1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) – Citizen's Allowance
1.1 – BSG, judgment of 09/11/2024 – B 4 AS 12/23 R –
Basic income support for job seekers – exclusion of benefits for foreigners without a right of residence or residing for the purpose of seeking employment – EU citizens – exception to this rule – five years of habitual residence in Germany – freedom to provide services and freedom of establishment
Can the exercise of the right to freedom of movement under EU law pursuant to Section 2 Paragraph 2 Number 3 of the Freedom of Movement Act/EU 2004 as a non-established service provider preclude a "habitual residence" in the federal territory within the meaning of Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II)?
Polish mother and 2-year-old son are entitled to citizen's income/social assistance
Guiding principle: Detlef Brock
1. Job centers may not exclude EU citizens from citizen's income after a five-year stay in Germany.
2. To be eligible for this social benefit, it is not absolutely necessary that the legal residence has been continuously reported to the authorities.
3. In doing so, the Federal Social Court reaffirms its previous case law (see BSG of 20.9.2023 – B 4 AS 8/22 R -)
The guiding principle set out by Detlef Brock
in Section 7 Paragraph 1 Sentence 4 Half-Sentence 1 of the German Social Code, Book II (SGB II) requires only an uninterrupted habitual residence of five years from the first official registration in Germany. Only minor interruptions of residence – for example, a short visit to one's home country – are permissible; otherwise, the period begins anew (Federal Social Court [BSG] judgment of March 29, 2022 – B 4 AS 2/21 R –; similarly, BSG judgment of September 20, 2023 – B 4 AS 8/22 R –).
Only periods of habitual residence that occur after registration with the relevant registration authority are relevant.
The application of Section 7 Paragraph 1 Sentence 4 Half-Sentence 1 of the German Social Code, Book II (SGB II) is not precluded by the fact that the plaintiff has not been continuously registered in Germany since the time of her registration, which is relevant for the start of the five-year period.
The Senate has since ruled that continuous registration is not required if there has always been a habitual residence since the first registration (BSG of 20.9.2023 – B 4 AS 8/22 R -).
Source: www.socialgerichtsabilities.de
2. Decisions of the State Social Courts on Citizen's Allowance (SGB II)
2.1 – LSG Mecklenburg-Vorpommern, Judgment of 10 February 2025 – L 10 AS 230/20 – Appeal allowed
Citizen's income: No deduction for school fees when applying for BAföG (Federal Training Assistance Act)
Principle
1. The payment of school fees is not an expense necessarily connected with generating income if a basic possibility of education exists – without school fees.
Practical tip a. Opinion
of the Hamburg Higher Social Court, decision of 18 June 2019 – L 4 AS 155/19 B ER –
School fees can be deducted from BAföG (Federal Training Assistance Act) as a necessary expense if there is no reasonable free alternative to the chosen training.
2.2 – LSG Hessen, Judgment of 22.01.2025 – L 6 AS 74/22 –
Guiding principles www.sozialgerichtsbarkeit.de
1. Limiting the formation of the comparison area to the area of responsibility of the competent authority is not objectionable.
2. The inclusion of apartments with substandard amenities in the data sets only precludes the assumption of a conclusive concept if this occurs to a statistically relevant extent and therefore distorts the determination of rent ceilings (cf. following: BSG, judgment of 17 September 2020 – B 4 AS 22/20 R –, para. 36, juris).
3. The updating of the concept by referring to the Hessian consumer price index for residential rents is not objectionable. The updating of the concept after just over two years therefore still meets this requirement.
2.3 – LSG Hessen, Judgment of 22.01.2025 – L 6 AS 73/22 –
Guiding principles www.sozialgerichtsbarkeit.de
1. Limiting the formation of the comparison area to the area of responsibility of the competent authority is not objectionable.
2. The inclusion of apartments with substandard amenities in the data sets only precludes the assumption of a conclusive concept if this occurs to a statistically relevant extent and therefore distorts the determination of rent ceilings (cf. following: BSG, judgment of 17 September 2020 – B 4 AS 22/20 R –, para. 36, juris).
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Darmstadt, Judgment of 03.03.2025 – S 32 AS 615/22 –
Guiding principles www.sozialgerichtsbarkeit.de
1. The starting point for interpreting a lawsuit is what the plaintiff wants to achieve with the lawsuit.
2. If a case worker states via email "otherwise a rejection notice must be issued", this does not constitute a regulation and therefore not an administrative act, nor does it constitute an assurance.
3.2 – SG Potsdam, decision of 17 January 2025 – S 33 AS 894/24 ER – confirmed by LSG BB, decision of 6 February 2025 – L 9 AS 83/25 B ER –
Citizen's allowance: No exclusion from benefits in case of violation of the residence regulation under Section 12a of the Residence Act
A Ukrainian citizen is entitled to citizen's allowance even if they violate the residency regulations, because Section 36 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) does not apply in this case.
More information: www.gegen-hartz.de
Practical tip
SG Neuruppin, decision of 19.04.2024 – S 17 AS 224/24 ER –
Attorney Volker Gerloff commented:
SG Neuruppin (not legally binding): Violation of residency requirement must not exclude someone from citizen's income
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Saxony-Anhalt, Judgment of 19.12.2024 – L 2 AL 3/23 – Appeal allowed
Guiding principles www.sozialgerichtsbarkeit.de
1. For the granting of the success-related completion bonus pursuant to Section 131a Paragraph 3 No. 2 SGB III aF (now: Section 87a Paragraph 1 No. 2 SGB III) it is sufficient if the causal link between the further training promoted pursuant to Section 81 SGB III and the successfully passed final examination is maintained.
2. This also applies if a second repeat examination is successfully carried out at the next possible date within one year of completion of the further training, even if the employee has taken up employment in the meantime.
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – LSG Baden-Württemberg, decision of 11.02.2025 – L 7 SO 3615/24 B –
Social welfare: No emergency legal protection due to lack of cooperation despite room temperature of only 5 degrees Celsius in the homeless shelter
The person in need of assistance sought to obtain higher heating costs for fan heaters through an expedited legal process
The need for legal protection was therefore denied because the applicant could reasonably have achieved her request even without involving the Social Court.
The applicant had previously contacted the respondent regarding the heating electricity costs and had been repeatedly informed by the respondent, for example in two emails dated April 25, 2024, that she should submit corresponding documentation (electricity bills, receipts). However, this was not done, not even in connection with the renewed application of November 20, 2024.
The applicant could therefore have enabled the respondent to make a favorable decision for her by submitting appropriate evidence of her current and, in particular, past heating costs early on and before the start of winter, without there being any need for urgent judicial protection.
Practical tip:
Electricity costs for fan heaters, e.g., in the bathroom, are eligible heating costs for citizen's allowance/social assistance (BSG, judgment of 10.05.2011 – B 4 AS 100/10 R -).
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
