1. Decisions of the Federal Social Court on social assistance (SGB XII), basic income support (SGB II) and employment promotion law (SGB III)
1.1 – BSG, judgment of 12/17/2024 – B 7 AS 9/23 R –
Federal Social Court (BSG): Income tax arrears not deductible from income – no additional needs allowance under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II)
Tax arrears cannot be claimed as additional needs by recipients of unemployment benefit II (ALG II).
It is also not tax-deductible.
Because this claim is not a tax payable on income within the meaning of Section 11b Paragraph 1 Sentence 1 Number 1 SGB II.
Tax arrears are also not to be included among the necessary expenses associated with generating income pursuant to Section 11b Paragraph 1 Sentence 1 Number 5 of the German Social Code, Book II (SGB II). This provision only covers taxes not included in Number 1, such as value-added tax.
An annual bonus payment constitutes assessable income, which was to be distributed over 6 months as a one-off payment.
Note from the Federal Social Court (BSG):
Cumulative consideration of both ongoing and one-off income is permissible.
The Federal Social Court clarifies that an employment allowance of 200 euros was to be deducted from the annual special payment in accordance with Section 11b Paragraph 1 Sentence 1 Number 6 in conjunction with Paragraph 3 of the German Social Code, Book II (SGB II).
The Senate has already confirmed that such cumulative consideration is permissible when regular and one-off income coincides (BSG of 18 May 2022 – B 7/14 AS 9/21 R – ).
Source: www.bsg.bund.de
1.2 – BSG, Judgment of 17.12.2024 – B 7 AS 17/23 R –
Federal Social Court (BSG): New allowance for retirement savings under SGB XII does not apply to citizen's income – company pensions are considered income under SGB II – pandemic tests can justify additional hardship needs
A company pension is considered income under the German Social Code, Book II (SGB II).
Before taking income into account in the calculation of unemployment benefit II, the deductions stipulated in § 11b SGB II must be made from it
The German Social Code, Book II (SGB II) does not provide for a regulation comparable to Section 82 Paragraph 4 of the German Social Code, Book XII (SGB XII), according to which recipients of subsistence assistance or basic income support in old age and in the event of reduced earning capacity under the German Social Code, Book XII (SGB XII) are allowed to deduct further amounts from their company pension.
A corresponding application of Section 82 Paragraph 4 of the German Social Code, Book XII (SGB XII) is precluded by the legislative history and the purpose of the privilege in the SGB XII.
Because the legislator typically intended to cover the period after the end of working life, people in this phase of life are not among the group of persons entitled to benefits under the German Social Code, Book II (SGB II).
Furthermore, the Federal Social Court notes:
Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is also applicable to needs related to the COVID-19 pandemic.
Tests are also eligible for additional benefits in principle because they are not included in the standard allowance due to their cost or type. This is not contradicted by the regulation for a one-off payment of €150 due to the COVID-19 pandemic according to Section 70 of the German Social Code, Book II (SGB II).
Source: www.bsg.bund.de
1.3 – BSG, judgment of 12/18/2024 – B 8 SUN 8/23 R –
Can contributions to a funeral expenses insurance policy be deductible from income as reasonable contributions to a private insurance policy even if the insurance benefit includes inheritance law advice?
BSG: Funeral insurance that includes inheritance law advice is also deductible from pension income
Although a funeral expenses insurance policy that also includes inheritance law advice does not serve the purpose of the law, it does not automatically render such policies inappropriate, even if they are taken out while receiving benefits.
Rather, it must be accepted – insofar as it cannot be shown separately – as long as the total monthly premium is not disproportionately high compared to other insurance policies offered on the market. There is no indication of this in the present case.
Upon reaching the standard retirement age, there was a sufficient individual reason, inherent in the beneficiary's person, for taking out the insurance. The sum insured of €5,000 was appropriate, as was the monthly premium.
Source: www.bsg.bund.de
1.4 – BSG, judgment of 12/17/2024 – B 11 AL 10/23 R –
Unemployment insurance – entitlement to unemployment benefits – qualifying period – compulsory insurance relationship for prisoners – days off work
Federal Social Court: Federal Social Court strengthens unemployment benefit entitlement for prisoners – prison work also insured on non-working days
Unemployment benefits: Days off work in prison count towards qualifying periods.
Prisoners can accrue qualifying periods for unemployment benefits during their incarceration through paid work. This includes days off between work periods, sick days, or other days without pay.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG NRW, Decision of 05.12.2024 – L 12 AS 1047/24 B ER – www.justiz.nrw.de
No citizen's allowance for sole shareholders and managing directors of limited liability companies if reasonable self-help is possible
1. The undistributed profit of a GmbH cannot be attributed to the sole shareholder and managing director as income pursuant to Section 11 of the German Social Code, Book II (SGB II), if the share capital is not secured (see also the decision of the Higher Social Court of Saxony-Anhalt of 23 May 2023 – L 2 AS 128/23 B ER –).
2. However, a sole shareholder and managing director is not in need of assistance within the meaning of the citizen's allowance if he has the possibility of paying himself a managing director's salary and thus his need for assistance under the SGB II is avoided.
3. If the managing director of a GmbH, of which he is the sole shareholder, has concluded a contract in which he waives the payment of his managing director's salary and secures his livelihood instead of using the profits of his GmbH, and he uses this to increase the assets of a third party (his GmbH) by paying in the share capital, the contract is contrary to public policy and void pursuant to Section 138 Paragraph 1 of the German Civil Code (BGB).
4. The principles developed by the Federal Social Court (BSG) regarding available resources do not contradict this, because the applicant is only dependent on himself – albeit in the guise of his sole shareholder position in the GmbH – to arrange a salary payment.
This provides an immediate and direct possibility to cover the need oneself (cf. BSG judgment of 23.03.2021 – B 8 SO 2/20 R –; BSG judgment of 27.09.2011 – B 4 AS 202/10 R –).
The principle of subsidiarity in state welfare benefits precludes entitlement to benefits if existing opportunities for short-term self-help are not utilized.
2.2 – Saxon State Social Court, Judgment of 09.12.2024 – L 7 AS 150/20 – www.sozialgerichtsbarkeit.de
Guidelines
For a single-person household in the comparison area of the city of Freital (district of Saxon Switzerland-Eastern Ore Mountains) a coherent concept (“concept of January 2013 in the version of the revision of 2019”) is available for the period from July 2013 to October 2014, taking into account a further development report.
Note on
Unemployment Benefit II – Accommodation and Heating – Single-Person Household in the Comparison Area of the City of Freital (District of Saxon Switzerland-Eastern Ore Mountains) in Saxony – Adequacy Assessment – Coherent Concept of the Basic Income Support Provider – Period from July 2013 to October 2014 – Data Collection and Analysis – Formation of Comparison Areas – Representativeness and Validity – Heating Costs
2.3 – Saxon State Social Court. Judgment of 09.12.2024 – L 7 AS 358/24 – www.sozialgerichtsbarkeit.de
Guidelines
For a single-person household in the comparison area of the city of Freital (district of Saxon Switzerland-Eastern Ore Mountains), a coherent concept (“concept of January 2013 in the version of the revision of 2019” and “index update of June 2014 in the version of the revision of 2019”) is available for the period from July 2013 to October 2014 and for the update period from November 2014 to October 2016, taking into account a further development report.
Note on
Unemployment Benefit II – Accommodation and Heating – Single-Person Household in the Comparison Area of the City of Freital (District of Saxon Switzerland-Eastern Ore Mountains) in Saxony – Adequacy Assessment – Coherent Concept of the Basic Income Support Provider – Period from July 2013 to October 2014 and Update Period from November 2014 to October 2016 – Data Collection and Analysis – Comparison Area Formation – Representativeness and Validity – Heating Costs
3. Decisions of the social courts on citizen's income
3.1 – SG Karlsruhe, Judgment of – S 12 AS 442/24 – www.landesrecht-bw.de
Regarding the time limit for filing a lawsuit if the notice of objection was not served
SGB II: A recipient of citizen's allowance has no claim against the JobCenter for additional needs for food if the lawsuit, filed after the deadline, is inadmissible and therefore had to be dismissed
The fact that the JobCenter does not meet the legal requirements under the Administrative Service of Documents Act does not preclude the legal validity of the notification of an objection decision.
It is sufficient if the notification is made by way of an opening through transmission to an electronic lawyer's mailbox.
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Social Court Munich, Judgment of 20 November 2024 – S 46 SO 282/24 – www.sozialgerichtsbarkeit.de
Social assistance: If the applicant declares in writing a waiver of integration assistance benefits, there is no reason to review integration assistance benefits and entitlements.
To revoke the rejection notice for a wheelchair traction device and refer the matter back to the administrative authority if, before and after the forwarding of the benefit application pursuant to Section 14 of the German Social Code, Book IX (SGB IX), the applicant does not cooperate and the authorities do not investigate the facts.
Guiding principles
for the revocation of the rejection notice for a wheelchair traction device and referral back to the administrative authority if, before and after the forwarding of the benefit application pursuant to Section 14 of the German Social Code, Book IX (SGB IX), there is no cooperation from the applicant and no investigation of the facts by the authorities.
5. Miscellaneous information on citizen's income, social assistance, asylum law, child supplement, housing benefit law and other legal codes
5.1 – Newsletter from Attorney Volker Gerloff – 13- 2024
More information: www.ra-gerloff.de
5.2 – Press release of the Saxon State Social Court of 17 December 2024 regarding the Saxon State Social Court's decision of 13 November 2024 – L 7 AS 379/24 B ER –
No hardship case / no special hardship within the meaning of Section 12 Paragraph 1 Sentence 2 No. 5 last clause, No. 7 SGB II in the case of a mere minor exceedance of the now legally regulated living space limit
No entitlement to citizen's allowance because of house 7 square meters too large (Tacheles Association)
The 7th Senate of the Saxon State Social Court ruled in preliminary injunction proceedings (L 7 AS 379/24 B ER) on November 13, 2024, that an owner-occupied house is not excluded from consideration as realizable assets under Section 12 Paragraph 1 Sentence 2 No. 5 of the German Social Code, Book II (SGB II), simply because it only slightly exceeds the relevant living space of up to 140 m².
Further information: www.justiz.sachsen.de
Note:
First publication Tacheles case law ticker week 49/2024
Citizen's allowance: A sole resident of a 147 sqm house is not entitled to a citizen's allowance subsidy, or no citizen's allowance entitlement if the house is too large
Source: www.gegen-hartz.de
1. Because a general increase in living space, up to which a self-occupied house property is not to be considered as an asset, by 10% is excluded according to the legal standardization of the limit values and a hardship provision for the recognition of a higher living space.
2. A slight exceedance of the living space limit, even if it is only 7 square meters, does not constitute a particular hardship in the development of the property.
3. The application for legal aid was to be rejected because the intended legal action did not offer sufficient prospects of success (regarding the constitutionally required standard for assessing the prospects of success, see, e.g., the Federal Constitutional Court decision of 30 May 2022 – 1 BvR 1012/20 –).
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – SG Stuttgart – Decision of 21 October 2024 – Case No.: S 9 AY 3626/24 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
Provision of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 (Orientation assistance Detlef Brock)
Continued with attorney Sven Adam
6.2 – SG Hildesheim, Judgment of 01.10.2024 – S 27 AY 48/22 –
Social assistance: For recipients of transfer payments, a move is considered unreasonable for the sake of €11.20
A Pakistani family does not have to move for the sake of €11.20, because considering the economic viability of the move, such a move would not have been reasonable for the family
The monthly difference to the generally reasonable costs amounted to €11.20.
Not so – recipients of citizen's income/social assistance will forgo moving for such an amount
People who would just barely not be eligible for benefits under the German Social Code Book XII or II (SGB XII or SGB II) would, according to general experience, refrain from moving in order to reduce such an amount, because the additional costs expected from a move would exceed this amount many times over and thus make a move not worthwhile.
This must also be taken into account for recipients of transfer payments, especially since the additional costs would also have to be borne by the taxpayer.
Practical tip: LSG Lower Saxony-Bremen, Judgment of November 27, 2014 – L 8 SO 112/11 –
It is always necessary to examine all the circumstances of the individual case to determine whether, even if the reasonable limit is exceeded, the assumption of the actual costs is justified in exceptional cases (e.g., due to subjective unreasonableness of the change of residence for health reasons or due to obvious uneconomicalness).
Source: Attorney Sven Adam, Göttingen
6.3 – LSG NRW, Decision of 08.11.2024 – L 20 AY 16/24 B ER – www.sozialgerichtsbarkeit.de
The applicant stated that €228 could not possibly cover the most essential needs
LSG NRW: Less money for asylum seekers if they lack cooperation.
Financial support for asylum seekers can be restricted if the recipients do not cooperate sufficiently in obtaining travel documents.
The woman is legally obligated to leave the country, but cannot be deported because she lacks travel documents. The asylum seeker has been granted temporary leave to remain and receives benefits under the Asylum Seekers' Benefits Act.
Due to insufficient cooperation in obtaining a passport, the responsible authority limited financial support for the woman, who lives in communal accommodation, to benefits for food, housing and heating, as well as personal and healthcare. This left her with €228 per month.
The State Social Court essentially upheld the first instance decision and dismissed the appeal.
However, the Essen judges ordered the authority to pay the woman an additional 15 euros on top of the approved 228 euros.
According to the State Social Court, benefit recipients may only receive limited benefits if they prevent deportation for reasons attributable to themselves – for example, by not cooperating in obtaining travel documents that could be used to carry out a deportation.
Source: www.evangelisch.de
Court note:
€228 could not possibly cover the most essential needs.
In the context of the present proceedings for the granting of preliminary legal protection, the Senate considers it appropriate instead to refer to individual needs amounts, which are detailed by Schwabe in the Journal for Social Welfare (ZfF 2024, 29 ff.).
Because Schwabe's calculations, which he has regularly made available in the aforementioned journal since 2007 (after the introduction of basic income support benefits in the SGB II and SGB XII in 2005) regarding the basic income support benefit regimes (since 2013 including the AsylbLG), are widely used in administrative practice and jurisprudence and are – as far as can be seen – largely unchallenged.
The following amounts of need to be taken into account for benefits restricted under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) result for the year 2024:
€196.10 for food (Section 1 to Section 5 Paragraph 1 RBEG), €34.20 for personal hygiene (from Section 12), €13.01 for healthcare (Section 6), totaling €243.31. Applying Section 3a Paragraph 4 Sentence 2 AsylbLG, this results in a rounded monthly need of €243 to be taken into account. This leads to a provisional monthly additional benefit entitlement for the applicant since September 2024 in the amount of (€243 / €228 =) €15.
I would like to thank all readers for their loyalty and attention. 2024 was a difficult year, and 2025 will not be any better.
On behalf of Tacheles e. V., I wish everyone a happy and peaceful Christmas!
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
