DECISION
L 8 SO 19/26 B ER S 44
SO 4037/25 ER Social Court Hildesheim
In the appeal proceedings
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
1. to 5. residing at: xxx,
2. to 4. represented by xxx and xxx
– Applicant and complainant –
Legal representative: for 1-5:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen
against
City of Göttingen,
Legal Department, Hiroshimaplatz 1 – 4, 37083 Göttingen
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on February 20, 2026 in Celle through Judge xxx and Judges xxx and xxx:
The applicants' appeal against the decision of the Hildesheim Social Court of 13 January 2026 is dismissed.
Extrajudicial costs are not reimbursable, even for the appeal proceedings.
The applicants are granted legal aid for the appeal proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
REASONS
I.
The dispute concerns the respondent's obligation to provide suitable accommodation for the applicants as temporary assistance in special circumstances pursuant to Sections 67 et seq. of the German Social Code, Book XII (SGB XII).
The applicant in case 1, born in 1989, is the single mother of the still minor applicants in cases 2 to 5 (born in 2010, 2016 and 2021). Her husband is currently incarcerated in the xxx prison. The applicants receive subsistence benefits under the German Social Code, Book II (SGB II).
The family has lived for several years in an apartment building complex in Göttingen. Two of the original co-owners of the complex, [names omitted], have since filed for bankruptcy. According to media reports, a new investor recently purchased a large number of apartments in the complex (around 300 of the 432 units) as the majority owner. The co-ownership association also includes private owners.
The applicants state that their two-room apartment (which they still occupy) is infested with mold in all rooms, and one window cannot be opened. The electrical system in one room is no longer working. The toilet is constantly running. There has been water damage. The apartment is infested with cockroaches and mice. The heating system is not working. Due to these circumstances, the applicants are currently reducing their rent by 100 percent.
On October 30, 2025, the applicants filed an application for preliminary legal protection with the Göttingen Administrative Court (VG Göttingen) seeking to have the apartment declared uninhabitable pursuant to Section 5 Paragraph 1 No. 2 of the Lower Saxony Housing Protection Act (NWoSchG) and to have the applicants provisionally accommodated elsewhere under reasonable conditions at the landlord's or insolvency administrator's expense, pursuant to Section 5 Paragraph 4 NWoSchG, or alternatively, through regulatory measures pursuant to Section 11 of the Lower Saxony Public Safety and Order Act (NPOG). The Administrative Court rejected the application because the applicants could not derive a subjective public right from Section 5 Paragraph 1 No. 2 NWoSchG, and therefore no claim to alternative accommodation existed under Section 5 Paragraph 4 NWoSchG. The applicants had not credibly demonstrated a claim for regulatory accommodation under Section 11 NPOG because they were not homeless or acutely threatened with homelessness. Homelessness due to inhumane housing could only be assumed in very limited exceptional cases. Such a special case could not be assumed in the case of the applicants' rented apartment, which remained usable and was not to be considered uninhabitable (decision of 12 November 2025).
In the meantime, on November 4, 2025, following a legal suggestion from the Administrative Court, the applicants submitted an application to the respondent pursuant to Sections 67 et seq. of the German Social Code, Book XII (SGB XII), requesting accommodation under reasonable conditions. They argued that, as a single mother with a Romanian surname and limited German language skills, it was hopeless for applicant no. 1 to find an apartment on the open housing market. The respondent then pointed out that the assistance provided under Sections 67 et seq. of the SGB XII primarily serves to enable eligible individuals to participate responsibly in community life by addressing or mitigating their adverse living conditions and activating their self-help resources. This includes, in particular, socio-educational measures (counseling and personal support). She was advised to contact a (named as an example) recognized institution for the provision of outpatient assistance in accordance with Sections 67 et seq. of the German Social Code, Book XII (letter dated November 5, 2025).
On November 6, 2025, the applicants filed an application for a preliminary injunction with the Hildesheim Social Court (SG), arguing that their particular living circumstances stemmed from the uninhabitability of their apartment, effectively rendering them homeless. They stated that they had already fallen ill several times due to mold infestation. They were unable to provide proof of a health hazard due to a lack of financial resources. They requested a structural engineering report, also addressing the lack of heating in the apartment. The family was being ostracized by prejudiced behavior. Their place of residence alone led to stigmatization and exclusion. The respondent was obligated to provide the applicants with housing. Section 4, Paragraph 1 of the Ordinance on the Implementation of Assistance to Overcome Special Social Difficulties (Ordinance on Section 69 of the German Social Code, Book XII) does not limit the entitlement to counseling and support services. Measures to maintain and procure housing pursuant to Section 68 Paragraph 1 of the German Social Code, Book XII (SGB XII), are also necessary in accordance with Section 1 Paragraph 2 Sentence 1 of the Ordinance pursuant to Section 69 SGB XII, even if the existing housing is inadequate. The 35 square meter apartment is also insufficient for the family. Without adequate housing, living in the community is impossible. Applicants 4 and 5 are often unable to attend kindergarten due to illness and are therefore hindered in learning German. The respondent is aware of the need for assistance, as it is responsible as a guarantor of the welfare state. Section 68 SGB XII provides a legal basis for entitlement to material benefits covering the costs of acquiring and furnishing housing, as also stipulated in Section 2 Paragraph 2 Sentence 1 of the Ordinance (referring to specific case law). The assistance provided by the social worker supporting the family is insufficient. The only discretionary consideration is the type of service provided, but this can be reduced to zero in the context of providing accommodation. Applicant 1, with the assistance of an interpreter, constantly monitors the housing market and sends inquiries to landlords for apartments within the city of Göttingen (inquiries dated November 8, 10, and 17, as well as December 1 and 18, 2025). However, the housing market is effectively closed to her. The city is her home; she attends school and kindergarten there and is deeply rooted in the community. Nevertheless, the search for an apartment has been extended to the Göttingen district – but without success.
The respondent pointed out that the applicants were receiving support from a social worker in their search for housing. She had suggested extending the search beyond the tight housing market of the city of Göttingen. She also argued that the expanded search efforts demonstrated the applicants' ability to find housing independently. She maintained that the assistance provided under Sections 67 et seq. of the German Social Code, Book XII (SGB XII), did not create an entitlement to the actual provision of housing in the sense that the applicants would be provided with a market-rate apartment.
The Social Court rejected the application for a preliminary injunction because the applicants had failed to demonstrate a legitimate claim to such an injunction and the particular urgency of the matter (grounds for the injunction). Given the dilapidated condition of the apartment, it was incomprehensible that they had initially searched for accommodation only within the city limits of the respondent. While the search radius had been expanded following a judicial suggestion, the results of this expansion were not presented, which also argued against the existence of a particular urgency. Furthermore, Sections 67 et seq. of the German Social Code, Book XII (SGB XII) do not provide for a right to temporary accommodation. Although the applicants were indeed in need of assistance within the meaning of Section 67 SGB XII, and assistance to overcome social difficulties includes measures to obtain housing, doubts remained as to whether the apartment in question was adequate. Even if Section 68 of the German Social Code, Book XII (SGB XII) were to establish a right to housing, it has not been substantiated that the respondent possesses such housing. An obligation to do the impossible is out of the question (decision of January 13, 2026).
The applicants appealed this decision on January 20, 2026, arguing that it was incomprehensible why the Social Court (SG) was not convinced that the apartment was inadequate, given that it had itself recognized its dilapidated condition. Furthermore, a structural engineering report had not been obtained without explanation. The condition of the apartment continues to deteriorate, even after its purchase by the new owner. The family's social difficulties are directly linked to the inadequate living situation. Moreover, the risk of long-term illness is increasing. It is unclear how the respondent is fulfilling its legal obligation to protect the applicant's physical integrity. Most recently, preliminary legal proceedings before the Social Court, in which the applicants sought reimbursement for the costs of repairing the electrical system in one room, were unsuccessful (Social Court decision of January 23, 2026 – S 16 AS 4246/25 ER; see also the Job Center's rejection notice of February 4, 2026, and the objection filed against it on February 17, 2026). The respondent intends to implement a "housing policy agenda" regarding the property and is behaving inconsistently. Since she is a joint provider of services for the housing acquisition pilot project with the Göttingen district, it is also incomprehensible why she should be unable to rent suitable accommodation. Furthermore, the threshold for what constitutes suitable accommodation must be raised in this specific case, and the exact amount must be defined. The applicants are failing in their search for housing, which is now taking place outside the city limits and for which they are dependent on the cooperation of their social worker, who is only available to them sporadically. A prolonged stay outside the Göttingen district is unreasonable for them, particularly because they need to maintain contact with their father. They feel abandoned by the administration and the justice system. The urgency of their case stems from the need to eliminate a health hazard and the constitutionally guaranteed protection of the family. The mold infestation is repeatedly destroying the applicants' property. Their current housing situation constitutes an undue hardship. All available civil and administrative legal remedies have been exhausted.
The respondent refers to her submissions in the first instance. The new majority owner has already initiated extensive measures to address the problems. The applicants have been offered alternative accommodation within the building complex by the new majority owner in the form of two adjacent apartments.
II.
The appeal, which was filed in due form and time (§ 173 SGG) and is also admissible in all other respects, in particular permissible (§ 172 para. 1 and 3 no. 1, §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is unfounded. The Social Court was correct in rejecting the application for interim relief.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The disputed legal relationship arises from the applicants' application to the respondent on November 4, 2025, which has not yet been decided. In this application, the applicants assert a claim for assistance to overcome particular social difficulties pursuant to Sections 67 et seq. of the German Social Code, Book XII (SGB XII), solely in the form of an obligation on the part of the respondent to provide them with suitable accommodation under reasonable conditions. The claim for assistance under Sections 67 et seq. of the SGB XII constitutes a separate and severable subject matter of the dispute (Wehrhahn in jurisPK-SGB XII, 4th ed. 2024, Section 67, para. 46).
The applicants have not sufficiently substantiated their claim under Sections 67 et seq. of the German Social Code, Book XII (SGB XII), to compel the respondent to provide accommodation.
Applicants receiving benefits under Book II of the German Social Code (SGB II) are not automatically excluded from entitlement to assistance under Sections 67 et seq. of Book XII of the German Social Code (SGB XII) (see Section 5 Paragraph 2 SGB II, Section 21 SGB XII). There are no sufficient grounds to assume an exclusion from benefits under Section 23 Paragraph 3 Sentence 1 SGB XII.
The applicants are in principle entitled to benefits under Sections 67 et seq. of the German Social Code, Book XII (SGB XII).
According to Section 67 Sentence 1 of the German Social Code, Book XII (SGB XII), individuals whose particular life circumstances are associated with social difficulties are entitled to benefits to overcome these difficulties if they are unable to do so on their own. According to the jurisprudence of the Federal Social Court (BSG) (judgment of December 12, 2013 – B 8 SO 24/12 R – juris), which this Senate has adopted (see Senate judgment of June 24, 2021 – L 8 SO 50/18 – juris para. 19), the criterion of "particular life circumstances" refers to the individual's social situation, which must be characterized by a particular shortage – for example, of housing. This is specified in Section 1 Paragraph 2 Sentence 1 of the Ordinance pursuant to Section 69 SGB XII by an abstract description of various typical situations in which, from the legislator's perspective, such particular life circumstances can be assumed. These circumstances include, for example, a lack of or insufficient housing, or comparable adverse conditions, which exist when the person seeking assistance's basic existential needs (such as dignified living conditions) are not met or are significantly jeopardized (Wehrhahn in jurisPK-SGB XII, 4th ed. 2024, § 67 para. 19). General difficulties on the housing market do not, in themselves, constitute special circumstances, but can be assumed if further circumstances are present, for example, if symptoms of exclusion become concretely apparent in the affected person's life situation (Wehrhahn, ibid., § 67 para. 21 with further references, para. 22 with further references: assumed, for example, in the case of a single parent with six children; Luthe in Hauck/Noftz, SGB XII, 6th ed. 2025, § 67 para. 4). General housing defects such as mold infestation, neighborhood disputes, or heating problems do not, in principle, constitute special living conditions within the meaning of Section 67 Sentence 1 of the German Social Code, Book XII (Luthe, ibid., Section 67, marginal note 14). A special living situation can be assumed in the presence of unfavorable social conditions if, based on life experience and considering the individual case, these conditions make the occurrence of exclusion likely without state assistance (Luthe, ibid., Section 67, marginal note 4). Specific situations of deprivation are required, which differ sufficiently in nature and intensity from general risks of modern life (unemployment, separation from family, illness) (Luthe, ibid., Section 67, marginal note 13). In contrast, "social difficulties" do not primarily concern economic difficulties, but rather the impairment of interaction with the social environment and thus the restriction of participation in community life. The difficulties in question must be social difficulties that typically accompany particular life circumstances and that go beyond those social difficulties already required for claiming other social assistance benefits under Book XII of the German Social Code (SGB XII) (see, regarding the above, Federal Social Court (BSG), judgment of December 12, 2013 – B 8 SO 24/12 R – juris para. 16). Accordingly, the threat of losing one's home after release from prison generally falls under the category of "particular life circumstances with social difficulties" within the meaning of Section 67 of Book XII of the German Social Code (SGB XII), because the loss of one's home, similar to the loss of a job, is significantly more difficult for a released prisoner to cope with than for other citizens (Senate judgment of June 24, 2021 – L 8 SO 50/18 – juris para. 20). Social difficulties exist, according to Section 1 Paragraph 3 of the Ordinance on Section 69 of the German Social Code, Book XII (SGB XII), "when life in the community is significantly restricted by exclusionary behavior of the person seeking assistance or a third party, in particular in connection with maintaining or obtaining housing, obtaining or securing employment, family or other social relationships, or criminal activity." Imminent social difficulties are also covered (see Section 68 SGB XII).
Based on these criteria, the Senate considers the applicants' particular circumstances, involving social difficulties, to be sufficiently substantiated in this case. The applicants, four of whom are minors – two of whom are of kindergarten age – live together in a 36-square-meter, two-room apartment. The apartment is infested with mold and vermin, lacks proper heating, and only one room has functioning electrical wiring. The Senate attributes the social difficulties primarily to the fact that the first applicant, as a single mother of four minor children, faces difficulties and social exclusion in her search for suitable new accommodation, given her Romanian surname, her difficulties with the German language (assumed to be true), and her husband's imprisonment. Therefore, the question of whether she actually faces social exclusion in her search for housing simply because of her current address, as she has argued through her lawyer, is not decisive. There are already doubts about this, because according to the submitted search efforts, contact with landlords was always made via a social worker without specifying the applicants' current residential address.
As an expression of the general principle of subsidiarity in social assistance (§ 2 SGB XII), a further eligibility requirement (so-called internal subsidiarity) is that the person in need of assistance cannot overcome the difficulties on their own (§ 67 sentence 1 SGB XII). Whether and to what extent the person concerned possesses the capacity for self-help must be determined based on the circumstances of the individual case (cf. Bieback in Grube/Wahrendorf/Flint, SGB XII, 8th ed. 2024, § 67 para. 20). This assessment requires a prognosis by the benefit provider, which may take into account, for example, the cause and duration of the need for assistance over a longer period, as well as previous self-help efforts. Whether this prognosis is subject to only limited judicial review due to the administration's particular proximity to the matter (as argued by Luthe in Hauck/Noftz, SGB XII, 6th ed. 2025, § 67 para. 47 et seq.; Wehrhahn in jurisPK-SGB XII, 4th ed. 2024, § 67 para. 32; contra Bieback, ibid., para. 22) need not be definitively decided here. With regard to a claim for benefits under §§ 67 et seq. of the German Social Code, Book XII (SGB XII) in principle (the specific claim for benefits will be addressed shortly), the applicants have credibly demonstrated that they are unable to overcome the social difficulties associated with their housing situation on their own. In this respect, there is no need to clarify the relationship between the assistance and police and public order law (cf. Kaiser in BeckOK SozR, as of 01.12.2025, § 67 SGB XII Rn. 7), because the applicants have already unsuccessfully attempted to obtain placement under public order law by seeking preliminary legal protection (cf. decision of the Göttingen Administrative Court of 12.11.2025 – 1 B 698/25).
However, the applicants have not yet credibly demonstrated a specific claim to accommodation in residential space pursuant to Sections 67 et seq. of the German Social Code, Book XII (SGB XII).
While a person seeking assistance has an enforceable legal claim against the responsible social welfare agency under Section 17 Paragraph 1 of the German Social Code, Book XII (SGB XII), to receive assistance if the conditions of Section 67 Sentence 1 SGB XII are met ("benefits must be provided"), the specific nature and scope of the assistance are at the discretion of the social welfare agency (Section 17 Paragraph 2 Sentence 1, Section 10 SGB XII, so-called discretionary selection). In this respect, the benefits under Section 68 Paragraph 1 SGB XII include all measures necessary to avert, eliminate, or mitigate difficulties, or to prevent their worsening, in particular counselling and personal support for the beneficiaries and their relatives, assistance with education, obtaining and securing employment, and measures to maintain and procure housing (Sentence 1). In appropriate cases, a comprehensive plan must be drawn up to implement the necessary measures (Sentence 2). When deciding on a specific measure, expert opinions and assessments can be of particular importance with regard to the objectives of Section 68 of the German Social Code, Book XII (SGB XII) (see Kaiser in BeckOK SozR, as of December 1, 2025, Section 68 SGB XII, para. 9). In this respect, the recipient of benefits has a right to the proper exercise of discretion in accordance with the purpose of the authorization (Section 39, para. 1, sentence 2 of the German Social Code, Book I (SGB I)), but not a legal entitlement to a specific type of benefit, unless a so-called "reduction of discretion to zero" has occurred with regard to the requested benefit (Federal Social Court (BSG), judgment of July 1, 2009 – B 4 AS 77/08 R – juris para. 10). When exercising discretion, Section 10, para. 2 of the German Social Code, Book XII (SGB XII) and the regulations of the Ordinance on Section 69 of the German Social Code, Book XII (SGB XII) must be observed (Luthe, ibid., Section 67, para. 84). The assistance listed in Section 4 of the Ordinance on Section 69 of the German Social Code, Book XII (SGB XII), is not excluded, including assistance for maintaining and obtaining housing. This assistance encompasses not only personal support (Section 4, Paragraph 1 of the Ordinance on Section 69 SGB XII) but also other services for obtaining and maintaining housing (Section 4, Paragraph 2 of the Ordinance on Section 69 SGB XII). The legislator has prioritized advising and supporting the person seeking assistance (Roscher in LPK-SGB XII, 13th edition 2024, Section 69, marginal note 21). However, (further) monetary and/or in-kind benefits are not excluded, particularly if the eligible group of people is denied access to market-rate rental properties (Luthe in Hauck/Noftz, SGB XII, 6th supplement 2025, Section 69, marginal note 11). The discretionary decision subsequently granted to the benefit provider may only be reviewed by the court to a limited extent – even in expedited court proceedings. Therefore, the issuance of a regulatory order pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG) for the provisional granting of benefits is only considered in exceptional cases, particularly in the event of a so-called reduction of discretion to zero (see Keller in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, Section 86b, marginal note 30a) or, if applicable, if a new decision by the authority, free from errors of discretion, would with a high degree of probability lead to the measure requested by the applicant (see the references in Burkiczak in jurisPK-SGG, 2nd ed. 2022, Section 86b, marginal note 391; see also Senate decision of July 2, 2020 – L 8 AY 37/20 B ER – juris, marginal note 9 with further references).
Based on these guidelines and taking into account the circumstances of the individual case described above, the Senate does not currently consider it absolutely necessary, in the sense of reducing discretion to zero or as a last resort, that the applicants can only receive the necessary assistance under Sections 67 et seq. of the German Social Code, Book XII (SGB XII) if the respondent places them in a specific apartment. In assessing the circumstances of the individual case, it is essential to consider that the administrative procedure is still in the application stage, that the respondent has not yet conducted an expert assessment of the applicants' needs and the available assistance, and that the first applicant has not yet made use of the counselling and support services offered by the respondent on November 5, 2025 – immediately after submitting the application. The counselling and personal support services within the meaning of Section 68 of the German Social Code, Book XII (SGB XII) are specified in Section 3 of the Ordinance pertaining to Section 69 of the German Social Code, Book XII (SGB XII). The content of the advice and personal support is determined by the objective of Section 9 Paragraph 1 of the German Social Code, Book I (SGB I) and the individual's need for assistance (Roscher in LPK-SGB XII, 13th edition 2024, Section 68, marginal note 7). The assistance must begin by determining the need for help, identifying the causes of the particular life circumstances and social difficulties (Section 3 Paragraph 1 of the Ordinance on Section 69 SGB XII), and raising awareness of these causes among the person entitled to benefits. Since the benefits under Section 68 of the German Social Code, Book XII (SGB XII) aim, among other things, to enable the eligible person to help themselves (Section 2 Paragraph 1 of the Ordinance on Section 69 SGB XII; regarding the priority of self-help under Section 67 Sentence 1 SGB XII, see above), Section 3 Paragraph 2 of the Ordinance emphasizes that measures of advice and personal support also include assistance in claiming potential social benefits or in enforcing claims to benefits in kind, services, and cash benefits. It must be acknowledged that the respondent has thus far only fulfilled its duty to provide advice and support to a limited extent through its offer of assistance in writing dated November 5, 2025. Due to the internal subsidiary nature of assistance under Sections 67 et seq. of the German Social Code, Book XII (SGB XII), and the priority given to promoting self-help, it is currently (still) reasonable for the applicant to first make use of the advice and support offered by the designated agencies. This should also include support from, for example, the Housing Assistance Office or other expert advice and support within the framework of priority self-help (Section 67, Sentence 1, SGB XII, see above), especially since the applicant herself points out that the social worker currently supporting her is bound by time constraints and only works on a voluntary basis. The documentation of the applicant's search efforts, submitted only in the initial proceedings, ends with evidence dated December 18, 2025, submitted to the Social Court on December 23, 2025, so that its outcome remains unclear, particularly in the appeal proceedings. As part of the discretionary considerations, it must also be taken into account that the first applicant, despite the described deplorable living conditions, limited her search for suitable accommodation for a considerable period to the tight housing market (solely) within the city of Göttingen. According to her own statements, she only expanded her search to the Göttingen district at the end of December 2025, where, based on the submitted evidence, the geographical scope and outcome of these efforts cannot be reliably assessed. Even if she were to relocate to the district, regular visits from the incarcerated father of applicants 2 to 5 at the xxx prison should be manageable. Furthermore, the fact that applicants 2 to 5 attend school or kindergarten does not, in the context of the discretionary considerations, render a move to the district inherently unreasonable. As a further form of assistance, the respondent will also have to consider, within the framework of its discretionary decision yet to be made, the assumption of housing procurement costs (e.g. real estate agent fees) (see Bieback in Grube/Wahrendorf/Flint, SGB XII, 8th ed. 2024, § 68 para. 21), whereby an application under the SGB II is also possible in this respect (cf. Luthe in Hauck/Noftz, SGB XII, as of December 2025, § 68 para. 47). Taking into account the circumstances of the individual case, in particular the applicant's own efforts, which were only insufficiently substantiated, a special exceptional case in which the entitlement to benefits under Sections 67 et seq. of the German Social Code, Book XII (SGB XII) is limited solely to the provision of housing (see Roscher in LPKSGB XII, 13th ed. 2024, Section 68, para. 9; Strnischa in BeckOGK, Section 68 SGB XII, para. 31 with further references; see also Higher Administrative Court of Baden-Württemberg, decision of September 1, 2023 – 1 S 1210/23 – juris para. 47; Higher Social Court of North Rhine-Westphalia, judgment of September 8, 2022 – L 9 SO 281/21 – juris para. 34) cannot (yet) be assumed.
The decision on costs is based on § 193 SGG.
The applicants are to be granted legal aid for the appeal proceedings as requested. Despite the outcome of the legal dispute, the appeal had sufficient prospects of success within the meaning of Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO) at the time the legal aid application was ready for a decision. The legal action is also not frivolous.
When assessing the prospects of success, all circumstances must be taken into account (B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 73a para. 7). The constitutional framework must also be considered when evaluating whether there is a sufficient prospect of success. The assessment of the prospects of success must not serve to shift the actual pursuit or defense of the legal action into the legal aid proceedings; therefore, the requirements for the prospects of success must not be excessive. In light of the rule of law, it is sufficient for the granting of legal aid that there is a sufficient prospect of success in the legal dispute, without the success of the proceedings having to be certain. Legal aid may therefore only be refused if success on the merits is highly unlikely (Federal Constitutional Court, decision of April 7, 2000 – 1 BvR 81/00 – juris para. 15). Sufficient prospects of success exist if the applicant has a realistic possibility of achieving their legal objective through judicial review. For this purpose, it is sufficient if the court, based on a summary examination of the facts presented and the available documents, considers the applicant's legal position to be correct or at least tenable, and assumes that the applicant has the opportunity to present evidence (B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 73a para. 7a with further references). A certain probability of success is sufficient (B. Schmidt, ibid., § 73a para. 7).
Even though the appeal is ultimately unsuccessful, it is neither impossible nor remotely plausible that the applicants could have credibly demonstrated a right to an order for the provision of housing during the proceedings. Reference is made to the above statements in this regard.
Due to their economic circumstances, the applicants are unable to bear the costs of the litigation themselves, even partially or in installments.
The appointment of the lawyer is based on Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
The decision is final and cannot be appealed, § 177 SGG.
