DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
City of Stuttgart – Office for Social Affairs and Participation,
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
Included:
AOK Baden-Württemberg,
represented by the board of directors of AOK Baden-Württemberg –
Head Office, Presselstr. 19, 70191 Stuttgart
The 9th Chamber of the Stuttgart Social Court
on May 27, 2025 in Stuttgart
through Judge xxx (additional supervising judge)
without oral proceedings:
I. The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the standard benefit level 1 in the amount of the standard benefits of 2024 as well as contributions to health and long-term care insurance in the amount of €230.95 per month from 22 January 2025 until a final decision on the applicant's objection of 22 January 2025.
The respondent shall bear the applicant's extrajudicial costs.
II. The applicant is granted legal aid without installment payments, with the appointment of lawyer Adam.
REASONS
I.
The parties are in dispute over the granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1 (in the amount of the standard benefit of 2024) and the assumption of contributions to health and long-term care insurance.
The unmarried applicant is housed in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act.
The respondent initially granted the applicant basic benefits from 1 January 2025 without a formal decision, pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b of the AsylbLG, in the amount of standard benefit level 2 according to the lower benefit rates published in the Federal Gazette for 2025. By decision dated 23 January 2025, she confirmed this benefit amount.
It did not cover contributions to voluntary health and long-term care insurance after the mandatory follow-up insurance.
By letter dated 22 January 2025, the applicant lodged an objection against the implied granting of benefits; the already pending action of 7 May 2025 – S 9 AY 1950/25 – is directed against the decision on the objection.
On the same day, the applicant applied to the Stuttgart Social Court for an interim injunction, arguing that, following the decision of the Federal Constitutional Court on the analogous benefits of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), he was entitled to the standard benefit level 1 in the amount of the rates from 2024 and, in view of the commencement of mandatory follow-up insurance (OAV) as a result of the case law of the Federal Social Court (BSG) on Section 188 of the German Social Code, Book V (SGB V), also to the reimbursement of the costs of health and long-term care insurance contributions.
The applicant requests that
the respondent be ordered, by way of preliminary injunction, to grant the applicant provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of January 22, 2025, against the de facto provision of benefits by the respondent, taking into account the legal opinion of the court, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, and to grant the applicant legal aid with the appointment of attorney Sven Adam – Göttingen.
The respondent requests that
the application be dismissed.
The respondent argues that there is no legal basis for the standard benefit level 1. The Federal Constitutional Court's decision refers only to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). In light of the Ministry of Justice's letter of August 26, 2024, the respondent is also not authorized to cover health and long-term care insurance contributions, as there is no legal basis for this. Furthermore, as an authority, the respondent is bound by the amounts published in the Federal Gazette. Moreover, the applicant has failed to demonstrate grounds for an injunction. It is not apparent that the applicant's financial resources are exhausted, and he has not explained what disadvantages he would face if he were referred to the outcome of the main proceedings.
By decision of 19.3.2025, the court necessarily joined the applicant's health and long-term care insurance provider as a party to the proceedings.
Regarding the facts of the case and the further details thereof, reference is made to the attached paper administrative file of the respondent and the electronically maintained court file.
II.
The application for an interim injunction is admissible and well-founded.
The provisional legal protection here is governed by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court of first instance may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages.
This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait until a decision on the merits due to particular urgency (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (§ 86b paragraph 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 paragraph 2 of the Code of Civil Procedure (ZPO)).
With regard to the standard benefit level 1, the applicant has credibly demonstrated both the entitlement to and the grounds for the order.
The court is convinced that the claim already arises from the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21).
With this decision, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle from Article 20 Paragraph 1 GG, which guarantees a dignified minimum standard of living, insofar as a standard allowance for a single adult is only recognized at the level of standard allowance level 2, and ordered that, until new regulations are enacted, Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Allowance Determination Act and Sections 28a and 49 of the SGB XII shall apply mutatis mutandis to beneficiaries of benefits under Section 2 Paragraph 1 Sentence 1 of the AsylbLG, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard allowance at the level of the respective current standard allowance level 1 shall be used as the basis for calculating benefits for each single adult.
This undoubtedly also results in the unconstitutionality of the parallel regulation of Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG, which also provides for lower benefits than the analogous benefits under Section 2 AsylbLG (see also: Hessian State Social Court, decision of 20 December 2022 – L 4 AY 28/22 B ER; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG, marginal note 44).
There is also a right to an order with regard to the granting of the standard benefit rates after 2024/protection of existing rights.
The entitlement to this arises directly from the statutory provision, since the grandfathering provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), which according to the wording of Section a is directly applicable to the calculation of the monetary amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (for details see Social Court Marburg, decision of 14 February 2025 – S 16 AY 11/24 ER –, juris Rn. 21 – 46; aA without further explanation Social Court Heilbronn, decision of 17 February 2025 – S 15 AY 181/25, in juris Rn. 23 f).
Because Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that the monetary amounts according to Paragraphs 1 and 2 are to be updated on January 1st of each year in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code in conjunction with the Ordinance on the Adjustment of Standard Needs Levels pursuant to Section 40 Sentence 1 Number 1 of the Twelfth Book of the Social Code.
Section 28a paragraph 5 of the German Social Code, Book XII (SGB XII) stipulates the following: "If the adjustment according to paragraphs 2 to 4 results in euro amounts for the standard benefit levels that are lower than the euro amounts applicable in the previous year, the euro amounts determined for the previous year shall continue to apply until a subsequent adjustment results in higher euro amounts."
Section 3a paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) refers to the entire regulation of Section 28a of the Twelfth Book of the Social Code (SGB XII) with the wording "in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code in conjunction with the regulation on the updating of standard benefit levels pursuant to Section 40 sentence 1 number 1 of the Twelfth Book of the Social Code" and not just individual paragraphs.
The wording does not allow for an exclusion of the grandfathering clause of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), nor does it correspond to the will of the legislator (Social Court Marburg, decision of 14 February 2025 – S 16 AY 11/24 ER – juris Rn. 21 – 46).
The court also does not share the opinion of its appeals panel at the Baden-Württemberg State Social Court (decision of April 29, 2025 – L 7 AY 918/25 ER-B –), which, without convincing justification, does not consider Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) to be encompassed by the concept of the rate of change. Paragraph 5 undoubtedly is, because a provision stipulating that a change is not to be made (for reasons of vested rights) is, like the calculation bases of the preceding paragraphs, substantively part of the concept of the "rate of change pursuant to Section 28a Paragraph 5 SGB XII." The legislature has amended the Asylum Seekers' Benefits Act (AsylbLG) several times in recent years, but never limited its application in Section 3a Paragraph 4 AsylbLG to Paragraphs 1 to 4 of Section 28a SGB XII, so the vested rights provision also applies within the scope of Section 3a AsylbLG.
Grounds for an injunction also exist. The mere fact that basic social security benefits are affected is not sufficient to generally assume an irreparable disadvantage that cannot be rectified in the main proceedings (see Federal Constitutional Court, decision of 19 September 2017 – 1 BvR 1719/17, juris, para. 8; Baden-Württemberg State Social Court, decision of 28 August 2019 – L 7 AY 2735/19 ER-B, para. 8, juris).
In view of the prevailing prospects of success in the main proceedings, as outlined in the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21) and the grounds for the referral decision of the Federal Social Court of 26 September 2024 – B 8 AY 1/22 R – juris, the court is of the opinion that a restrictive jurisprudence focused on demonstrating urgency (cf. Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG, para. 425 with further references) is not appropriate in the present case.
Against this background, the court considers the monthly difference of €63 at issue here, which amounts to approximately 15% of the currently approved standard allowance, to be sufficient to establish an urgent need (cf. regarding the standard allowance 2023 also State Social Court of Mecklenburg-Vorpommern, decision of 21 January 2021 – L 9 AY 27/20 B ER, para. 25, juris).
He has also credibly demonstrated his right and grounds for an order with regard to contributions to voluntary health and long-term care insurance.
The applicant is also entitled to contributions to voluntary health insurance.
It is true that the legislator did not provide for compulsory health insurance under the Asylum Seekers' Benefits Act (AsylbLG), but rather provides for the existing need for health services via Sections 4 and 6 of the AsylbLG.
In light of the decision of the Health Insurance Senate of the Federal Social Court (BSG) of 10 March 2022 (B 1 KR 30/20 R – juris), these benefits are not equivalent to health insurance coverage under Section 188 Paragraph 4 Sentence 2 of the German Social Code, Book V (SGB V), which is why the mandatory follow-up insurance under Section 188 Paragraph 4 Sentence 1 of the SGB V takes effect after the end of compulsory insurance employment, so that the applicant has no way to avoid compulsory insurance.
In view of these circumstances, the respondent must grant the applicant the contributions – as was actually done until 31 December 2024 – as a benefit under Section 6 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
Paragraph 1, sentences 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) contain the following regulations:
"Other benefits may be granted, in particular, if they are essential in individual cases to secure livelihood or health, are necessary to meet special needs of children, or are required to fulfill an administrative obligation to cooperate. The benefits are to be granted as benefits in kind, or, in special circumstances, as cash benefits."
According to § 188 SGB V, the applicant is obliged to pay contributions to health and long-term care insurance.
If he pays this amount of €230.95 (notice dated 17.3.2025; p. 56 GA), then, in view of his benefits amounting to €786.84 (notice dated 17.3.2025; quadr. 2/8 VA), of which €389.94 alone is allocated to accommodation, he is no longer able to cover his living expenses with a remaining amount of €165.95.
The granting of this benefit is therefore essential to secure his livelihood. In light of these circumstances, the respondent's discretion is reduced to zero.
The benefits must also be provided in cash, since contributions to health insurance cannot be made in kind, meaning that special circumstances exist.
There is also a ground for an order in the sense of a special urgency, because if payment is made the applicant cannot cover his living expenses with only €165.95, while if payment is not made he is exposed to enforcement attempts by his health insurance company and late payment surcharges.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and takes into account that the application was successful in its entirety.
In view of the sufficient prospects of success and the applicant's need, legal aid was to be granted, whereby only the public treasury has the right to appeal.
The subject of the dispute in the context of the preliminary injunction is the regular approval period of one year (Lower Saxony-Bremen State Social Court, decision of 17.8.2017 – L 8 AY 17/17 B ER –, juris), thus the difference between standard benefit level 1 (2024) and 2 of €63,- times 12, therefore €756,-, plus the health and long-term care insurance contributions of €230.95 per month times 12, thus €2,771.40, i.e. a total of €3,527.40, which significantly exceeds the appeal amount of €750,-.
The following is information on legal remedies.
