1. Decisions of the Federal Social Court on social assistance under Book XII of the German Social Code (SGB XII)
1.1 – BSG, judgment of December 18, 2024 – B 8 SO 1/24 R – www.socialgerichtsbaren.de
Social assistance – subsistence support – discretionary power in revocation and reimbursement decisions – disbursement of benefits due to a gross administrative error – consideration within the framework of discretionary assessment
BSG: The court recommends applying an annual maximum period for review also to benefits under Chapter 3 of the German Social Code, Book XII (SGB XII)
Guiding principle Detlef Brock:
Official negligence must regularly be taken into account as a relevant factor in the discretionary decision on the revocation of a favorable administrative act pursuant to Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X), even if it is not a gross error.
An abuse of discretion due to a deficit in weighing the relevant factors exists if the authority has not included all discretionary considerations that must be taken into account according to the circumstances of the case in its decision-making (BSG of 23.2.2023 – B 8 SO 9/21 R -).
The authority should have included its own official error as a significant factor in its discretionary decision.
The Senate classifies what may be merely a "normal" oversight in case processing, combined with years of inadequate internal control mechanisms for error prevention and detection, as a serious error.
While Section 44 Paragraph 3 of the German Social Code, Book XII (SGB XII) stipulates a one-year approval and review period, this requirement applies only to benefits under Chapter 4 of the SGB XII. However
, the legislative consideration underlying Section 44 Paragraph 3 SGB XII—namely, that changes in the circumstances of benefit recipients are rarely to be expected when benefit needs are long-term (see Bundestag Printed Matter 14/4595, p. 71)—strongly suggests the application of an annual maximum review period even for benefits under the relevant Chapter 3, which addresses only temporary emergencies with changing personal and economic circumstances (see Kirchhoff in Hauck/Noftz SGB XII, as of May 2024, Section 44, marginal note 29).
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 Rhineland-Palatinate, decision of 29.01.2024 – L 3 AS 207/23 B ER –
Basic income support for job seekers – exclusion of benefits for foreigners without a right of residence or residing for the purpose of seeking employment – independent freedom of movement rights pursuant to Article 10 of Regulation (EU) No 492/2011 for a minor child attending school and their mother – family reunification of an adult child – right of residence as a family member in accordance with Section 3 Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU 2004 – exclusion of benefits for the first three months of residence
Citizen's allowance: Entitlement of a Polish mother with her 3 children to citizen's allowance
Principle www.sozialgerichtsbarkeit.de
1. To establish the independent freedom of movement rights under Article 10 EU Regulation 492/2011, which preclude the application of the benefit exclusions pursuant to Section 7 Paragraph 1 Sentence 2 Numbers 1 and 2 of the German Social Code, Book II (SGB II), it is sufficient if the employee status of the parent and the education of the child coincide during the stay; it is not necessary that a parent had employee status at the time of the minor child's enrollment in school or at the time of the child taking up residence.
2. The family members of parents entitled to freedom of movement under Article 10 EUV 492/2011 may derive a right of residence from them under Section 2 Paragraph 1 of the Freedom of Movement Act/EU (juris: Freedom of Movement Act/EU 2004) or by analogy to Section 3 Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU, which excludes the application of the benefit exclusions under Section 7 Paragraph 1 Sentence 2 Numbers 1 and 2 of the German Social Code, Book II (SGB II).
3. The exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) applies only to situations in which the right of residence is based on Directive 2004/38/EC (juris: ECRL 38/2004) and therefore only covers persons who exercise their unconditional three-month right of residence pursuant to Article 6 Paragraph 1 of Directive 2004/38/EC.
2.2 LSG Saxony, decision of 12.05.2025 – L 7 AS 163/25 B ER –
Citizen's allowance: A Romanian applicant is not entitled to citizen's allowance if he cannot credibly demonstrate an "uninterrupted" habitual residence of five years from his first official registration in Germany, and the registration certificate shows a deregistration to Romania (cf., for example, short visits to his homeland, which are harmless; otherwise, the period starts to run anew, as expressly stated in: Federal Social Court, judgment of 11 September 2024 – B 4 AS 12/23 R; Federal Social Court, judgment of 20 September 2023 – B 4 AS 8/22 R -).
Guiding principles www.sozialgerichtsbarkeit.de
EU foreigners who are excluded from benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) due to a right of residence solely for the purpose of job seeking, may – after the involvement of the social welfare agency – only be entitled to bridging benefits, hardship benefits or benefits for the return journey under the German Social Code, Book XII (SGB XII).
Note:
Benefits to secure subsistence under the German Social Code, Book II (SGB II) for EU citizens – Social assistance benefits under the German Social Code, Book XII (SGB XII) for EU citizens – Exclusion from benefits due to residence permit solely for the purpose of job seeking – Bridging benefits – Hardship benefits – Benefits for return travel
3. Decisions of the social courts on citizen's income (SGB II)
3.1 – SG Dessau – Rosslau, Judgment of 14.03.2025 – S 4 AS 65/22 –
Citizen's allowance: As a general rule, those receiving benefits cannot claim reimbursement from the job center for the cost of an electricity submeter. Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is not subject to analogy. There is no unintended regulatory gap in this regard. (Tacheles eV).
Principle www.sozialgerichtsbarkeit.de
1. Benefit recipients have no claim against the SGB II benefit provider for the assumption of the installation costs for a separate measuring device to prove higher costs of decentralized hot water preparation.
2. The provision regarding additional needs for decentralized hot water preparation according to Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), requires the existence of a separate measuring device to prove a need exceeding the flat-rate allowance. Furthermore, the provision contains no eligibility requirements for the reimbursement of installation costs. Nor does a claim exist by analogy. There is no unintended gap in the regulations in this regard.
3. A hardship case within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), for a one-off need requires the unavoidability of the need and proof of the unreasonableness of the repayment obligation of a loan (see Federal Social Court [BSG], judgment of December 17, 2024 – B 7 AS 73/23 R; judgment of January 26, 2022 – B 4 AS 3/21 R). Section 21 Paragraph 6 of the SGB II is not subject to analogy.
4. An assurance under Section 34 of the German Social Code, Book X (SGB X) regarding the assumption of future costs cannot be enforced in legal proceedings, even when the principle of multiple benefits is observed, if there is no legal basis for the administrative act to be assured.
Guiding principle
for citizen's income – no entitlement to reimbursement of installation costs for a separate metering device – submeter – no analogy – no hardship case – no entitlement to a guarantee – legally binding – most-favored-nation principle
3.2 – Social Court Karlsruhe, Decision of 12 May 2025 – S 12 AS 2069/22 – www.sozialgerichtsbarkeit.de
Citizen's income: The increases have not compensated for the loss of purchasing power in previous years
Citizen's income – increases do not compensate for losses in purchasing power in previous years, at least according to Dr. Irene Becker. The Karlsruhe Social Court agrees with this view!
For the purpose of gathering evidence at the Federal Ministry of Labour and Social Affairs on the question of whether the adjustments to standard benefit rates and special benefits compensated for the loss of purchasing power in 2021 and 2022
In a remarkable decision, the 12th Chamber of the Social Court of Karlsruhe announces (SG Karlsruhe, decision of 12.05.2025 – S 12 AS 2069/22-) that the court orders the taking of evidence by hearing the following expert witness:
Head of Division II c 1
c/o Division for Fundamental Issues of Basic Income Support for Job Seekers
c/o Federal Ministry of Labour and Social Affairs
Wilhelmstraße 49, 10117 Berlin
Evidentiary issues:
In the legal dispute, the constitutionality of the level of standard subsistence benefits in the case of basic income support benefits according to standard benefit level 1 under the Second Book of the Social Code (SGB II) is contested.
The social court called upon must, within the framework of its obligation to refer the matter to the court (pursuant to Article 100 Paragraph 1 of the Basic Law and its duty to investigate ex officio pursuant to Section 103 of the Social Courts Act (SGG)), clarify whether and, if so, to what extent a loss of purchasing power that occurred in the years 2021 to 2023 has been compensated by timely adjustments to standard needs and special benefits.
For this purpose, the examination of the head of department II c 1 of the Federal Ministry of Labour and Social Affairs, which is responsible for fundamental issues of basic income support for job seekers, as an expert witness on the following evidentiary questions is required:
Note:
The court refers in this respect to calculations by I. Becker in: Citizen's Income: Increases do not compensate for losses in purchasing power in previous years. Short expert report commissioned by the Paritätische Gesamtverband, 2024, p. 8 (cited in: A. Lenze, in: The never-ending story – The adjustment of standard benefit rates as a political hot-button issue, info also 2025, 51, beck-online).
Note by Detlef Brock:
The Federal Constitutional Court, 1st Senate, 2nd Chamber, Chamber Decision of July 19, 2024, Case No.: 1 BvL 2/23, had decided as follows:
The referral to the Federal Constitutional Court regarding the constitutionality of the one-off payments made in May 2021 and July 2022 to recipients of basic income support under the German Social Code, Book II (SGB II), to compensate for pandemic-related additional expenses, was inadmissible. Therefore, the Karlsruhe Social Court must reconsider the matter, as the Federal Constitutional Court has already ruled on it
At the end of June, the Karlsruhe Social Court will decide again whether the increases in citizen's income have compensated for the losses in purchasing power in previous years and whether the standard rate in 2021/2022 was constitutional.
The judges of the Karlsruhe Social Court disagreed, referring in this respect to calculations by I. Becker in: Bürgergeld: Maßnahmen zuausgleichen Ausgleichsverluste in früher Jahren nicht aus. Kurzexpertise im Auftrag des Paritätischen Gesamtverbands, 2024, p. 8 (cited in: A. Lenze, in: Die unendliche Geschichte – Dieanpassung der Regelbedarfe als politisches Aufstößerthema, info also 2025, 51, beck-online).
We can be curious to see how the Social Court of Karlsruhe will decide and whether the constitutionality will be reviewed by the Federal Constitutional Court.
Full text: www.sozialgerichtsbarkeit.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG BW, judgment of 03/21/2025 – L 8 AL 803/24 –
Guidance note by Detlef Brock:
If a plaintiff has waited more than 20 years to assert the transferred claim, this does not necessarily lead to a forfeiture of the claim despite this very long period (BSG, judgment of 05.09.2019 – B 8 SO 20/18 R -).
Guiding principles www.sozialgerichtsbarkeit.de
1. On the forfeiture of a claim to (higher) insolvency pay for the year 2001 in the year 2023.
2. A current review application pursuant to Section 44 of the German Social Code, Book X (SGB X) cannot lead to the granting of benefits for claims that lie outside the limitation period due to the limitation period in paragraph 4 of this provision.
3. If, after the expiry of the retention period for the administrative files, it is no longer possible to verify, due to the destruction of the files, whether an objection or review application filed in due time pursuant to Section 44 of the German Social Code, Book X (SGB X) exists or, if applicable, whether a decision has been made, the decisive factor cannot be solely whether a plaintiff is still able to submit individual documents favorable to him. In such cases, it is also essential to examine whether the asserted claim has been forfeited (affirmed here).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – G Munich, Judgment of 30.04.2025 – S 46 SO 72/24 –
Social assistance: Monthly gym membership costs are not considered a social participation benefit – they must be paid from the standard benefit rate
Guiding Principles www.sozialgerichtsbarkeit.de
1. The target agreement pursuant to Section 29 Paragraph 4 of the German Social Code, Book IX (SGB IX) is a substantive requirement for the approval of a personal budget for participation services. The target agreement is also a public-law contract. The competent authority is bound by law even when concluding a public-law contract. In the event of an action against the decision regarding the personal budget, the court may incidentally review a concluded target agreement, in particular whether the requirements of the SGB IX and Sections 53 et seq. of the German Social Code, Book X (SGB X) have been met. If a personal budget was rejected due to the lack of a target agreement, a declaratory judgment action may be considered, in which the failure to conclude a target agreement is also examined.
2. The costs of visiting a fitness studio are generally not to be covered as benefits under integration assistance for social participation.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Social Court Darmstadt, Decision of 04.02.2025 – S 16 AY 2/25 ER – www.sozialgerichtsbarkeit.de
Order for the suspensive effect of an objection against the revocation of benefits under the Asylum Seekers' Benefits Act (AsylbLG) in preliminary legal protection (Affirmed here)
Guiding principle Detlef Brock
1. In the context of the balancing of interests, the referral decision of the Federal Social Court of 25 July 2024 (B 8 AY 6/23) to the ECJ must be taken into account in particular.
The legal questions raised regarding the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) also have direct implications for the relevant norm here and are therefore significant with regard to the protection of fundamental rights.
3. The answers to these questions are also likely to have a direct impact on the restriction of benefits under Section 1 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), which is relevant here.
6.2 – Social Court Darmstadt – Decision of 10 April 2025 – Case No.: S 16 AY 22/25 ER
Legal basis: Section 1 Paragraph 4 Asylum Seekers' Benefits Act (AsylbLG) – Keywords: Exclusion from benefits according to Section 1 Paragraph 4 AsylbLG, European law, Gießen Regional Council, Darmstadt Social Court
Detlef Brock stated:
The suspensive effect of the applicant's objection to the authority's decision was ordered because, considering the authority's interest in enforcement, the applicant's interest in enforcement must take a back seat. This is because, in view of the pending main proceedings, the applicant's right to basic humane care until actual deportation to France must be given priority.
Source: Attorney Sven Adam
6.3 – Stuttgart Social Court – Decision of April 8, 2025 – Case No.: S 9 AY 1216/25 ER
Legal provisions: Section 3 Asylum Seekers' Benefits Act (AsylbLG), Section 3a AsylbLG, Section 3 Paragraph 4 AsylbLG, Section 28a Paragraph 5 Social Code Book XII (SGB XII), Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Standard benefit level 1, Standard benefit level 2, Benefits according to Section 3 AsylbLG, Benefits according to Section 3a AsylbLG, Reduction round, Update, Basic benefits, City of Stuttgart, Stuttgart Social Court
The non-application of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) in the Asylum Seekers' Benefits Act (AsylbLG) is unlawful and therefore benefits must be granted as in 2024 (Tacheles e. V.).
Detlef Brock adds:
1. Granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
2. 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, because the protection of existing rights 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 – contra, without further explanation, Social Court Heilbronn, decision of 17 February 2025 – S 15 AY 181/25).
Source: Attorney Sven Adam
6.4 – Gießen Social Court – Decision of April 9, 2025 – Case No.: S 30 AY 27/25 ER
Legal basis: Section 1 Paragraph 4 Asylum Seekers' Benefits Act (AsylbLG) – Keywords: Exclusion from benefits according to Section 1 Paragraph 4 AsylbLG, European law, Gießen Regional Council, Gießen Social Court
Section 1, paragraph 4, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is likely to be both contrary to European law and unconstitutional and should therefore remain unapplied (Tacheles e. V.)
Detlef Brock adds:
The suspensive effect of the applicant's objection to the authority's decision is ordered.
According to the legal opinion of the adjudicating court, Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is probably both contrary to European law and unconstitutional and should therefore remain unapplied.
Source: Attorney Sven Adam
6.5 – Social Court Speyer – Decision of April 9, 2025 – Case No.: S 15 AY 11/25 ER
Legal norms: Section 1 Paragraph 4 AsylbLG – Keywords: Exclusion from benefits according to Section 1 Paragraph 4 AsylbLG, European law, Supervisory and Service Directorate Rhineland-Palatinate, Social Court Speyer
The exclusion of entitlement under Section 1 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) violates the fundamental right to a guaranteed minimum standard of living in accordance with human dignity under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (Tacheles e. V.).
Detlef Brock:
1. Provisional granting of unrestricted benefits according to § 3 AsylbLG.
2. However, the applicant's objection has a high probability of success because, according to the legal opinion of, among others, the adjudicating chamber, the exclusion of entitlement under Section 1 Paragraph 4 No. 2 AsylbLG violates the fundamental right to a guaranteed minimum standard of living in accordance with human dignity under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law (see, in particular, the Federal Constitutional Court's judgments of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – and of July 18, 2012 (1 BvL 10/10, 1 BvL 2/11).
3. The unconstitutionality of the regulation would mean that in a main proceeding the court would have to obtain a decision from the Federal Constitutional Court (BVerfG) pursuant to Article 100 Paragraph 1 of the Basic Law.
Source: Attorney Sven Adam
7. Miscellaneous information on citizen's income, social assistance, housing allowance, child supplement and other important legal codes
7.1 – Federal Administrative Court, Judgment of 22 May 2025 – 3 C 1.24 –
Unemployed in Corona quarantine: Employment agency will not be reimbursed for its unemployment benefit (ALG 1) payments
Detlef Brock states:
1. The Federal Employment Agency has no right to repayment of unemployment benefits that it had paid to an unemployed benefit recipient who was in Corona quarantine.
No loss of earnings – no claim for reimbursement
2. While the right to compensation for a quarantine order under the Infection Protection Act can, in principle, be transferred to the Federal Employment Agency pursuant to Section 56 Paragraph 9 of the Infection Protection Act (IfSG), the Federal Administrative Court (BVerwG) has ruled that this requires the person in question to actually have a claim.
3. This is not the case if the person concerned has not suffered any loss of earnings due to the quarantine.
Source: www.bverwg.de
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