1. Decisions of the Federal Social Court on social assistance (SGB XII) and on basic income support under the SGB II
1.1 – BSG, Judgment of 27.02.2025 – B 8 SO 10/23 R –
Social assistance – integration assistance – residential care facility – visiting allowances
1.1 Federal Social Court ruling on people with disabilities: Social welfare provider must pay for home visits
Entitlement of a person receiving benefits who is in inpatient care to visitation allowances
Detlef Brock adds:
1. The right of disabled people to social participation also includes participation in family life.
2. If an adult with a disability lives in a residential home, he or she may be entitled to reimbursement of the costs for necessary regular trips home to his or her parents.
3. The necessity of visitation allowances and their frequency are determined based on the specific integration assistance needs, in particular the medical requirements and the local conditions.
4. The required visitation allowance is, under both the old and the new law applicable from 2020, an independent benefit of integration assistance, for which the district must provide.
5. The number of trips home depends on the individual case.
Full text now available at www.sozialgerichtsbarkeit.de
1.2 – BSG, Judgment of 16.07.2025 – B 7 AS 19/24 R –
Basic income support for job seekers – provisional approval – predictable income from self-employment – cancellation – income from dependent employment
BSG:
Preliminary decisions granting benefits under Section 41a of the German Social Code, Book II (SGB II) cannot be revoked by the job center with retroactive effect to the detriment of the plaintiff/benefit recipient.
Detlef Brock states:
1. In the case of a provisional benefit award pursuant to Section 41a SGB II, the legality of an amended benefit award is assessed exclusively according to the provisions of Section 41a paragraphs 3 and 5 SGB II that are relevant for the final decision following a previous provisional award.
2. 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 beneficiary – after the expiry of the benefit period and thus with retrospective effect (cf. LSG BW, Case No.: L 12 AS 2018/23 – Appeal pending BSG – B 4 AS 22/24 R -).
Guidance by Detlef Brock
1. As a more specific regulation for the compensation of wrongly received unemployment benefit II, the final determination of the benefit entitlement in accordance with Section 41a Paragraph 3 SGB II takes precedence both in cases of initial illegality and in cases of adverse changes in the factual or legal circumstances.
2. The wording of Section 41a of the German Social Code, Book II (SGB II) is open with regard to the retroactive repeal to the detriment of the benefit recipient, but Section 41a SGB II was created to resolve the conflict between the need for the quickest possible decision on subsistence-securing social benefits on the one hand and the necessity of a complete investigation of the facts on the other, in favor of only a provisional benefit award as an “interim arrangement”.
3. Section 41a paragraph 3 of the German Social Code, Book II (SGB II) therefore provides in principle for their replacement by a final decision after the end of the benefit period, without the preliminary decision having any binding effect on the final decision or the benefit recipient being able to rely on its content.
4. In the present case, there is no conclusive determination which, according to the established case law of the competent senates of the Federal Social Court, would be subject to correction under Sections 44 et seq. of the German Social Code, Book X, even if it were deemed a fiction under Section 41a Paragraph 5 Sentence 1 of the German Social Code, Book II.
5. A different assessment of the regulatory concept presented above is also not justified by Section 67 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II).
Source: www.bsg.bund.de
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 Hamburg, judgment of 11/14/2024 – L 4 AS 198/24 WA P –
Obligation of the basic income support provider to reimburse the costs of accommodation for women seeking refuge in a women's shelter due to a dangerous situation
Citizen's allowance: In principle, all costs incurred inside or outside the women's shelter are reimbursable if the municipal authority has paid them in accordance with the law, i.e., by lawfully applying the provisions of the German Social Code, Book II (LSG Lower Saxony-Bremen, judgment of 22 May 2024 – L 13 AS 312/21 -).
Detlef Brock explains:
1. For housing costs, a reimbursement agreement pursuant to Section 17 Paragraph 2 of the German Social Code, Book II (SGB II) is required. According to the explanatory memorandum to the law (Bundestag printed matter 16/1410, p. 27), the obligation to reimburse costs relates to the benefits pursuant to Section 6 Paragraph 1 Sentence 1 No. 2 SGB II. These include, in addition to the municipal integration benefits pursuant to Section 16a SGB II and the special benefits pursuant to Section 24 Paragraph 3 Sentence 1 Nos. 1 and 2 SGB II (initial furnishings for the apartment, clothing, etc.), Section 27 Paragraph 3 SGB II (subsidy for housing costs for trainees), and Section 28 SGB II (education and participation), primarily benefits for accommodation and heating pursuant to Section 22 SGB II.
2. It follows that the accommodation costs must also have been granted on the basis of a valid remuneration agreement pursuant to Section 17 Paragraph 2 of the German Social Code, Book II (SGB II).
Guiding principle LSG Hamburg Juris
1. If a person seeks refuge in a women's shelter, the municipal authority at the previous habitual residence is obliged, according to § 36a SGB II, to reimburse the municipal authority responsible for the admission to the women's shelter at the location of the women's shelter for the costs for the period of the stay in the women's shelter.
2. The trigger for the actions of the person in question must be a dangerous situation.
3. The accommodation costs must have been granted on the basis of a valid remuneration agreement pursuant to Section 17 Paragraph 2.
4. The receiving municipality shall be exempt from all costs for which the municipality of origin would have been responsible if the habitual residence there had not been terminated by the flight to the women's shelter.
2.2 – LSG NRW, Decision of 08.07.2025 – L 21 AS 537/25 B ER – www.sozialgerichtsbarkeit.de
Entitlement to citizen's allowance also exists in cases of low water consumption by the person in need of assistance, based on the job center's suspicion that the recipient is not using the rented apartment, if the recipient can credibly demonstrate economical water usage
Detlef Brock stated:
1. Provisional granting of citizen's allowance in expedited proceedings, because the applicant was able to credibly demonstrate his need for assistance by means of a sworn affidavit and submission of his bank statements.
2. The local jurisdiction of a job center according to § 36 para. 1 SGB II is not a material requirement for entitlement (cf. BSG, judgment of 23.5.2012 – B 14 AS 133/11 R -).
3. The job center suspects that the applicant is not staying at his residence, but rather in another area of responsibility of the job center. The applicant, however, has refuted this and substantiated his statements before the court, for example, by submitting his bank statements and a sworn affidavit. He credibly demonstrated that he lends his debit card to the witness so that she can use it even during his absence to buy groceries for her upcoming visit to X. Since, according to the applicant's coherent explanations, she is also permitted to borrow his car, this explains the fuel withdrawals in the W. area.
4. The court finds the – continuous use of the apartment – with a water consumption of 4 square meters highly doubtful – credible evidence provided by sworn affidavit and the applicant declares economical water use despite his girlfriend showering in the apartment.
5. To establish credibility, among other things, a statutory declaration pursuant to Section 202 of the Social Court Act (SGG) in conjunction with Section 294 of the Code of Civil Procedure (ZPO) may be considered. The court must determine the probative value within the framework of its free evaluation of evidence pursuant to Section 128 of the Social Court Act (SGG).
Practical tip regarding citizen's allowance:
Recipients of benefits are not obliged to reside or stay overnight permanently in their apartment, as decided by the LSG BB, decision of 17.06.2024 – L 20 AS 364/24 B ER -).
2.3 – LSG Saxony-Anhalt, Judgment of 24.04.2025 – L 5 AS 588/21 –
Citizen's allowance: The job center's demand for repayment of approximately €4300 is lawful, because the plaintiff must be held accountable for his partner's grossly negligent lack of knowledge within the framework of the rules of representation (§ 13 para. 1 SGB X), because the plaintiff knew and approved that the witness was acting on his behalf vis-à-vis the job center and managing the benefits for the household.
Detlef Brock states:
1. Anyone who tolerates a third party applying for benefits under the German Social Code, Book II (SGB II) on their behalf must be held accountable for that third party's conduct according to the principles of apparent authority or acquiescence (see Federal Social Court (BSG), judgment of December 8, 2020 – B 4 AS 46/20 R).
Principle www.sozialgerichtsbarkeit.de
1. On the attribution of a representative's fault within a community of need (here: non-marital cohabitation)
2. A corresponding hearing can be held until the end of the oral proceedings before the last court of fact.
3. Decisions of the social courts on the German Social Code, Book II (SGB II) / Citizen's Allowance
3.1 – SG Karlsruhe, decision of 12.07.2025 – S 12 AS 1569/25 ER –
In one specific case, people seeking citizen's income successfully obtained a preliminary injunction from the social court against the job center and, due to its continued executive disobedience, appealed to the state social court, which then unlawfully failed to refer their enforcement application to the competent local court.
Summary by Detlef Brock
: 1. The executive branch's disobedient job center fails to fulfill its obligation to pay a specified monetary claim arising from a preliminary injunction.
2. Citizens' benefit recipients and judgment creditors seek enforcement of a judgment in the amount of €26,222 based on a temporary order issued by the Social Court of Karlsruhe, which has not been executed by the job center and judgment debtor.
Detlef Brock states:
1. For the enforcement of quantified monetary claims arising from preliminary injunctions issued by the social courts, the local courts are responsible as enforcement courts pursuant to Section 198 Paragraph 1 of the Social Courts Act (SGG) in conjunction with Sections 764 and 828 Paragraph 2 of the Code of Civil Procedure (ZPO).
2. The social courts do not have jurisdiction to enforce preliminary injunctions pursuant to Section 201 of the Social Courts Act (SGG) if the obligation is for the payment of a specific sum of money.
Guiding Principles www.sozialgerichtsbarkeit.de
1. If a job center that is executively disobedient to the law and jurisprudence fails to fulfill its obligation to pay a quantified monetary claim arising from a preliminary injunction issued by a social court, the affected recipient of citizen's allowance must appeal to the local court in whose district the job center's headquarters are located for enforcement purposes.
2. If the court lacks jurisdiction over an application for enforcement of an interim order received by it, the Higher Social Court must issue a formal referral order.
3. A formal judicial referral order within the meaning of Section 17a Paragraph 1 Sentence 3 of the Courts Constitution Act (GVG) cannot be replaced by an informal letter from the clerk of the office of the Senate of a State Social Court.
4. Due to the extraordinary urgency of the enforcement application in this particular case, the parties' procedural right to a decision by the legally appointed judges of the State Social Court regarding the referral of the enforcement application is, in this specific case, exceptionally subordinated to the right of the enforcement creditors to effective and timely legal protection under Article 19 Paragraph 4 of the Basic Law and Article 6 Paragraph 1 of the European Convention on Human Rights.
5. The social courts are not there to merely deal with each other; they were established to guarantee effective and rapid legal protection to the persons who call upon them.
Ruling:
1. Due to the enforcement proceedings against the Baden-Baden Job Center based on the preliminary injunction issued by the Karlsruhe Social Court on June 20, 2025, in the urgent legal protection proceedings S 12 AS 1596/25 ER, recourse to the social courts is inadmissible.
2. The application for judicial enforcement of the interim order of the Social Court of Karlsruhe dated 20 June 2025 in the urgent legal protection proceedings S 12 AS 1596/25 ER is referred to the competent Local Court of Baden-Baden.
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Berlin-Br., Judgment of 08.05.2025 – L 14 AL 72/23 –
Detlef Brock,
a Guinean national, is not entitled to vocational training assistance (BAB) for company-based training, because he does not belong to the eligible group of persons.
Guiding principles www.sozialgerichtsbarkeit.de
1. A lawful residence – as a prerequisite for the granting of vocational training assistance for asylum seekers under previous law – could be expected if a positive prospect for a lawful stay in the Federal Republic could be established.
2. The expectation of receiving a temporary suspension of deportation after the conclusion of the asylum procedure is irrelevant, since the term "prospect of remaining" used for the interpretation is to be understood in a legal sense and not in a literal sense.
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG Saxony-Anhalt, Judgment of 15.04.2025 – L 8 SO 29/21 –
Detlef Brock
1. According to the case law of the Federal Social Court, integration assistance benefits have been a "new" benefit since January 1, 2020 (see BSG, judgment of December 18, 2024 – B 8 SO 14/22 R -).
2. In individual cases, this understanding of the transitional legal challenges has a particularly detrimental effect on disabled people.
Principle www.sozialgerichtsbarkeit.de
1. According to the case law of the Federal Social Court, integration assistance benefits have been considered a "new" benefit since January 1, 2020. Therefore, if the contested decisions contain only provisions relating to the legal situation valid until December 31, 2019, the action is inadmissible (reference to Federal Social Court, judgment of January 28, 2021 – B 8 SO 9/19 R – juris para. 19; judgment of December 18, 2024 – B 8 SO 14/22 R [hearing report]).
2. In individual cases, this understanding of the transitional legal challenges has a particularly detrimental effect on disabled people, as applications for desired benefits of the now “new” integration assistance (here: an electric wheelchair as a benefit for social participation) can only be decided some time later, even though several years have already passed due to unsuccessful legal remedy proceedings.
5.2 – SG Lüneburg, judgment of June 10, 2025 – S 38 SO 96/23 –
Anxiety disorder; adult tricycle; social participation; therapy tricycle
Detlef Brock states:
1. The disabled person should not and must not be forced into the role of a supplicant, cf. also Article 19 UN CRPD.
Principle
1. An entitlement to an adult tricycle exists if this achieves the participation goal of social participation.
2. An adult tricycle not only covers mobility but can also serve independent and self-determined living within the framework of the participation goal of social participation.
Source: https://voris.wolterskluwer-online.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – LSG Saxony-Anhalt, decision of 29.04.2025 – L 8 AY 8/25 B ER
Principle www.sozialgerichtsbarkeit.de
1. If benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) are granted until further notice, this constitutes a continuing administrative act. In order to subsequently impose a restriction of entitlement under Section 1a AsylbLG, this continuing administrative act must be revoked or withdrawn pursuant to Section 9 Paragraph 4 No. 1 AsylbLG in conjunction with Sections 44 et seq. of the German Social Code, Book X (SGB X). Since objections and legal action against the revocation or withdrawal of the continuing administrative act do not have suspensive effect, in preliminary legal protection proceedings concerning a subsequent restriction of benefits under Section 1a AsylbLG, it is insufficient to pursue legal protection solely through an action for annulment. While the restriction of entitlement can be eliminated after the revocation of the contested reduction decision, the applicant nevertheless remains dependent on a benefit award from now on, as the previous continuing benefit award has not (yet) been reinstated.
2. Anyone who has a tolerated stay within the meaning of Section 1 Paragraph 1 No. 4 AsylbLG does not belong to the group of persons covered by the benefit restriction of Section 1a Paragraph 4 Sentence 2 AsylbLG.
3. If a case excluding the protection of legitimate expectations under Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X) does not exist, the withdrawal of the approval decision is a discretionary decision.
6.2 – LSG Hamburg, decision of 17.09.2024 – L 4 AY 11/24 B ER –
Social court proceedings – preliminary legal protection – regulatory order – lack of grounds for an order – asylum seeker benefits – basic benefits – accommodation in a reception center – provision of benefits by payment card – no significant disadvantage – constitutional law
Detlef Brock
1. LSG Hamburg overturns lower court's decision regarding payment cards (S 7 AY 410/24 ER – Setting a limit on cash withdrawals without considering the specific circumstances of the individual case when issuing a payment card (here: based on a recommendation from the Conference of Minister-Presidents of 20 June 2024) is an abuse of discretion.)
Principle of the Hamburg Higher Social Court (LSG Hamburg Juris)
: 1. In light of the legal provision in Section 3 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), the Senate cannot discern that granting the benefit in the form of a payment card would pose such a significant disadvantage as to warrant the issuance of a preliminary injunction. Under constitutional law, it is generally permissible to grant the minimum subsistence level through monetary payments as well as through in-kind benefits or services (cf. Federal Constitutional Court, judgment of July 18, 2012 – 1 BvL 10/10 et al. = BVerfGE 132, 134 = SozR 4-3520 § 3 No. 2).
2. In the specific case of the applicant no. 3, who is almost two years old, no reasons relating to her person have been presented, nor are any otherwise apparent, that would justify the exceptional assumption of grounds for an injunction. Finally, the provision of services via payment card has not yet been in place for so long that any associated difficulties would appear unreasonable.
Practical tip:
SG Munich, decision of 29.8.2024 – S 42 AY 63/24 ER – If all the needs of a benefit recipient are covered by means of a payment card pursuant to Section 2 Paragraph 2 Sentence 2 AsylbLG, there is no ground for issuing a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 SGG.
6.3 – Gießen Social Court – Decision of July 8, 2025 – Case No.: S 30 AY 47/25 ER
Legal norms: Section 1 Paragraph 4 AsylbLG, Section 44 SGB X – Keywords: Exclusion from benefits pursuant to Section 1 Paragraph 4 AsylbLG, review procedure, European law, State of Hesse, 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. Obligation in urgent proceedings to grant the applicant benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from the date of receipt of the application in the preliminary legal protection proceedings.
2. Section 1 paragraph 4 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) violates the European legal provisions on minimum standards of care during the asylum procedure from Articles 17 to 20 of the Reception Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 (Directive 2013/33/EU), because Article 20 paragraph 5 sentence 1 of Directive 2013/33/EU expressly requires that decisions on the restriction or withdrawal of benefits granted in the context of reception (Article 2 letter g of Directive 2013/33/EU) must be made taking into account the principle of proportionality.
Source: Attorney Sven Adam
6.4 – Social Court Speyer – Decision of 09.07.2025 – File No.: S 16 AY 76/25 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, State of Rhineland-Palatinate, Supervisory and Service Directorate, Social Court Speyer
Is the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act unconstitutional?
Detlef Brock comments:
1. It is highly doubtful whether the provisions of the Asylum Seekers' Benefits Act (AsylbLG) relevant to the decision in the present case are compatible with the requirements of the German Basic Law (GG) and EU law. Both are controversial in legal literature and case law.
2. The prospects of success for the applicant's objection and for any subsequent main proceedings must be considered uncertain, even though the Chamber expresses considerable doubts at this point regarding the compatibility of the relevant provision with constitutional and European law. With regard to the question of the unconstitutionality of the aforementioned provision, reference is made, among many others, to the detailed and instructive explanations of the 15th Chamber of the Speyer Social Court in its decision of February 20, 2025, S 15 AY 5/25 ER (see ASR 2025, pp. 76 ff., beck-online).
Source: Attorney Sven Adam
6.5 – Social Court Speyer – Decision of 08.07.2025 – Case No. S 16 AY 47/25 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, Limburgerhof municipal administration, Speyer Social Court
Is the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act unconstitutional?
Detlef Brock
1. For the grounds, see SG Speyer – decision of 09.07.2025 – file number: S 16 AY 76/25 ER
Source: Attorney Sven Adam
6.6 – SG Freiburg, judgment of 03/17/2025 – S 7 AY 32555/24 –
Detlef Brock
AsylbLG states: 1. It is no more reasonable to expect recipients of asylum seeker benefits than recipients of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), to allow mandatory contributions to statutory health or long-term care insurance to accumulate as debt, or to pay these contributions – thereby falling below the constitutionally guaranteed minimum subsistence level – by misappropriating basic benefits.
Guiding Principles www.sozialgerichtsbarkeit.de
1. If a recipient of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) is subject to mandatory follow-up insurance in the statutory health and long-term care insurance schemes under Section 188 Paragraph 4 of the German Social Code, Book V (SGB V) due to previous employment subject to social security contributions, and cannot opt out of this insurance under Section 188 Paragraph 4 Sentence 2 of the SGB V, the monthly contributions to the mandatory follow-up insurance must be considered separately as a need when calculating asylum seeker benefits, as they are not already covered by Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
2. For recipients of benefits under the Asylum Seekers' Benefits Act (AsylbLG) whose earned income is offset against their needs pursuant to Section 7 Paragraph 3 of the AsylbLG, contributions are taken into account by deducting the contributions from the earned income to be offset. If the earned income to be offset is insufficient to cover the contributions, or if the recipient has no earned income to be offset, the contributions (or the uncovered portion thereof) are to be covered by supplementary cash benefits pursuant to Section 6 of the AsylbLG. Because insurance coverage is maintained even in the absence of contribution payments, these supplementary benefits are not considered health-related benefits pursuant to Section 16 Paragraph 3a Sentence 3 and Sentence 5 of the German Social Code, Book V (SGB V), but rather benefits essential for securing the recipient's livelihood.
3. Despite the absence of a corresponding parallel provision to Section 26 of the German Social Code, Book II (SGB II) or Sections 32 and 32a of the German Social Code, Book XII (SGB XII) in the law governing asylum seeker benefits, it is no more reasonable to expect recipients of asylum seeker benefits than recipients of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), to allow mandatory contributions to statutory health or long-term care insurance to accumulate as debt or to pay these contributions – thereby falling below the constitutionally guaranteed minimum subsistence level – by misappropriating basic benefits.
4. The discretion granted to the benefit provider under Section 6 of the Asylum Seekers' Benefits Act (AsylbLG) regarding the provision of supplementary benefits is generally reduced to "zero" at least when the benefit recipient has a permanent prospect of remaining in the country or when the end of their stay in the Federal Republic is not imminent or foreseeable.
Note:
Not legally binding, appeal pending before the Baden-Württemberg State Social Court, case number L 7 AY 1616/25
6.7 – Lower Saxony-Bremen State Social Court – Decision of 02.07.2025 – Case No.: L 8 AY 22/25 B ER
Legal norms: Section 1 Paragraph 4 Asylum Seekers' Benefits Act (AsylbLG), Section 193 Social Court Act (SGG) – Keywords: Cost decision, exclusion from benefits pursuant to Section 1 Paragraph 4 AsylbLG, European law, discretionary power to revoke, Gifhorn district, Lower Saxony-Bremen State Social Court
Exclusion from benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG)
Detlef Brock adds:
1. The authority must reimburse the applicants' extrajudicial costs for both instances because the dismissal notice from 02/2025 is not lawful.
2. The court has doubts as to whether the conditions for an exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) were met.
3. Thus, the interpretation of the element of the offense in Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), which was only included in the Act following a recommendation for a resolution and a report by the Committee on Internal Affairs and Community (4th Committee; BT-Drs. 20/13413), namely that for the person affected by the exclusion from benefits, "departure must be legally and factually possible according to the determination of the Federal Office for Migration and Refugees", its meaning is still largely unclear in case law and literature (cf., for example, Social Court Hamburg, decision of 11 April 2025 – S 28 AY 188/25 ER –).
Source: Attorney Sven Adam
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