L 7 AY 1344/25 ER-B
S 15 AY 266/25 ER
SG Heilbronn
DECISION
in the proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
State of Baden-Württemberg,
represented by the Ludwigsburg District Office, Asylum Department,
Hindenburgstr. 40, 71638 Ludwigsburg
– Respondent and Appellant –
The 7th Senate of the State Social Court of Baden-Württemberg in Stuttgart
ruled on August 5, 2025, by
the judge at the State Social Court xxx as presiding judge,
the judge at the State Social Court xxx and
the judge at the State Social Court xxx
Decided without oral proceedings:
Upon the applicant's appeal, the decision of the Heilbronn Social Court of April 22, 2025, is amended, and the suspensive effect of the objection against the decision of December 4, 2024 (revocation of the decision of October 31, 2024) is ordered. The appeal is otherwise dismissed.
The respondent shall bear 60% of the applicant's extrajudicial costs in both instances.
REASONS
The applicant's appeal, filed on April 23, 2025, against the decision of the Heilbronn Social Court (SG) of April 22, 2025, is admissible and otherwise permissible (§§ 172, 173 Social Courts Act [SGG]). In particular, the appeal is not excluded under § 172 para. 3 no. 1 in conjunction with § 144 para. 1 SGG, because the value of the subject matter of the appeal exceeds the amount of 750 euros (cf. § 144 para. 1 sentence 1 no. 1 SGG). In the appeal proceedings, the applicant also seeks the (provisional) granting of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 instead of 2 (monthly difference: €44.00). He further seeks the application of the vested rights clause of Section 28a Paragraph 5 of Book Twelve of the German Social Code (SGB XII) in conjunction with Section 3a Paragraph 4 of the AsylbLG, and thus the consideration of the standard benefit rates applicable for 2024 (monthly difference with respect to standard benefit level 1: €19.00). He also seeks an order suspending the effect of his objection to the decision of December 4, 2024, by which the respondent discontinued the payment of contributions to the applicant's so-called mandatory follow-up insurance with the statutory health insurance and the social long-term care insurance in the amount of €223.88 per month. Even considering a period of only three months, this amounts to €860.64.
The complaint is also partially justified.
The Social Court (SG) correctly rejected the urgent application received on February 6, 2025, as unfounded insofar as it 1.) seeks the issuance of a regulatory order regarding the provisional granting of higher benefits, and insofar as it 2.) seeks the order of suspensive effect regarding the cessation of contribution payments to the mandatory follow-up insurance.
1.) With regard to the application of the standard benefit rates set for 2024 – regardless of the standard benefit level – instead of those applicable for 2025, no claim for an order has been established, and with regard to the consideration of standard benefit level 1 instead of 2 within the framework of the benefits granted to the applicant under Sections 3, 3a AsylbLG, at least no grounds for an order have been credibly demonstrated.
According to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. The issuance of a preliminary injunction requires that the applicant possesses a right or a legally protected interest (claim for an injunction) which would be thwarted or substantially impeded without the granting of preliminary legal protection, such that the applicant would suffer serious, unreasonable disadvantages that could no longer be remedied by a subsequent decision on the merits (ground for an injunction). Both the claim for an injunction and the ground for an injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure [ZPO]). Even if the legal remedy is clearly admissible and well-founded in the main proceedings, the requirements for the grounds for the order are reduced, but even in this case a ground for the order cannot be dispensed with (cf. decision of the Senate of 13 July 2021 – L 7 AY 1929/21 ER-B – juris para. 3 with further references; Keller in Meyer-Ladewig et al., SGG, 14th ed. 2023, § 86b para. 29).
As the Social Court correctly stated in its decision of April 22, 2025, the Asylum Seekers' Benefits Act (AsylbLG) does not contain a grandfathering clause corresponding to the provision in Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), for cases where, as in the present case, the adjustment of the standard benefit rates would otherwise lead to a reduction in the standard benefit rate. In particular, Section 28a Paragraph 5 of the SGB XII is not applicable via Section 3a Paragraph 4 of the AsylbLG, as is already evident from the wording. According to Section 3a Paragraph 4 Sentence 1 of the AsylbLG, the "monetary amounts pursuant to Paragraphs 1 and 2 [...] are adjusted annually on January 1st in accordance with the rate of change pursuant to Section 28a of the German Social Code, Book XII, in conjunction with the Ordinance on the Adjustment of Standard Benefit Rates pursuant to Section 40 Sentence 1 Number 1 of the German Social Code, Book XII." Section 3a paragraph 4 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not refer to Section 28a of the German Social Code, Book XII (SGB XII) (in conjunction with the Ordinance on the Adjustment of Standard Needs Levels (RBSFV) pursuant to Section 40 sentence 1 no. 1 SGB XII) in its entirety, but only to the rates of change determined according to the provisions of Section 28a SGB XII, which form a basis for the basic adjustment and the supplementary adjustment and are regulated in paragraphs 2 to 4 of Section 28a SGB XII (see also Siefert, jurisPR-SozR 22/2024 note 1). Although Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is one of the regulations concerning the updating of standard benefit rates (see Section 28a Paragraph 1 SGB XII), it does not contain a regulation regarding the rates of change, but rather an exception to the application of the update result: "If the update according to Paragraphs 2 to 4 results in euro amounts for the standard benefit levels that are lower than the euro amounts applicable in the previous year, the euro amounts determined for the previous year shall continue to apply until a subsequent update results in higher euro amounts." Since Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) solely stipulates the use of the aforementioned rates of change, the inclusion of the RBSFV 2025 (Standard Benefit Rate Adjustment Ordinance 2025), which specifies the relevant rates of change in Section 1 Paragraph 1, does not lead to a different result. Insofar as § 1 para. 2 RBSFV includes the application of § 28 para. 5 SGB XII due to the lower euro amounts of the standard benefit levels after the update, this is simply not covered by § 3a para. 4 sentence 1 AsylbLG.
Contrary to the opinion expressed in the decision of the Marburg Social Court of February 14, 2025 (S 16 AY 11/24 ER), on which the applicant relies, the Federal Government's draft bill of September 22, 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 (AsylbLG) in the version of December 23, 2014 (old version), does not lead to a different conclusion. The draft bill states, inter alia, "The amounts stipulated in the law for the year 2014 for cash needs and the monetary amounts pursuant to Paragraph 2 are derived by updating the amounts determined in the 2008 Income and Expenditure Survey (EVS). The updates made to the standard needs 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." The aforementioned decision states that, according to the legislator's intent, the adjustments made to the standard benefit rates under Book XII of the German Social Code (SGB XII) should be "exactly replicated" within the scope of the Asylum Seekers' Benefits Act (AsylbLG), and that the adjustment undoubtedly includes the protection of existing benefits rule in paragraph 5, which is clearly a calculation rule. According to the legislator's intent, Section 3a, paragraph 4 of the AsylbLG refers to the entirety of Section 28a of Book XII of the German Social Code (SGB XII), and thus also to Section 28a, paragraph 5 of Book XII of the German Social Code (SGB XII), and not merely to individual paragraphs of Section 28a of Book XII of the German Social Code (SGB XII) in isolation, as the reference to the "individual calculation rules" in the explanatory memorandum to the law would otherwise have been entirely superfluous.
It should first be noted that Section 3 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version merely stipulated that the adjustment of standard benefit rates would be carried out in accordance with the rate of change pursuant to Section 28a of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Benefit Rate Adjustment Ordinance (RBSFV) pursuant to Section 40 Sentence 1 No. 1 of the SGB XII – and not simply in accordance with the adjustment itself. The legislative history of Section 3 Paragraph 4 of the AsylbLG (AsylbLG) in its former version does not lead to a different conclusion. The referenced part of the legislative history merely describes the (completed) determination of the amounts fixed for 2014 and does not, in itself, provide any guidelines for future needs assessments. The text further states: "Since the legislator is obliged to always base the standard benefit calculations on the most up-to-date available information, the cash benefits under the Asylum Seekers' Benefits Act (AsylbLG) will in future be calculated on the basis of the recalculation of the standard benefits pursuant to Section 28 of the German Social Code, Book XII (SGB XII) when new EVS results are available, and the special evaluations to be carried out pursuant to Section 28 Paragraph 3 of the German Social Code, Book XII (SGB XII) will be used in this process (paragraph 5).".
Furthermore, in our view, Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is not a calculation rule, but rather a provision that permits or mandates a deviation from the result obtained according to the calculation rules. In particular, Section 3 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG aF), which was passed in 2014 and entered into force on March 1, 2015, could not yet have included the protection of acquired rights clause of Section 28a Paragraph 5 of the SGB XII, nor could it have been (implicitly) intended in the corresponding explanatory memorandum, because Section 28a Paragraph 5 of the SGB XII was only introduced with the Citizens' Income Act of December 16, 2022, and entered into force on January 1, 2023.
A corresponding grandfathering provision for standard benefit levels 4 to 6, as defined in Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), was not found at the time Section 3 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) (old version) came into force, but rather outside of Section 28a SGB XII in Section 134 SGB XII in the version of March 24, 2011. Section 3 Paragraph 4 Sentence 1 AsylbLG (old version) (and its explanatory memorandum) made no reference to this section, which further clarifies the limitation of the reference in Section 3 Paragraph 4 Sentence 1 AsylbLG (old version) and also in the current Section 3a AsylbLG to the regulation of the rates of change themselves in Section 28a SGB XII.
Finally, insofar as the applicant expresses concern regarding the calculation of the rate of change of the standard needs in the Asylum Seekers' Benefits Act (AsylbLG) that goods may have been included in the calculation that are not actually included in the basic needs, this suspicion cannot form the basis for a claim to the provisional granting of benefits exceeding the legally stipulated amount in preliminary legal protection.
With regard to the requested provisional granting of benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG), taking into account the standard needs level 1 – thus amounting to a total of 441 euros per month for the necessary and necessary personal needs instead of 397 euros – for the applicant accommodated in communal accommodation, there is at least a lack of credibility as to a ground for the order.
The mere fact that basic social security benefits are affected is not sufficient to generally assume an unavoidable disadvantage (see Federal Constitutional Court [BVerfG], decision of September 19, 2017 – 1 BvR 171917 – juris para. 8). The Social Court – to whose reasoning on the question of the claim for an injunction this Senate refers (§ 142 para. 2 sentence 3 of the Social Court Procedure Act [SGG]) – correctly stated, in particular, that the applicant must substantiate and demonstrate a specific need that is allegedly unmet and whose shortfall necessitates a court decision in preliminary proceedings, or what irreparable and irreparable damages are threatened by a subsequent decision on the merits. The applicant has not even begun to demonstrate which specific needs are allegedly unmet and that their shortfall necessitates a court decision by way of a preliminary injunction. In the court's opinion, a 10% shortfall in basic needs does not constitute an emergency situation requiring a decision in preliminary injunction proceedings. The applicant also failed to present any specific circumstances indicating an emergency situation arising from a shortfall of €44 per month. The Senate concurs, as the applicant's submissions in the appeal proceedings—essentially identical to those in other proceedings conducted by the applicant's legal representative—remain limited to general and unsubstantiated statements, such as the lack of sufficient funds for a healthy diet or the inability to save for a mobile phone or bicycle.
2.) Regarding the cessation of contributions to mandatory follow-up insurance in the statutory health insurance scheme pursuant to Section 188 Paragraph 4 of the German Social Code, Book V (SGB V), and in the long-term care insurance scheme pursuant to Section 20 Paragraph 3 of the German Social Code, Book XI (SGB XI), as ordered by the decision of December 4, 2024, and the revocation of the decision of October 31, 2024, granting these amounts, the applicant's request for an order suspending the effect of the objection of December 19, 2024, pursuant to Section 86b Paragraph 1 No. 1 of the German Social Courts Act (SGG), is admissible, since the objection does not have suspensive effect pursuant to Section 86a Paragraph 2 No. 4 SGG in conjunction with Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG). The application is admissible pursuant to Section 86b Paragraph 3 SGG even before the action was filed and is also admissible in all other respects. In particular, the applicant's need for legal protection is not diminished simply because the AOK, as the applicant's health and long-term care insurance provider, referred to its standard procedure in cases of need for assistance in a letter dated March 28, 2025, and stated that collection of the contribution claim against the applicant was not currently being pursued. While a need for legal protection for an application for an injunction generally does not exist if the authority has made a binding declaration that it will not enforce the decision (Keller in Meyer-Ladewig et al., SGG, 14th ed. 2023, § 86b para. 7a), in this case, the AOK is not the authority that issued the administrative act whose enforcement is to be temporarily prevented. Furthermore, there is no comparable factual or legal situation, as the AOK has not made a binding declaration to refrain from demanding contributions until a decision is reached in the main proceedings, but – as explained – merely stated that collection of the contribution claim is not currently taking place. Moreover, even with a temporary waiver of the contribution claim (Section 6 Paragraph 1 Principles of Contribution Collection), further contribution arrears accrue.
The application for an order suspending the enforcement of the decision is also well-founded. Pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), the court of first instance may, upon application, order the suspension of the enforcement of the decision in whole or in part in cases where an objection and an appeal do not have suspensive effect.
Since Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) does not itself provide a standard for when the suspensive effect is to be ordered, this gap must be closed by applying Section 86a Paragraph 2 No. 5 of the Social Court Act (SGG) accordingly (established case law of the Senate; see, e.g., decision of April 16, 2008 – L 7 AS 1398/08 ER-B – juris para. 4 and decision of the Senate of February 13, 2020 – L 7 AY 4273/19 ER-B –, juris para. 10). A balancing of interests is therefore required, whereby the public interest in the immediate enforcement of the administrative act and the constitutionally protected interest in suspension under Article 19 Paragraph 4 of the Basic Law must be weighed against each other (established case law of the Senate; see, for example, the decision of April 12, 2006 – L 7 AS 1196/06 ER-B – juris para. 4). The prospects of success of the main legal remedy must be taken into account in the required balancing of interests; the likely outcome of the main proceedings is of decisive importance in this balancing, at least insofar as the legal remedy appears manifestly well-founded or hopeless (see already BSGE 4, 151, 155; see also BVerfG, decision of October 30, 2009 – 1 BvR 2395/09 – juris para. 7). When ordering the suspension of enforcement in the cases of Section 86a Paragraph 2 Numbers 1 to 4 of the Social Court Act (SGG), in which – as here – the legal remedy does not have a suspensive effect by operation of law, the legislator's decision to give priority to abstract public interests must be observed; the order must therefore remain an exception that must be justified with weighty arguments (Keller, loc. cit., Section 86b marginal note 12c; Wahrendorf in Roos/Wahrendorf/Müller, BeckOGK-SGG, as of May 1, 2025, Section 86b marginal note 121). The prospects of success of the legal remedy in favor of the applicant are therefore regularly only to be taken into account if there are serious doubts as to the legality of the administrative act, i.e., if success in the main proceedings is predominantly probable (cf. Section 86a para. 2 sentence 2 SGG; see Senate decision of April 16, 2008, loc. cit.).
When weighing the interests of both parties, the applicant's interest in suspension outweighs the public interest in enforcing the decision of December 4, 2024. This is because the decision of December 4, 2024, is likely to have been issued unlawfully.
By decision dated December 4, 2024, the respondent revoked the previously granted approval of contribution payments for the applicant's mandatory follow-up insurance, in which the applicant had been insured since October 1, 2024, following the termination of employment subject to social security contributions, for the future from January 1, 2025, pursuant to Section 9 Paragraph 4 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 Paragraphs 1 and 2 of the Tenth Book of the Social Code (SGB X), and simultaneously declared that it would waive the recovery of any benefits already paid out in this context.
According to Section 45 Paragraph 1 of the German Social Code, Book X (SGB X), an administrative act that establishes or confirms a right or a legally significant advantage (a favorable administrative act), insofar as it is unlawful, may be revoked in whole or in part, with effect for the future or for the past, even after it has become legally binding, only subject to the restrictions of Paragraphs 2 to 4. An unlawful favorable administrative act may not be revoked if the beneficiary has relied on the validity of the administrative act and their reliance is worthy of protection when weighed against the public interest in revocation (Section 45 Paragraph 2 Sentence 1 SGB X). Reliance is generally worthy of protection if the beneficiary has consumed benefits received or has made a disposition of assets that they can no longer reverse or can only reverse with unreasonable disadvantages (Section 45 Paragraph 2 Sentence 1 SGB X). The beneficiary cannot invoke the principle of legitimate expectation if: 1. he obtained the administrative act through fraudulent misrepresentation, threats, or bribery; 2. the administrative act is based on information that the beneficiary intentionally or grossly negligently provided in a materially incorrect or incomplete manner; or 3. he knew of the illegality of the administrative act or was unaware of it due to gross negligence; gross negligence exists if the beneficiary has violated the required standard of care to a particularly serious degree.
Initially, the decision of October 31, 2024, is clearly a favorable administrative act, as the respondent thereby granted the applicant the assumption of the mandatory follow-up insurance from October 2024 onwards in the amount of €223.88. However, according to the summary review to be carried out in expedited proceedings (Burkiczak in Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG, as of May 22, 2025, para. 61), this was not unlawful. The only possible legal basis for the assumption of the contributions to the mandatory follow-up insurance is Section 6 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), according to which "other benefits" may be granted, in particular, if they are essential in individual cases to secure subsistence or health, necessary to cover special needs of children, or required to fulfill an administrative obligation to cooperate. According to Section 6 Paragraph 1 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), benefits are to be provided as benefits in kind, or as cash benefits in exceptional circumstances. The contributions to mandatory follow-up insurance are not, initially, benefits for the alternative circumstances listed in Section 6 Paragraph 1 Sentence 1 of the AsylbLG. For the applicant's health, the contributions to mandatory follow-up insurance are not essential because he is already entitled to healthcare under Section 4 of the AsylbLG, and there is no indication that this healthcare would be insufficient for him but would be adequately covered by comprehensive health insurance.
However, the assumption of contributions to the mandatory follow-up insurance is essential in this case to secure the livelihood within the meaning of Section 6 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). This exception systematically links to the lump-sum allowances of Sections 3 and 3a of the AsylbLG and supplements these regulations as a fundamental right. Where there are unavoidable needs not covered by the lump-sum allowances, the coverage of which is necessary to guarantee a dignified minimum standard of living, this provision functions as a hardship clause. Benefits are therefore essential where the minimum standard of living for human dignity is not met or is at risk of being not met. This is assessed primarily based on the quality of the affected right, the extent and intensity of the actual impairment in the event of benefit denial, the anticipated duration of the (further) stay in Germany, the availability of equally suitable and cost-effective benefits, and the possibility of meeting needs in another way (Spitzlei in BeckOK AuslR, 44th ed., April 1, 2025, AsylbLG § 6 para. 4). The circumstances of the case must always exhibit a certain degree of atypicality, which constitutes a particular hardship in the individual case. This hardship was not taken into account by the legislator in the lump-sum benefits under §§ 3, 3a AsylbLG, or, due to the atypical nature of the case, could not be factored in abstractly and generally (Spitzlei, ibid., para. 5). In this respect, benefits for renting or obtaining accommodation in the case of an officially ordered relocation, or costs of preliminary proceedings – which are not exempt from court fees under asylum seeker benefits law – with at least a sufficient prospect of success have been considered essential for securing subsistence (see Frerichs in Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 6 AsylbLG, as of December 23, 2024, para. 48 f.).
Contributions to mandatory follow-up insurance are not covered by the benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 3 Paragraph 1 of the AsylbLG, those entitled to benefits under Section 1 of the AsylbLG receive benefits to cover their needs for food, accommodation, heating, clothing, healthcare, and household goods and consumables (essential needs; sentence 1), as well as additional benefits to cover their personal needs of daily life (essential personal needs; sentence 2). The payment of contributions for mandatory follow-up insurance is specifically not a need covered by healthcare needs as defined in Section 3 Paragraph 1 Sentence 1 of the AsylbLG; the latter refers to specific necessary goods and services such as bandages, plasters, and wound cream (see Frerichs, op. cit., Section 3 AsylbLG, as of April 8, 2025, marginal note 100). The applicant was and remains unavoidably subject to the obligation to pay contributions; in particular, he could not declare his withdrawal from the mandatory follow-up insurance within two weeks of the end of the compulsory insurance period, since – unlike the case of receiving analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (see Federal Social Court, judgment of March 10, 2022 – B 1 KR 30/20 R –, BSGE 134, 6-13, SozR 4-2500 § 188 No. 4, SozR 4-2500 § 5 No. 31, SozR 4-3520 § 3 No. 6, juris para. 23) – he had no other entitlement to corresponding health insurance coverage (see Section 188 para. 4 sentences 1 and 2 of the German Social Code, Book V). In particular, the reduced benefit entitlement under Section 4 AsylbLG is not sufficient for this purpose (see BSG, judgment of March 10, 2022, loc. cit.).
The contribution demands of €223.88 per month also threaten the applicant's subsistence level, as he currently receives benefits based on a standard allowance of €397. This threat is not eliminated by the fact that the AOK (health insurance fund) referred to its standard procedure in cases of need for assistance in a letter dated March 28, 2025, and stated that the contribution demand was "currently" not being collected from the applicant. Nor does the fact that the applicant subsequently – after the issuance of the decision of December 4, 2024 – took up marginal employment, which does not require mandatory statutory health and long-term care insurance, alter this situation.
The atypical nature of the need required under Section 6 of the Asylum Seekers' Benefits Act (AsylbLG) arises from the fact that, although the applicant, as a beneficiary of benefits under the AsylbLG, may be subject to mandatory follow-up insurance, the AsylbLG – unlike the Social Codes II and XII (SGB II and XII), which also serve to secure the constitutionally protected minimum subsistence level – does not contain any provision for considering unavoidable mandatory contributions to statutory health and long-term care insurance as separate needs (Section 26 SGB II or Sections 32, 32a SGB XII; cf. Social Court Freiburg (Breisgau), judgment of March 17, 2025 – S 7 AY 3255/24 –, juris para. 36).
While the respondent has discretion regarding benefits under Section 6 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) both in deciding whether to grant benefits and in selecting the benefit (Frerichs, loc. cit., Section 6 AsylbLG, as of December 23, 2024, marginal note 40), the respondent cannot successfully argue (and has not done so) that it misjudged its discretion in favor of the applicant or exercised it unjustifiably in a favorable manner. Even if one were to take a different view, the applicant would at least have to assume a legitimate expectation of protection within the meaning of Section 45 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X).
Due to the partial success in the matter, the applicant is to be granted legal aid for the present appeal proceedings pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Sections 114 et seq. of the Code of Civil Procedure (ZPO) and a lawyer is to be appointed, since he cannot afford the costs of litigation according to his personal and economic circumstances and his legal action, at least with regard to the consideration of standard benefit level 1 and the continued payment of contributions to the mandatory follow-up insurance, offered the necessary sufficient prospect of success and did not appear frivolous (cf. Section 114 Paragraph 1 Sentence 1 ZPO).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
This decision is not subject to appeal (§ 177 SGG).
