Overview of case law – basic income support, social assistance, Asylum Seekers' Benefits Act (AsylbLG) and citizen's income
Last updated: March 8, 2026
Editor: Detlef Brock
Publisher: Tacheles Legal News Ticker
1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on employment promotion law under the German Social Code, Book III (SGB III)
1.1 – BSG, decision of 26.11.2025 – B 4 AS 12/25 R –
Topic:
Prerequisites and scope of offsetting according to § 43 SGB II in the case of reimbursement claims by the job center
Key message:
Offsetting declarations by the job center pursuant to Section 43 of the German Social Code, Book II (SGB II) do not require a legally binding reimbursement notice.
Editorial policy of www.anwalt24.de
- A set-off declaration by the job center has the character of a basic administrative act. A claim asserted by administrative act generally becomes enforceable upon notification and thus external effectiveness, unless otherwise stipulated for its internal effectiveness. The enforceability of the claim renders it due, unless the due date is expressly regulated otherwise. Therefore, the implementation of a set-off is precluded if and as soon as the administrative act on which the counterclaim is based is not enforceable. This is the case if an appeal is lodged that has suspensive effect, or if a court orders the suspensive effect of an appeal. However, the finality of an administrative act is not a prerequisite for its enforceability and thus also not for the due date of a claim asserted by it.
- If the basic requirements for an offset under Section 43 of the German Social Code, Book II (SGB II) are met and the job center orders an offset of ten percent, it is irrelevant whether an offset of thirty percent would also be lawful. In that case, the recipient of the decision lacks standing.
Source for the full text:
rechtsprechung-im-internet.de
Note from Detlef Brock:
- The Federal Social Court is once again strengthening the rights of basic income support providers under the SGB II/Jobcenter by ruling that offsetting declarations by the Jobcenter under § 43 SGB II do not require a legally binding reimbursement notice.
- In accordance with the recently published case law of the Federal Social Court (BSG), benefit recipients should always file an objection against the reimbursement notice and simultaneously against the offsetting notice of the job center.
Legal Notice:
SOCIAL LAW-JUSTAMENT (February 2026) by Bernd Eckhardt:
SJ 2/2026 (PDF)
1.2 – BSG, Judgment of 05.03.2026 – B 11 AL 6/24 R –
Legal question:
Is the accrual of unemployment benefit entitlement for persons applying for unemployment benefits who have personally registered as unemployed with the employment agency and have exercised their right of determination under Section 137 Paragraph 2 of the German Social Code, Book III (SGB III) in such a way that the entitlement should (only) accrue at a specific later date, more than three months in the future, dependent on a further registration as unemployed, because the effect of the earlier registration has expired?
Decision:
Federal Social Court strengthens the rights of unemployed people to determine the later date of their unemployment registration.
The Federal Social Court (BSG) has ruled that the unemployed woman is entitled to unemployment benefit I (ALG I).
The effect of the unemployment registration did not lapse simply because more than three months passed between the unemployment registration and the date specified by the plaintiff.
Section 141 paragraph 1 sentence 2 SGB III (old version – now sentence 3) already, according to its wording, its systematic position within the norm and its historical development, does not regulate the expiry of a personal notification that has already been made, but rather the earliest possible time for submitting such a declaration.
Since the sole purpose of the three-month rule is to protect the employment agency from having to begin placement efforts too early, it is recognized that the agency can waive its application. Section 137, paragraph 2 of the German Social Code, Book III (SGB III) typically presupposes such a waiver.
Its introduction was not intended to require the unemployed person to (re)register as unemployed within the last three months before the start of the entitlement period he or she effectively determined.
Key statement of the Federal Social Court:
If applicants have registered as unemployed and exercised their right of determination under Section 137 Paragraph 2 of the German Social Code, Book III (SGB III) in such a way that the entitlement should (only) arise at a specific later date, the accrual of the entitlement is generally not dependent on a further registration as unemployed.
Source:
bsg.bund.de
1.3 – BSG, Judgment of 05.03.2026 – B 11 AL 4/24 R –
Legal question:
Does an entitlement to unemployment benefits pursuant to Section 145 Paragraph 1 of the German Social Code, Book III (SGB III) exist even after the pension insurance provider has rejected a claim for full incapacity for work, until this rejection decision becomes legally binding?
Decision:
If subjective availability is lacking, there is no entitlement to unemployment benefits.
The Federal Social Court (BSG) has ruled that the plaintiff is not entitled to unemployment benefit I due to a lack of subjective availability.
Therefore, it is irrelevant whether the plaintiff has fulfilled the requirements for the granting of unemployment benefits due to a (prognostically) longer-lasting reduction in his ability to work lasting more than six months, based on the so-called seamless transition provision of Section 145 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III).
This regulation merely suspends the requirement of objective availability. At the same time, the determination of employability is transferred to the pension insurance institution.
Note from the court:
The Federal Employment Agency must observe the blocking effect of the seamless transition rule (§ 145 paragraph 1 sentence 1 SGB III).
As long as a reduction in earning capacity within the meaning of the German Social Code, Book VI (SGB VI) has not been (positively) established, the Federal Employment Agency is prohibited from invoking a permanently suspended capacity to work of the employee (so-called blocking effect).
However, this situation does not arise if the authority – as in this case – assumes unrestricted performance capacity.
The fact that the plaintiff assessed his ability to work differently and pursued the continued granting of his disability pension does not justify a different outcome. The willingness to work, which forms the basis for the claim, merely needs to correspond to the actual individual capacity to work.
Source:
bsg.bund.de
2. Decisions of the State Social Courts on basic income support under the German Social Code, Book II (SGB II)
2.1 – LSG Baden-Württemberg, Judgment of 22.10.2024 – L 13 AS 694/23 –
Subject:
Constitutionality of the level of standard benefit according to standard benefit level 2 in 2022
Decision:
The court is of the opinion that the level of the standard benefit according to standard benefit level 2 in 2022 was constitutional.
Source: www.socialgerichtsabilities.de
Legal note:
The decision was recently confirmed by the 7th Senate of the BSG on 02.12.2025 – B 7 AS 6/25 R.
Recommended reading:
Federal Social Court (BSG) denies legal protection and covers up billions of euros in shortfall in subsistence benefits
– see
Thomé Newsletter 09/2026
and
gegen-hartz.de
2.2 – LSG Hessen, Judgment of 15 October 2025 – L 6 AS 321/25 – Appeal pending BSG file number: B 7 AS 23/25 R
Subject:
The legal question is whether, contrary to the view considered correct by the job center, a deviation from the per capita principle is justified when considering the needs for accommodation and heating (even) in cases such as the present one – which is characterized by the fact that a resident of the apartment is excluded from receiving benefits in principle and not just temporarily, and the parties involved have (nevertheless) decided to live together in an apartment – from a needs perspective.
Decision:
The Hessian State Social Court and the lower court, the Darmstadt Social Court, deny the application of the head-of-the-house principle and rule:
The per capita principle for the division of accommodation and heating costs applies – regardless of the financial circumstances of the residents of the accommodation (with reference to the decision of the Hessian State Social Court of 25.01.2017 – L 9 AS 459/15 – nv).
Key message:
- If a person entitled to benefits – like the plaintiff – decides under appropriate circumstances to live together with another person who is fundamentally and not just temporarily excluded from subsistence benefits, she cannot demand that she be granted subsistence benefits for the entire apartment, which she only uses partially or jointly with the other person.
- This applies all the more if the apartment is occupied jointly and the relevant circumstances are already foreseeable and the apartment is designed for joint use, as is clearly the case here.
- According to the Senate, this applies regardless of whether the apartment would be considered cost-appropriate even when only taking into account the plaintiff's housing needs.
In this context, the Federal Social Court has ruled that the purpose of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is not to enable economically capable relatives of a person receiving benefits under the SGB II to live permanently free of charge in that person's apartment, even if the apartment is affordable (see Federal Social Court, judgment of January 27, 2021 – B 14 AS 35/19 R).
Source: www.socialgerichtsabilities.de
3. Decisions of the social courts on basic income support / citizen's allowance
3.1 – SG Hildesheim – Judgment of 08.01.2026 – S 24 AS 119/25 –
Subject:
Crediting of income – employer-paid inflation bonus – Section 1 Paragraph 1 No. 7 of the Citizen's Income Ordinance
Decision:
The court is of the opinion that the inflation bonus paid by the employer is not considered income. This is because, according to Section 1 Paragraph 1 No. 7 of the Citizen's Benefit Ordinance, tax-free benefits granted to mitigate increased consumer prices (so-called inflation compensation bonuses) are exempt from income assessment.
Source: Attorney Sven Adam
3.2 – SG Karlsruhe, judgment of 31.10.2025 – S 15 AS 1973/25 (legally binding)
Topic:
Crediting income from work as a lay judge against citizen's allowance – purely reimbursement of travel expenses and outlays
Decision:
The chamber concludes that the expense allowances for his work as a lay judge constitute income in the form of money. However, these are exempt from income assessment as earmarked income.
Honorary judges receive compensation including reimbursement of travel expenses, compensation for expenses, reimbursement for other expenses, compensation for loss of time, compensation for disadvantages in household management, and compensation for loss of earnings.
However, unlike compensation for loss of earnings, the reimbursement of travel expenses and other costs for lay judges is not a form of maintenance security, but merely serves to offset the expenses incurred in serving as a lay judge.
Key message:
The reimbursement of travel expenses and other costs for lay judges is earmarked income that is exempt from income assessment for citizen's allowance (§ 11a para. 3 sentence 1 SGB II).
4. Decisions on employment promotion law (SGB III)
4.1 – SG Nordhausen, Judgment of 06.11.2025 – S 18 AL 763/24 –
Subject:
Entitlement to unemployment benefits based on the seamless transition provision of Section 145 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) – no expiry of the unemployment registration
Decision:
The court states that participation in a rehabilitation program granted due to reduced earning capacity does not lead to the termination of unemployment registration pursuant to Section 141 Paragraph 3 No. 1 of the German Social Code, Book III (SGB III).
Guiding principles:
- If the entitlement to unemployment benefit is based on the seamless transition provision of Section 145 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), the registration as unemployed does not expire in the case of participation in a medical rehabilitation measure lasting more than six weeks, pursuant to Section 141 Paragraph 3 No. 1 of the German Social Code, Book III (SGB III).
Legal reference:
Social Court Nordhausen, file number: S 18 AL 266/20
5. Decisions on social assistance (SGB XII)
5.1 – LSG Hamburg, Judgment of 17 October 2024 – L 4 SO 61/23 D – Appeal allowed
Topic:
On the legal question of whether the discretion to be exercised in § 93 para. 1 sentence 1 SGB XII is intended.
Decision:
The Senate is of the opinion that Section 93 Paragraph 1 Sentence 1 SGB XII does not contain any intended discretion (left open by BSG, Judgment of 23.02.2023 – B 8 SO 9/21 R).
Key messages:
- The waiver of a usufruct right to real estate can constitute a gift within the meaning of Section 516 Paragraph 1 of the German Civil Code (BGB) due to the associated increase in the property's value. Therefore, a claim for restitution due to the impoverishment of the donor pursuant to Section 528 Paragraph 1 Sentence 1 of the German Civil Code (BGB) may be considered, which is generally transferable to the German Social Code, Book XII (SGB XII) pursuant to Section 93 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII).
- Section 93, paragraph 1, sentence 1 of the German Social Code, Book XII (SGB XII) does not contain any intended discretion. If the social welfare agency, in its decision regarding the transfer of a claim for the return of a gift, assumes intended discretion, the notification of transfer suffers from an error of discretion.
Source: www.socialgerichtsabilities.de
Legal note:
Section 93 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) does not contain any intended discretion.
See also: Bavarian State Social Court (BayLSG), Judgment of September 28, 2017 – L 8 SO 219/15 –
Contrary opinion: Berlin-Brandenburg State Social Court (LSG), Judgment of May 19, 2016 – L 23 SO 109/14 –
Left open: Federal Social Court (BSG), Judgment of February 23, 2023 – B 8 SO 9/21 R
6. Decisions concerning the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – SG Stuttgart – Decision of 19.02.2026 – S 9 AY 79/26 ER –
Subject:
Provisional granting of basic benefits according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Decision:
The court is of the opinion that the conditions for exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. This is because, in the present case, the Federal Office for Migration and Refugees (BAMF) has failed to make the determination required by the provision that departure is legally and factually possible.
Furthermore, without the corresponding cooperation of the BAMF, the applicant is not in a position to end the exclusion or restriction of benefits by voluntarily leaving the country.
Source: Attorney Sven Adam
Legal precedents:
Without the cooperation of the Federal Office for Migration and Refugees (BAMF), applicants cannot voluntarily end the exclusion or restriction of benefits by leaving the country (see Social Court Stuttgart, decision of 12 February 2026 – S 14 AY 461/26 ER; similarly, Social Court Heilbronn, decision of 22 September 2025 – S 15 AY 1887/25 ER, referring to Higher Social Court Lower Saxony-Bremen, decision of 13 June 2025 – L 8 AY 12/25 B ER; most recently, Higher Social Court Hesse, decision of 1 October 2025 – L 4 AY 5/25 B ER).
6.2 – SG Magdeburg – Decision of 18.02.2026 – S 25 AY 21/26 ER –
Subject:
Granting of benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 for residents living in communal accommodation.
Decision:
The Chamber grants the applicant benefits at standard benefit level 1, taking into account the decision of the Federal Constitutional Court of 19 October 2022.
Source: Attorney Sven Adam
6.3 – SG Magdeburg – Decision of 03.02.2026 – S 31 AY 18/26 ER –
Subject:
Benefits according to §§ 3, 3a AsylbLG in standard benefit level 1
Decision:
Provisional granting of benefits at standard benefit level 1, because the court is convinced that applicants in communal accommodations are entitled to standard benefit level 1.
Key point:
The Federal Social Court (BSG) has already suspended proceedings pending there under file number B 8 AY 1/22 R by decision of September 26, 2024, and referred the question to the Federal Constitutional Court (BVerfG) as to whether Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG, insofar as a single adult living in communal accommodation is only granted a benefit at level 2, are compatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle from Article 20 Paragraph 1 of the Basic Law.
The proceedings are still pending before the Federal Constitutional Court under file number 1 BvL 1/25.
Source: Attorney Sven Adam
Note on citation style
Unpublished judgments or comments may only be quoted with attribution to the source:
- Source: Tacheles Case Law Ticker Week XX/2025 – Author: Detlef Brock
- Newsletter: Thomé Newsletter 12/2025 from April 6th, 2025 - Author: Harald Thomé
- License: Creative Commons CC BY-SA 3.0
Quotations without source attribution are a violation of copyright law.
Author: Detlef Brock, editor of Tacheles.
Source: Tacheles legal news ticker, week 10/2026
