1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) - citizen's allowance and on social assistance (SGB XII)
1.1 – BSG, judgment of November 21, 2024 – B 8 SO 5/23 R
Social assistance – request for information – dependent relative – exceeding the income limit – annual income threshold – income – assets
Federal Social Court (BSG) on parental support: Adult children only have limited obligations to provide information
Tiered information procedure according to the Family Relief Act (BSG – Press release)
1. Following the restructuring of the regulations concerning the transfer of maintenance claims from parents to their adult children, including those relating to nursing home costs, by the Relatives Relief Act, the preliminary information procedure is tiered and initially limited to information on income.
2. A potential maintenance claim by parents against their adult children, including for the costs of long-term care, is only transferred to the social welfare agency since January 1, 2020, if the child's income exceeds €100,000 per year. The law presumes that this income threshold will not be exceeded; this presumption can be rebutted.
3. If there are sufficient indications that the annual income limit has been exceeded, the social welfare agency may further investigate whether the limit has actually been exceeded. This is the case if there is a certain probability that the children have corresponding income levels.
4. If he requests information from the adult child, this information must be limited to income.
5. Only when it is definitively established that the assets exceed the €100,000 threshold, thus making a transfer of the maintenance claim possible, may the person liable for maintenance also demand information about the assets of the relative obligated to pay maintenance. This phased approach is necessary in light of the systematic structure and legislative history of the regulation.
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II) / Citizen's Allowance
2.1 – LSG Saxony, decision of 07.04.2025 – L 7 AS 33/25 B ER –
Citizen's income: Despite waiving his salary, a sole shareholder and managing director of a UG (limited liability company) is not entitled to ALG 2 (unemployment benefit II)
Guiding principles www.sozialgerichtsbarkeit.de
A waiver of remuneration by the sole shareholder-managing director of a limited liability company is irrelevant for benefits to secure their livelihood if the company can continue to cover its ongoing operating expenses due to a bank balance (distinction from LSG Hamburg v. 27.01.2022 – L 4 AS 23/20 – juris).
Practical tip
from the Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of December 5, 2024 – L 12 AS 1047/24 B ER – www.sozialgerichtsbarkeit.de:
No citizen's allowance for sole shareholders and managing directors of limited liability companies (GmbHs) if reasonable self-help is possible.
Guiding principle Detlef Brock
1. The undistributed profit of a GmbH cannot be attributed to the sole shareholder and managing director as income pursuant to Section 11 SGB II if the share capital is not secured (see also LSG Saxony-Anhalt decision of 23.05.2023 – 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.
2.2 – LSG Saxony-Anhalt, decision of 25.02.2025 – L 5 AS 68/24 –
Guiding principles www.sozialgerichtsbarkeit.de
1. The specific assignment to a measure for activation and vocational integration pursuant to Section 16 SGB II in conjunction with Section 45 SGB III (already regulated in detail in an integration administrative act) is assessed in terms of its value according to Section 144 Paragraph 1 Sentence 1 SGG.
2.3 – LSG NRW, Decision of 20 March 2025 – L 7 AS 44/25 B – www.sozialgerichtsbarkeit.de
Citizen's Allowance: Job centers are not obligated to send out initial application documents for citizen's allowance
The applicant argues that the job center is obligated to send him application documents for his initial application for citizen's allowance to his home address. This also follows from the judicially established principle of the social law restitution claim (§§ 14 and 15 SGB I).
Detlef Brock states – Guiding Principle
1: A job center is not obligated to send application documents for unemployment benefit II (ALG II) to an applicant's home address. Such a delivery constitutes, at most, a special service provided by a benefit provider.
2. A claim for restitution under social law is also excluded because no corresponding breach of the job center's duty to advise or provide information is apparent or has been alleged (§§ 14 and 15 SGB I).
3. In particular, such a failure would not lie in the – as complained of by the applicant – omission of sending application documents to the plaintiff's home address, since such a sending represents at most a special service provided by a service provider.
Note regarding the timely notification of the required follow-up application by the Job Center
It is recognized in case law that the basic income support provider/job center is obliged to point out the necessity of follow-up applications (BSG, judgments of 18.01.2011 – B 4 AS 29/10 R and – B 4 AS 99/10 R -).
If he fails to provide such a notice, he may be obliged, on the basis of the social law restitution claim, to provide benefits even before the specific application is submitted.
2.4 – LSG NRW, Judgment of 27 November 2024 – L 12 AS 116/23 – Appeal allowed – www.sozialgerichtsbarkeit.de
Citizen's allowance: Job center must pay €256 for the repair of 2 eyeglass lenses
Detlef Brock adds – guiding principle:
The job center may have to cover the costs of repairing glasses, even if there is a primary claim against the health insurance company, but this claim has not actually been realized.
Considerations of fault do not lead to a loss of entitlement if there is a current need to be met.
If a person seeking help has a claim against a third party, but this claim is not realized – for whatever reason – and therefore cannot actually be used to cover the need, then there is simply a lack of readily available funds that would counteract the need for assistance.
The job center is obliged to ensure the medical minimum subsistence level by covering the costs of repairing glasses in the event that these costs are not actually covered by health insurance.
However, the amount of the claim is limited to what is medically necessary.
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – Social Court Lüneburg, Judgment of January 28, 2025 – S 19 AS 44/22 – www.sozialgerichtsbarkeit.de
Facility pursuant to Section 19 of the German Social Code, Book VIII (SGB VIII); costs of accommodation and heating; father-mother-child facility
Citizen's income: Rent payment as social assistance during a stay in a mother-father-child facility
Detlef Brock – Guiding Principle
1. The costs for the family apartment for a recipient of benefits under the citizen's allowance during their stay in a facility for mothers/fathers and their children (§ 19 SGB VIII) are borne by the social welfare provider in accordance with §§ 67, 68 para. 1 SGB XII.
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – SG Landshut, Judgment of 14.03.2025 – S 10 SO 58/23 – Appeal allowed
Social assistance: Reimbursement of health insurance contributions is considered income
Detlef Brock states – Guiding Principle
1: A premium refund from a private health insurance company constitutes income within the meaning of social welfare law. This corresponds to the jurisprudence of the Federal Social Court (BSG) within the framework of the German Social Code, Book II (SGB II).
2. A refund of contributions in the form of a credit note from a private health insurance company is to be counted as income towards the entitlement to benefits under basic income support for the elderly and those with reduced earning capacity.
3. The credit of 500 euros is to be considered a one-off income and thus reduce the need for benefits in the following month.
4. The reimbursement of contributions is neither a benefit defined by purpose and content nor a grant within the meaning of social assistance law.
Note:
The appeal was admitted because the question was already pending before the Federal Social Court (BSG) as an appeal on points of law under file number B 8 SO 10/22 R and could not be decided on the merits only because the action had been withdrawn due to the death of the plaintiff in that case.
In light of the refusal to grant leave to appeal in the appellate court (see Hessian State Social Court, judgment of 13 October 2021 – L 4 SO 217/19 –), it can be assumed that the Federal Social Court had already affirmed the fundamental importance of the case itself, since it obviously granted leave to appeal following a complaint against the refusal to grant leave to appeal.
Note by Detlef Brock – Reimbursement of private health insurance premiums with the citizen's allowance
According to the case law of the Federal Social Court (judgment of 20.02.2020 – B 14 AS 52/18 R -), a refund of contributions from private health insurance is considered a taxable one-off income, comparable to a tax refund.
For recipients of citizen's income, this means that
, according to Section 11 Paragraph 2 of the Second Book of the Social Code – Citizen's Income, Basic Income Support for Job Seekers (SGB II), the so-called accrual principle applies to the consideration of income.
Income is attributed to the month in which it is received. The intended purpose and legal basis are irrelevant when applying the accrual principle.
When premium refunds from private health insurance are paid out, these must be taken into account as income reducing benefits, according to the cash flow principle, like other incoming income.
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Saxony-Anhalt, decision of 25.02.2025 – L 8 AY 20/24 B ER –
Guiding principles www.sozialgerichtsbarkeit.de
1. The granting of only limited benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is not to be considered in every case of onward migration between member states of the European Union.
2. Thus, an Afghan extended family (parents and seven minor children) who have received international protection in Greece, but have nevertheless travelled on to Germany and are submitting another asylum application here, may be entitled to basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) if, due to specific circumstances, there is reason to fear that they would face social deprivation and homelessness upon returning to Greece.
Practical tip
LSG Munich, decision of 10.03.2025 – L 11 AY 58/24 B ER –
Restriction of benefits when protection is granted by another Member State
Guiding principles: www.gesetze-bayern.de
A restriction of benefits pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) in individual cases where protection is granted by another Member State is not unconstitutional without the presence of further unwritten elements of the offense (here, the reasonableness of returning to the Member State granting protection) and, in the case of abusive entry, likely also does not violate EU law due to the lack of applicant status. (Paragraphs 23 and 29)
The restriction of benefits under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is lawful if a person entitled to benefits has been granted international protection in another EU Member State and this protection continues to exist. (Paragraph 21) (Editorial Note)
The constitutionally compliant interpretation of Section 1a Paragraph 1 Sentence 3 of the AsylbLG requires that the additional benefits provided for in Sections 3, 3a, and 6 of the AsylbLG be granted if this is necessary in the individual case according to the needs of the person entitled to benefits. (Paragraph 24) (Editorial Note)
The restriction of benefits under Section 1a Paragraph 4 Sentence 2 of the AsylbLG does not violate European law if the level of benefits, taking into account the possibility of considering special needs individually upon separate application, complies with Article 20 Paragraph 1 of the Reception Directive. (Paragraph 30) (Editorial Note)
5.2 – LSG NRW, Judgment of 17 February 2025 – L 20 AY 18/19 – Appeal allowed – www.sozialgerichtsbarkeit.de
Section 19 paragraph 6 of the German Social Code, Book XII (SGB XII) is not applicable via a statutory reference in the Asylum Seekers' Benefits Act (AsylbLG)
Guiding principle Detlef Brock
1. Section 19 Paragraph 6 of the German Social Code, Book XII (SGB XII) applies only to benefit claims under the SGB XII, but not to those under Section 4 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
2. An analogous application is ruled out because there is no unintended regulatory gap.
3. The legislature inserted Sections 6a and 6b into the Asylum Seekers' Benefits Act (AsylbLG) after the Federal Social Court, in its judgment of October 30, 2013 – B 7 AY 2/12 R, ruled out the corresponding application of the right to emergency assistance under Section 25 of Book XII of the German Social Code (SGB XII) within the scope of application of the AsylbLG. The legislature had the opportunity to also introduce a provision corresponding to Section 19 Paragraph 6 of Book XII of the German Social Code (SGB XII) into the AsylbLG; however, it did not do so.
There is no indication that this was an editorial error.
4. The explanatory memorandum to the law on restoring the old legal situation (BT-Drs. 18/2592 in H. 25) refers solely to the analogous application of § 25 SGB XII within the framework of the AsylbLG, which was practiced before the decision of the Federal Social Court; it does not reveal any further objective.
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