1. Decisions of the Federal Constitutional Court
1.1 – Federal Constitutional Court, decision of 24 May 2025 – 1 BvR 1902/24 –
Federal Constitutional Court: Seven lawsuits concerning different approval periods do not yet constitute a large number of lawsuits – Groundbreaking decision
Federal Constitutional Court on the decision on costs in an action for failure to act – the constitutional complaint is granted due to a violation of the applicant's rights under Article 3 Paragraph 1 of the Basic Law.
Successful constitutional complaint by a recipient of benefits under the Asylum Seekers' Benefits Act (AsylbLG) against a social court's cost decision – Arbitrary cost decision following an action for failure to act
Detlef Brock:
As of today, the Federal Constitutional Court announces that the decision of the Darmstadt Social Court of June 19, 2024 – S 16 AY 102/22 – violates the complainant's right under Article 3 Paragraph 1 of the Basic Law (Federal Constitutional Court, decision of May 24, 2025 – 1 BvR 1902/24 -).
Successful constitutional complaint against the cost decision of a social court
The Federal Constitutional Court upholds the plaintiff's constitutional complaint, because with seven administrative and/or court proceedings, which also partly concern different performance periods, there can be no talk of "excessive" proceedings.
It is also not apparent that these seven proceedings triggered a particularly high administrative burden. The authority must reimburse the plaintiff for the costs, according to the highest judges.
Arbitrary cost decision following an action for failure to act – Reasons
1. The challenged decision of the Social Court violates Article 3 Paragraph 1 of the Basic Law (GG) in its manifestation as the prohibition of arbitrariness.
According to the established jurisprudence of the Federal Constitutional Court, a judicial decision violates the general principle of equality in its manifestation as the prohibition of objective arbitrariness (Article 3 Paragraph 1 GG) in particular if the content of a legal norm is applied in a manner that is no longer comprehensible. The decisive factor is whether the decision is ultimately untenable (see Federal Constitutional Court, Decision of the Second Chamber of the First Senate of June 20, 2023 – 1 BvR 524/22 –; Decision of the Second Chamber of the First Senate of May 16, 2024 – 1 BvR 1021/24 –).
2. The other prerequisites for a favorable chamber decision under Section 93c Paragraph 1 Sentence 1 of the Federal Constitutional Court Act are also met. The Federal Constitutional Court has already decided the relevant constitutional questions.
3. It can remain open whether the decision also violates Article 19 Paragraph 4, Article 101 Paragraph 1 Sentence 2, and Article 2 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law.
The Federal Constitutional Court does not share the authority's view on the suspension of the proceedings.
4. The authority's view that the appellant could have suspended the review proceedings until the conclusion of the Federal Constitutional Court proceedings 1 BvL 3/21 is also untenable, because the prevailing view in social law jurisprudence and literature generally assumes that a beneficiary is not required to consent to the suspension of proceedings in consideration of pending constitutional court proceedings or pending model proceedings (see, for example, the judgment of the Higher Social Court of Baden-Württemberg of November 18, 2010 – L 7 SO 2708/10 –).
5. The Social Court also found that the claim that the war in Ukraine had resulted in a short-term and unforeseeable surge in workload did not constitute a sufficient reason. The county's assertion to this effect is unsubstantiated and, moreover, far-fetched as a sufficient reason.
Comment by Detlef Brock:
A landmark decision by the Federal Constitutional Court, which I follow, because anything else would only apply if the simultaneous handling of several proceedings only constitutes a sufficient reason if the benefit recipient overwhelms the administration with a multitude of proceedings – usually with the additional restriction that these include proceedings of minor importance or frivolous applications (for example, regarding ALG II: SG Neuruppin, judgment of January 5, 2015 – S 26 AS 1623/13 -).
This latest ruling by the Federal Constitutional Court on arbitrary cost decisions following actions for failure to act naturally also applies to actions for failure to act concerning citizen's income/social assistance!
Source: www.bundesverfassungsgericht.de
2. Decisions of the Federal Social Court on social assistance (SGB XII)
2.1 – BSG, judgment of 05/28/2025 – B 8 SO 3/24 R
Social assistance – Caregiver – Assumption – Pension insurance contributions
BSG: Report on the hearing was – not – published
3. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II) / Citizen's Allowance
3.1 – LSG Hessen, decision of 15.05.2025 – L 6 AS 188/25 B ER –
The reversal of a preliminary decision by the job center with retrospective effect is excluded (Tacheles eV).
Detlef Brock on this point:
1. Citizen's income: The job center acted unlawfully, because it is not allowed to reverse a preliminary decision with retrospective effect, or rather, this is excluded by law.
2. Because the correction of the services rendered on that basis is reserved for the final determination and any related claim for reimbursement.
Guiding Principles www.sozialgerichtsbarkeit.de
Based on the provisions in Section 41a Paragraph 2 Sentences 4 and 5 of the German Social Code, Book II (SGB II) and Section 44a Paragraph 3 of the German Social Code, Book XII (SGB XII), and in particular the legislative materials available on this subject, the revocation of a preliminary decision pursuant to Section 41a SGB II or Section 44a SGB XII is only possible with effect for the future; a revocation with effect for the past is excluded; the correction of benefits provided on the basis of a preliminary decision remains reserved to the final determination and any subsequent claim for reimbursement.
Note by Detlef Brock:
It should be noted that the entire issue is highly controversial in the literature on citizen's income. For example, there is also the opinion that Section 41a of the German Social Code, Book II (SGB II) does not fundamentally preclude adjustments to the detriment of the benefit recipient with retroactive effect (reference to: Grote-Seifert, in: Schlegel/Voelzke (eds.), jurisPK-SGB II, 5th ed., Section 41a – as of August 21, 2024 – para. 43).
Expert tip from Detlef Brock:
The following legal question is pending before the Federal Social Court (BSG): B 4 AS 22/24 R
Lower court: Baden-Württemberg State Social Court, L 12 AS 2018/23, 17.07.2024
(Principle: In the case of a provisional benefit award pursuant to Section 41a of the German Social Code, Book II (SGB II), the legality of an amended benefit award is assessed exclusively according to the provisions of Section 41a, paragraphs 3 and 5, of the SGB II, which are decisive for the final decision following a previous provisional award; there is no scope for applying Sections 45 and 48 of the German Social Code, Book X (SGB X) – at least to the detriment of the benefit recipient – after the expiry of the award period and thus with retroactive effect.)
Regarding the relationship between (possibly application-dependent) final decisions following the provisional granting of benefits pursuant to Section 41a SGB II and the withdrawal of decisions pursuant to Sections 45 and 48 SGB X.
3.2 – LSG BW, Judgment of 07.04.2025 – L 2 AS 2581/22 – Appeal allowed
Guiding principles www.sozialgerichtsbarkeit.de
On the question of whether and under what conditions a claim for reimbursement exists between municipal authorities pursuant to Section 36a of the German Social Code, Book II (SGB II) for benefits for needs of education and participation (BuT), for which indirect refinancing takes place in the relationship between the federal government and the states through an increase in the state-specific participation quota of the federal government in the costs of accommodation and heating pursuant to Section 46 of the German Social Code, Book II (SGB II).
4. Decisions of the social courts on citizen's income (SGB II)
4.1 – none
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG BW, Decision of 10.04.2025 – L 2 SO 3409/24 ER-B –
Social assistance: Severely disabled persons have no right to demand the creation of a place in a facility – Furthermore, in the absence of a specific place in such a facility, no claim to the granting of such a benefit has currently been credibly demonstrated.
Guiding principles www.sozialgerichtsbarkeit.de
The mandate to ensure provision of services under Section 95 of the German Social Code, Book IX (SGB IX), does indeed entail an objective legal obligation on the part of the benefit provider. However, it does not trigger a subjective, legally enforceable claim by the individual.
5.2 – LSG NSB, Judgment of 27.08.2024 – L 15/8 SO 142/23 – Legal aid denied; BSG, Decision of 18.02.2025 – B 8 SO 56/24 BH
No reimbursement of costs for an internet connection in social assistance for those not in need of assistance and receiving housing benefit (Tacheles e. V.).
Social assistance: Even a lawyer is not entitled to reimbursement of the costs for an internet connection and necessary equipment (notebook/laptop, WLAN router, scanner/printer/fax) under the German Social Code Book XII (SGB XII) if they are not in need of assistance.
Detlef Brock stated:
1. The costs of a flat rate for landline internet connections are not separately eligible for reimbursement, as the consumption costs for communication services are included in the standard allowance. Furthermore, the plaintiff is not in need of assistance (§ 41 SGB XII). These are also not benefits for initial apartment furnishings (§ 31 SGB XII).
2. According to Section 7 Paragraph 1 No. 5 of the Housing Benefit Act (WoGG), recipients of basic income support for the elderly and those with reduced earning capacity under the German Social Code, Book XII (SGB XII) are excluded from receiving housing benefit.
3. The provision of an internet connection may be taken into account in the moving costs, because in connection with moves as a special need situation, it is recognized in social court case law that the costs for changing a telephone and internet connection (and a forwarding order) can be unavoidable costs to be covered separately, because these are considered necessary to maintain communication with other people, authorities, banks, etc. after a move (see BSG, judgment of August 10, 2016 – B 14 AS 58/15 R -).
Source: www.socialgerichtsabilities.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – LSG BW, Decision of 30.05.2025 – L 7 AY 879/25 ER-B –
The grandfathering provision in Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is – not – directly applicable to the calculation of the euro amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (Tacheles e. V.)
Asylum Seekers' Benefits Act (AsylbLG): The Asylum Seekers' Benefits Act does not contain a vested rights clause corresponding to the regulation in Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), in the event that otherwise – as in the present case – the continuation of the standard needs would lead to a reduction in the standard needs amount.
Detlef Brock states:
1. In particular, Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is not applicable via Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), as is already evident from the wording.
2. Contrary to the opinion expressed in the decision of the Marburg Social Court of 14 February 2025 (S 16 AY 11/24 ER), on which the applicant relies, nothing to the contrary results from the draft bill of the Federal Government of 22 September 2014 (BT-Drs. 18/2592, p. 25), which formed the basis for the introduction of Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act in the version of 23 December 2014 (old version).
3. The draft law states, among other things, "The amounts stipulated in the law for 2014 regarding cash requirements and the amounts of money pursuant to paragraph 2 are derived by updating the amounts determined in the 2008 EVS (Income and Expenditure Survey). The updates made to the standard needs allowances under Book XII of the German Social Code (SGB XII) were precisely replicated. This applies to both the rates of change and the individual calculation rules."
Practical tip
also LSG BW, decisions of 09.05.2025 – L 7 AY 883/25 ER-B – and – L 7 AY 905/25 ER-B –
Detlef Brock states the following regarding
the Asylum Seekers' Benefits Act (AsylbLG): The regulation of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is – not – directly applicable to the calculation of the monetary amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Practical tip:
see also LSG BW, decision of 29.04.2025 – L 7 AY 918/25 ER-B –
Detlef Brock states:
1. The Asylum Seekers' Benefits Act (AsylbLG) does not contain a vested rights clause corresponding to the regulation in Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII); in particular, Section 28a Paragraph 5 of the SGB XII is not applicable via Section 3a Paragraph 4 of the AsylbLG.
A different view is held by the most recent case law
of the Social Court of Marburg, decision of May 23, 2025 – S 16 AY 8/25 ER – ; Social Court of Speyer – decision of May 27, 2025 – file no.: S 16 AY 39/25 ER and Social Court of Stuttgart, Stuttgart – decision of May 27, 2025 – file no.: S 9 AY 300/25 ER
Detlef Brock states:
1. The provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is directly applicable to the calculation of the monetary amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (follow-up decision to the Social Court of Marburg, decision of February 14, 2025, S 16 AY 11/24 ER).
6.2 – Gießen Social Court – Decision of April 14, 2025 – Case No.: S 30 AY 32/25 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
Exclusion from benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG)
Detlef Brock states:
1. The suspensive effect of the applicant's objection to the authority's decision is ordered, because the revocation of the previous benefit award is unlawful, as it allegedly violates European law and constitutional law.
2. In 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
6.3 – Social Court Darmstadt – Decision of 11 April 2025 – File No.: S 16 AY 21/25 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
Regarding the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act – balancing of consequences
Source: Attorney Sven Adam
6.4 – Social Court Marburg, Decision of 23 May 2025 – S 16 AY 8/25 ER – www.sozialgerichtsbarkeit.de
Detlef Brock states:
1. The provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is directly applicable to the calculation of the monetary amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (follow-up decision to the Social Court of Marburg, decision of February 14, 2025, S 16 AY 11/24 ER).
Note:
4 recent decisions of the 7th Senate of the Baden-Württemberg State Social Court (LSG) hold a different view.
LSG BW, Decision of 29 April 2025 – L 7 AY 918/25 ER-B – ; LSG BW, Decisions of 9 May 2025 – L 7 AY 883/25 ER-B – and – L 7 AY 905/25 ER-B – and LSG BW, Decision of 30 May 2025 – L 7 AY 879/25 ER-B –
7. Miscellaneous information on citizen's income, social assistance, housing allowance, child supplement and other important legal codes
7.1 – No urgency in cases of delayed pension payments? An article by attorney Helge Hildebrandt
Continue reading at https://sozialberatung-kiel.de
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