1. Decisions of the state social courts on citizen's income (SGB II)
1.1 – LSG BB, judgment of August 14, 2024 – L 1 AS 382/21- www.berlin.de
Proof of the seriousness of contractual relationships between relatives as a prerequisite for the granting of basic income support/citizen's allowance benefits
Citizen's allowance: Only those in arrears with rent payments can claim benefits for accommodation and heating from the job center (§ 22 para. 1 SGB II)
Needs for accommodation and heating are to be denied or not covered by the job center because expenses for accommodation and heating have not been incurred in the sense of an obligation to pay rent.
If the sole debtor of the rent payments is the divorced husband or father, who also fulfills the payment obligation, the ex-wife or daughter cannot claim any housing costs from the job center, even if the ex-husband offsets the paid rent against the daughter's maintenance.
Rather, this is an unlawful reduction of the maintenance payment, which is not based on a valid civil law claim.
The fact that the daughter accepted this reduction did not eliminate the illegality of the offsetting.
This does not create any payment obligation for the daughter. Nor is there any evidence of a sublease agreement between the ex-husband/father of the child and his ex-wife or daughter, from which a legally valid obligation to pay sublease rent could arise.
Therefore, the following applies:
For the acceptance of actual expenses for accommodation and heating, it is necessary that the person in need of assistance was exposed to a valid and not permanently deferred rent claim during the respective benefit period (BSG, judgments of June 5, 2014 – B 4 AS 32/13 R –, of May 7, 2009 -B 14 AS 31/07 R- with reference to judgment of March 3, 2009 – B 4 AS 37/08 R; LSG Berlin-Brandenburg, judgment of September 30, 2021 – L 1 AS 702/19 –).
It does not violate Article 6 Paragraph 1 of the Basic Law (GG) in conjunction with Article 3 Paragraph 1 GG if contractual relationships between family members are subjected to an arm's length comparison (cf. Federal Constitutional Court – BVerfG, decision of 7 September 2000 – 1 BvR 444/00 –).
Practical tip: LSG Berlin-Brandenburg, 06.03.2024 – L 32 AS 39/24 B ER –
Rental agreements between close relatives are not generally invalid
1.2 – LSG BB, judgment of 11/20/2024 – L 18 AS 447/23 –
SGB II benefits – withdrawal – assets – savings account – grandparent/parent-child relationship – entitlement to claims
Job Center: Father's/Grandfather's savings account of €450,000 is not considered assets for citizen's income purposes
Three substantial savings accounts belonging to the father/grandfather do not reduce the citizen's allowance – the assets of the adult son and his two grandchildren – because their need for assistance (§ 9 SGB II) was not eliminated. The asset limits (§ 12 SGB II) were not exceeded, despite the grandfather's savings deposits of €450,000 across three savings accounts.
Citizen's allowance: In the case of savings books, the person in need of assistance is not bound by the legal appearance of account ownership.
If the father of an adult recipient of citizen's allowance and also the grandfather of his grandchildren has deposited substantial amounts of cash into several savings accounts, this is not considered an asset and does not reduce the need for assistance of the household if they were all unable to access the assets and they were not available for living expenses.
If a close relative opens a savings account in the name of a child or grandchild without handing over the savings book itself, it can generally be concluded from this behavior that the donor wishes to retain control over the savings balance until their death.
The Federal Social Court has also adopted this civil law jurisprudence, and these principles have applied continuously ever since (BSG, judgment of 24.05.2006 – B 11a/AL 7/05 R – guiding principle Detlef Brock).
Conclusion: Grandfather empties the accounts due to fears of claims from the Job Center
The fact that the savings accounts were emptied after the JobCenter had informed the recipients of assistance that interest had been credited to these savings accounts is, moreover, rather evidence that the recipients of assistance were not entitled to these credits, as they were apparently "withdrawn" from the accounts by the father or grandfather due to feared claims by the JobCenter.
Practical tip: Ownership not decisive for account ownership.
There is no legal principle that would require a benefit recipient to adhere to the apparent legal status of account ownership. The German Social Code, Book II (SGB II), contains neither a regulation nor any indication that fictitious assets—that is, assets that do not belong to the account holder—must be taken into account under Section 12 of the SGB II.
Legal tip:
The assessment of eligibility for assistance (§ 9 SGB II) in the case of existing savings assets must be based on the right of disposal.
In the case of savings accounts, the person in need of assistance is not bound by the apparent legal status of account ownership (see SG Karlsruhe, judgment of 16.10.2014 – S 13 AS 735/14; SG Gießen, judgment of 15.07.2014 – S 22 AS 341/12; LSG Niedersachsen-Bremen, judgment of 23.04.2012, L 9 AS 695/08 and LSG Hamburg, judgment of 25.08.2011 – L 5 AS 33/08).
2. Decisions of the State Social Courts and Social Courts on social assistance (SGB XII)
2.1 – LSG BW, Judgment of 07.11.2024 – L 7 SO 3379/21 – Appeal allowed
Guiding principles www.sozialgerichtsbarkeit.de
Assisted living may also be available even with care level 0 if there are significant limitations in everyday competence due to dementia (left open in the Federal Social Court, judgment of June 30, 2016 – B 8 SO 6/15 R -). The locally responsible social welfare agency is the one in whose area the person entitled to benefits actually resided before moving into assisted living.
The duration of the stay is irrelevant, provided there is no intention to return to the previous place of residence and whether a habitual residence has been established there.
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – SG Magdeburg, Judgment of 02.12.2024 – S 20 AL 193/21 – and S 20 AL 222/20
Guiding principle www.sachsen-anhalt.de
It is in keeping with the nature of the position of a GmbH managing director that the shareholders, who entrust the well-being of the company to the managing director in a special way, are not primarily concerned with the performance of a certain number of working hours, but rather with the result of the managing director's work effort.
If a specific working time is not agreed upon in the employment contract of a GmbH managing director, then, due to the lack of a reference point, a loss of work and consequently a loss of earnings due to loss of work cannot be determined within the framework of the regulations on short-time work compensation.
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – Stuttgart Social Court – Decision of 20 December 2024 – Case No.: S 11 AY 3017/24 ER
Legal norms: Section 86a of the Social Court Act (SGG), Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) – Keywords: Analogous benefits, abuse of rights, duty to cooperate, Stuttgart Social Court
Granting of analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in preliminary legal protection proceedings
1. The mere fact that a person entitled to benefits – as in this case – has been granted a temporary suspension of deportation for persons with unclear identity pursuant to Section 60b of the Residence Act (AufenthG) under the Asylum Seekers' Benefits Act (AsylbLG) is not an abuse of rights. Rather, it must be examined whether the conditions for an abuse of rights, according to the principles developed by the Federal Social Court (BSG), are met in the specific case.
2. Although delayed cooperation in obtaining substitute travel documents over several years is generally to be regarded as socially unacceptable (cf. Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 2 AsylbLG (as of 19.11.2024), para. 161), such a situation is not clearly evident to the Chamber in this case.
3. Regardless of the above, the Chamber also finds the subjective component (culpability) of the abuse of rights highly questionable. This component is only fulfilled if intent exists both with regard to the factual circumstances and with regard to influencing the duration of the stay.
4. However, in the Chamber's opinion, a personal interview would be essential, since it concerns the determination of a personal accusation of guilt, of which the trial judge must be convinced with near certainty.
In this context, the burden of proof for both the subjective and objective components lies with the authority, i.e., the respondent (see Grube/Wahrendorf/Flint/Leopold, 8th ed. 2024, AsylbLG § 2 para. 34, beck-online; BeckOK SozR/Korff, 74th ed. 1.9.2024, AsylbLG § 2 para. 12, beck-online). Any remaining doubts are therefore to the detriment of the respondent.
Source: Attorney Sven Adam
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
