1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II) – Citizen's Allowance
1.1 – LSG Saxony-Anhalt, Judgment of 12.06.2025 – L 2 AS 79/24 – Appeal allowed
Citizen's allowance – income assessment – student financial aid under the Federal Training Assistance Act (BAföG) – training costs – school fees
Detlef Brock answers
the question of whether tuition fees for a private school can be deducted from income received under the Federal Training Assistance Act (BAföG) in individual cases, thereby reducing income, in the affirmative, because
1. the next free school would entail higher travel costs, and
2. the tuition fees for a private vocational school would be almost twice as high,
3. the associated time commitment would not have been reasonable for her as a single mother of a daughter who was six or seven years old during the period in dispute, and
4. insofar as the job center referred her to other state schools in other cities, the travel costs would have been even higher.
Principle www.sozialgerichtsbarkeit.de: In individual cases, tuition fees for a private vocational school can be deducted from income from educational assistance benefits as a necessary expense within the meaning of Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II) (following the decision of the Higher Social Court of Hamburg of June 18, 2019 – L 4 AS 155/19 B ER; contrary to the decision of the Higher Social Court of Berlin-Brandenburg of October 17, 2023 – L 4 AS 1273/20; see also the decision of the Higher Social Court of Mecklenburg-Western Pomerania of February 6, 2025 – L 10 AS 230/20).
Practical tip:
Hamburg Higher Social Court, judgment of – L 4 AS 223/23 D – appeal pending before the Federal Social Court, file number B 4 AS 8/25 R – Tacheles case law ticker, week 26/2025
1. Tuition fees for a private university or school fees for a private vocational school may, in individual cases, be considered necessary expenses within the meaning of Section 11b Paragraph 1 Sentence 1 Number 5 of the German Social Code, Book II (SGB II), and therefore be deductible from educational assistance benefits that are counted as income. However, this is conditional upon there being no reasonable, free alternative to the chosen course of study available (see Hamburg Higher Social Court, judgment of June 18, 2019 – L 4 AS 155/19 B ER).
LSG Mecklenburg-Vorpommern, Judgment of 06.02.2025 – L 10 AS 230/20 – Appeal pending before the BSG, Case No. B 7 AS 7/25 R – Tacheles Case Law Ticker Week 10/2025
1. The payment of school fees is not a necessary expense associated with generating income if the fundamental possibility of completing a tuition-free education exists.
1.2 – LSG Saxony-Anhalt, decision of 23.07.2025 – L 2 AS 177/25 B ER –
Basic income support for job seekers – Exclusion of benefits for foreigners residing for the purpose of seeking employment – Right of residence based on a child's school attendance – Siblings – Abuse of rights
Detlef Brock states:
1. The offense of abuse in connection with the guarantee of freedom of movement for workers is – as an exception in individual cases – to be interpreted narrowly in principle.
2. A Romanian family with 4 children, 3 of whom are minors, is entitled to citizen's income.
Principle www.sozialgerichtsbarkeit.de
1. A right of residence under Article 10 of Regulation (EU) No 492/2011 on the grounds of a child's school attendance requires the child's integration into the school system of the host Member State that goes beyond formal registration at the school, occasional visits to the school building, or infrequent participation in lessons. Actual and genuine participation in general instruction must have taken place.
2. A derived right of residence under Article 10 of Regulation (EU) No 492/2011 is not only granted to the parent who actually exercises parental responsibility for the schoolchild, but also to younger siblings in need of care whose actual care is also exercised by that parent.
3. Invoking employee status and the rights derived therefrom under Article 10 of Regulation (EU) No 492/2011 may constitute an abuse of rights if EU citizens exercise their freedom of movement for workers solely for the purpose of receiving social benefits in another Member State. This abuse provision is to be interpreted narrowly in principle. The mere receipt of citizen's allowance or basic income support for jobseekers, which is granted to supplement actual and genuine employment or for (further) integration into the labor market, does not in itself justify the assumption of an abuse of the right to freedom of movement. Further objective circumstances demonstrating the abuse of rights are required.
Practical tip also
LSG Saxony-Anhalt, decision of 27.08.2024 – L 4 AS 212/24 B ER – Tacheles case law ticker week 42/2024
1.3 – LSG NSB, judgment of 07/01/2025 – L 11 AS 597/23 –
Citizen's income: Despite administrative errors, ALG II (unemployment benefit II) must be repaid
The job center makes an error in the approval process, but the benefit recipient must repay the overpaid citizen's allowance, because a merely provisional benefit approval according to § 41a SGB II does not generally establish any legitimate expectation of continued entitlement (Guiding principle by editor of Tacheles e. V., Detlef Brock)
Detlef Brock adds:
1. Recipients of citizen's allowance must read and acknowledge the approval notices from the job center.
2. If the job center erroneously grants a benefit recipient the monthly amount of heating costs incurred once, instead of the one-off heating cost subsidy for heating oil that has been customary for years, and this results in benefits more than twice as high, the recipient cannot usually claim that he did not notice the illegality of the approval.
3. A recipient of benefits has the obligation to read a notice of approval and to take note of the key data contained therein.
Principle of the Lower Saxony-Bremen State Social Court:
1. Even if a job center grants provisional approvals in numerous cases, possibly even systematically, although final approvals should be issued, a benefit recipient cannot raise the objection of abuse of rights against a reimbursement claim after the final assessment. This applies at least if the reimbursement obligation is equitable.
2. A provisional benefit award pursuant to Section 41a of the German Social Code, Book II (SGB II) does not, in principle, establish any legitimate expectation of protection. This applies regardless of whether the conditions for ordering the provisional nature of the benefit were met or not.
3. If a benefit recipient is mistakenly granted the one-time heating cost allowance on a monthly basis instead of the one-time allowance that has been standard practice for years, and this results in benefits more than double the amount due, they generally cannot claim that they were unaware of the illegality of the grant. A benefit recipient has a duty to read a grant notice and to take note of the key information contained therein.
Practical tip:
No repayment of citizen's allowance is required if the recipient does not recognize the error made by the authorities.
If a citizen's allowance recipient accidentally receives excessive unemployment benefit II payments from the job center, these do not always have to be repaid.
LSG Berlin-Brandenburg: The protection of legitimate expectations in the case of revocation notices must be oriented towards the perspective of the recipient of the benefits
As a general rule: If a decision was incorrect from the outset, overpaid benefits cannot be reclaimed if the money has already been spent. This is explicitly stipulated in Section 45 Paragraph 2 of the German Social Code, Book X (SGB X).
However, authorities repeatedly argue that the person receiving benefits could (or should) have recognized the illegality, which is why there is no protection of legitimate expectations within the meaning of Section 45 Paragraph 2 Sentence 3 No. 3 SGB X.
The Berlin-Brandenburg State Social Court clarified this in its judgment of April 3, 2025 (Case No. L 3 AS 772/23):
The protection of legitimate expectations in the case of revocation notices must be based on the perspective of the benefit recipient – a recipient of citizen's income is not expected to be better at math than the job center. (Thomé Newsletter 14/2025 of April 21, 2025).
2. Decisions of the social courts regarding the German Social Code, Book II (SGB II) / Citizen's Allowance
2.1 – none
3. Decisions of the State Social Courts on Employment Promotion Law according to the German Social Code, Book III (SGB III)
3.1 – LSG NRW, Judgment of 27 January 2025 – L 20 AL 154/21 – Appeal allowed – www.sozialgerichtsbarkeit.de
Unemployment benefits: Entitlement to insolvency benefits also applies to special payments, in this case Christmas bonuses
Detlef Brock adds:
1. If a special payment – such as the Christmas bonus in this case – cannot be attributed to individual months, it must be taken into account in full for insolvency benefits if it should have been paid out during the insolvency benefit period.
2. The special payment in the form of Christmas bonus was a “claim to remuneration” within the meaning of Section 165 Paragraph 1 Sentence 1 and Paragraph 2 Sentence 1 of the German Social Code, Book III (SGB III).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Schleswig-Holstein Higher Social Court, Judgments of 26 March 2025 – L 9 SO 38/21 – and – L 9 SO 33/20 –
No conclusive concept for accommodation costs in the Segeberg district (empirica concept 2017)
Social assistance: A recipient of benefits is entitled to reimbursement of her actual rental costs if the authority does not have a conclusive concept.
In particular, the total sum of net rent and cold operating costs used by the social welfare office on the basis of the empirica concept 2017 has not been conclusively determined.
Principle www.sozialgerichtsbarkeit.de
If the amount of the cold operating costs considered appropriate is not conclusively determined, the gross cold rent used by the district is to be considered inconclusive in its entirety, without it being necessary to review the conclusiveness of the net cold rent.
If only data from apartments of basic standards are taken into account, the median of these values cannot be used to determine the appropriate ancillary costs (following BSG, judgment of 17 September 2020 – B 4 AS 22/20 R).
The private company commissioned to develop the concept can only establish the basis for potential improvements to the concept. The district social committee's decision regarding the existing, conclusive concept can only be amended by the district itself.
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – State Social Court of Saxony-Anhalt – Decision of 30 July 2025 – Case No.: L 8 AY 16/25 B ER
Legal norms: Section 1a Paragraph 4 AsylbLG, Section 1a Paragraph 2 AsylbLG, Section 193 SGG – Keywords: Benefit reduction, Croatia, cost decision, Altmarkkreis Salzwedel, State Social Court of Saxony-Anhalt
Cases within the direct scope of application of the Dublin III Regulation are not covered by Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act
Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) – The authority must bear the costs, because
1. The applicant was likely not covered by the scope of application of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) as long as her international protection in Croatia had not been granted. Cases falling directly within the scope of the Dublin III Regulation are not covered by Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (see Lower Saxony-Bremen Higher Social Court, judgment of May 24, 2018 – L 8 AY7/17 – juris para. 29; Leopold in Grube/Wahrendorf/Flint, SGB XII/AsylbLG, 8th edition 2024, Section 1a AsylbLG para. 93; Siefert in Siefert, AsylbLG, 3rd edition 2025, Section 1a para. 55; Oppermann in Schlegel/Voelzke, jurisPK-SGB XII/AsylbLG, 4th edition, as of June 3, 2025, Section 1a paras. 123, 127).
Source: Attorney Sven Adam
Important note on citation style:
Unpublished judgments, annotations, or case reviews may only be cited with source information:
Source: Tacheles Case Law Ticker KW XX/2025 – Author: Detlef Brock
Please cite
the following source for newsletters: Thomé Newsletter 12/2025 dated April xx, 2025 – Author: Harald Thomé
Published under Creative Commons license – CC-BY-SA 3.0.
Quotations without source attribution are copyright infringement.
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
