thus, the qualified electronic signature is not required in this respect.
Editor's note:
My thanks go to the presiding judge of the Social Court Frankfurt/Oder in a case concerning citizen's income and to the transmitting lawyer.
6.2 – Benefit claims: Double the effort – Article by attorney Helge Hildebrandt on the Federal Social Court (BSG) ruling of September 11, 2024, B 4 AS 6/23 R
If it is unclear whether a person entitled to benefits is entitled to a specific social benefit, but if, in the event that there is no entitlement to this social benefit, an entitlement to another social benefit is possible, this other social benefit should always be applied for as a precaution.
More information: https://sozialberatung-kiel.de
7. Questions and answers about the citizen's income, compiled by Detlef Brock – please observe copyright protection
7.1 – Are reporting requirements with subsequent repeated sanctions subject to the principle of proportionality in cases of intellectual disability of the person in need of assistance?
Job centers' reporting requirements may be disproportionate if special counselling and support services were initially required for integration into employment, which were not granted without apparent reason.
It is recognized that in particularly complex individual cases, the prior psychological, social and legal stabilization of the person concerned is an indispensable prerequisite for any subsequent integration into working life – even with targeted measures, which are lacking here anyway (LSG NRW, Judgment of 23 January 2010, L 1 AS 36/09 R -).
In individual cases, the job center may not insist on the formal enforcement of reporting obligations supplemented by sanctions.
While it is true in principle that a persistent refusal to cooperate should not automatically lead to a complete disregard for the requirement of necessary cooperation in administrative proceedings, thereby effectively advocating for unconditional basic income support, this would be incompatible with the principles of demanding and supporting the individual and must be rejected.
However, a different rule applies if, in individual cases, it cannot be assumed that the refusal is freely determined and independent of deficits inherent in the person concerned, because there are such significant limitations in the psychological/health area and corresponding barriers to placement that additional and case-specific instruments of care and support within the meaning of Section 16a No. 3 SGB II, Section 33 Paragraph 6 SGB IX are required.
An exceptional case, as described above, always exists when the job center has not taken this sufficiently into account.
From the objective point of view of the job center, reporting requirements are always an unsuitable means of integrating those in need of assistance and are therefore disproportionate if, at the time the reporting requirements were issued, it was already beyond any doubt that the person in need of assistance would not comply with the reporting requirements without accompanying, if possible prior, support and care services for psychological, social and legal stabilization within the meaning of Section 16a No. 3 of the German Social Code, Book II (SGB II), and would therefore not be able to be integrated into working life in the foreseeable future.
Conclusion:
Repeatedly imposing sanctions on a benefit recipient with a mental disability is disproportionate if special support services are required. In this case, the job center cannot resort to the usual methods of mass administration.
In such a case, a JobCenter may not resort to enforcing formal reporting obligations in accordance with Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III) by means of administrative coercion, but rather must initiate special, case-specific measures to resolve the conflict.
Practical tip: Information from the Federal Ministry of Labor and Social Affairs (BMAS) and the Federal Employment Agency
. The Federal Ministry of Labor and Social Affairs has published updated information on the content and implementation of Section 16k of the German Social Code, Book II (SGB II) (comprehensive support). This financing instrument came into effect on July 1, 2023, with the implementation of the second stage of the citizen's allowance. Support can be provided by job centers as well as by third parties commissioned by them.
Source: www.arbeitsagentur.de
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Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
