Overview of case law
on basic income support, social assistance, asylum seekers' benefits law, citizen's allowance, and employment promotion law
Last updated: May 10, 2026
Editor: Detlef Brock
Publisher: Tacheles Legal News Ticker
1. Decisions of the state social courts on basic income support under the German Social Code, Book II (SGB II)
1.1 – LSG Baden-Württemberg, Judgment of 25.02.2026 – L 2 AS 2283/25 –
Topic:
On the legally valid claim for rent in rental agreements between relatives (here denied due to suspicion of a sham transaction)
Decision:
The Senate affirms the existence of a sham transaction, referring to case law and literature on Section 22 of the German Social Code, Book II (SGB II). In particular, it must be taken into account that the lease agreement was concluded more than three years ago between the plaintiff as tenant and his son as landlord.
If the person in need of assistance has failed to make rent payments for several years contrary to the submitted contractual agreement, without this leading to any consequences under tenancy law, this strongly suggests that there is no effective legal obligation to pay rent and that the transaction is a sham transaction under Section 117 of the German Civil Code (BGB), with the consequence that the person in need of assistance cannot claim housing costs from the benefit provider.
If, in the more than three years since the conclusion of the lease agreement, the plaintiff has only made the contractually owed rent payments for two months, but has not made any payments for the remaining time, without this having led to any recognizable consequences under tenancy law – despite accrued rent arrears of over €40,000 – then it cannot be assumed that there was a serious demand for rent.
Source:
www.socialgerichtsabilities.de
Case law references:
Baden-Württemberg Higher Social Court, judgment of 03.12.2025 – L 2 AS 559/25 –
Baden-Württemberg Higher Social Court, judgment of 26.02.2025 – L 3 AS 3681/21 –
Note by Detlef Brock:
Regarding the existence of a sham transaction in the context of SGB XII benefits, see: LSG Baden-Württemberg, judgment of March 25, 2026 – L 2 SO 80/26 –
1.2 – LSG North Rhine-Westphalia, decision of 01.04.2026 – L 7 AS 347/26 B ER –
Topic:
Compensation for use as accommodation costs
Compensation payments after termination of the tenancy are considered accommodation costs (§ 22 para. 1 SGB II).
Decision:
The Senate orders the job center to pay the compensation for use. This is because compensation payable under Section 546a Paragraph 1 of the German Civil Code (BGB) for the failure to return the rented property after termination of the tenancy is also to be included in the accommodation costs if the person concerned continues to live in the apartment despite the termination of the tenancy.
Source:
www.socialgerichtsabilities.de
Legal note:
North Rhine-Westphalia State Social Court, decision of 18 January 2013 – L 6 AS 2124/11 B –
Note by Detlef Brock:
See SG Potsdam, judgment of 26.06.2012 – S 40 AS 1680/09 –
If, after a member moves out of the shared apartment of the household receiving benefits, the remaining members are required to pay the vacating member a rental compensation, this compensation is equivalent to the costs of accommodation.
Or: SG Berlin, decision of 28.12.2023 – S 121 AS 6506/23 ER – RA Kay Füßlein.
2. Decisions of the social courts on basic income support / citizen's allowance
2.1 – SG Konstanz, Judgment of 20.02.2025 – S 10 AS 933/24 –
Topic:
Recovery of citizen's allowance in cases of gross negligence
Decision:
The court held that the late submission of the salary statements and the fact that the plaintiff had reported an insufficient amount of his salary to the job center constituted grossly negligent conduct, which is why the job center was entitled to reclaim the excess citizen's allowance received.
Furthermore, he had not read the job center's approval notice, which clearly showed the deduction of his insufficient salary. This also constitutes gross negligence, entitling the job center to reclaim the overpaid benefit. Benefit recipients are obligated to check official notices.
Source: SG Konstanz
2.2 – SG Berlin, Judgment of 05.09.2024 – S 53 AS 5574/23 –
Topic:
On the gross unfairness of considering a one-off donation as income – here in connection with the war in Ukraine.
The job center may not count monetary gifts for making the apartment habitable (move-in renovation, rental deposit and initial apartment furnishings) as income.
Decision:
Voluntary donation for apartment renovation – not considered income
According to the 53rd Chamber, which follows the legal opinion of the Federal Social Court (BSG), the payment of €3,500.00 was not to be considered as monthly income distributed over six months. In this exceptional case, the payment of €3,500.00 was not to be taken into account as income pursuant to Section 11a Paragraph 5 No. 1 of the German Social Code, Book II (SGB II).
The act of kindness was solely due to the refugee situation following the outbreak of the war in Ukraine and, according to the witness's own account, was based solely on her understanding of how to help in such an exceptional situation. This exceptional situation is comparable to the example of emergency aid in a disaster situation mentioned in the explanatory memorandum to the law.
Furthermore, the exemption of the donation from being counted as income appears justified here in accordance with Section 11a Paragraph 5 No. 2 of the German Social Code, Book II (SGB II).
"The plaintiff's situation has not been improved to such an extent by the witness's earmarked donation that benefits under the German Social Code, Book II (SGB II) would not be justified. This is because the basic need for 'living in dry accommodation' has simply been met."
The donation served a purpose which, in substance, corresponds to the benefits to be provided by the job center under Section 22 Paragraph 1 SGB II (necessary move-in renovation), Section 22 Paragraph 6 SGB II (rental deposit and acquisition of cooperative shares) and under Section 24 Paragraph 3 Sentence 1 No. 1 SGB II (initial furnishing of an apartment), but which was not claimed by the job center.
There is no indication here of overcompensation for an existing emergency situation that would completely preclude benefits under the German Social Code, Book II (SGB II).
The amount of the donation does not lead to any other conclusion.
Firstly, the payment of 3,500.00 euros was intended for the renovation of the apartment and corresponding pro rata housing procurement costs for three female roommates, and secondly, this purpose of the donation determines its amount, which is not comparable to a small cash gift, such as a regular pocket money payment.
Case law references:
Court (BSG), judgment of 17 July 2024 – B 7 AS 10/23 R –
Thuringian State Social Court (Thüringer Landessozialgericht), judgment of 24 August 2022 – L 4 AS 1212/21 –
Source:
www.socialgerichtsabilities.de
3. Decisions on employment promotion law (SGB III)
3.1 – LSG North Rhine-Westphalia, Judgment of 19.02.2026 – L 9 AL 65/25 –
Subject:
12-week waiting period for unemployment benefit I
Decision:
The 9th Senate affirms – as did the lower court – the ban of twelve weeks.
Lack of prospects alone does not constitute an important reason within the meaning of Section 159 of the German Social Code, Book III (SGB III).
Conduct contrary to insurance regulations exists if the unemployed person has terminated the employment relationship or has given cause for the termination of the employment relationship through conduct contrary to the employment contract and has thereby intentionally or through gross negligence brought about unemployment (waiting period in case of job abandonment; Section 159 Paragraph 1 Sentence 2 No. 1 SGB III).
The plaintiff terminated his employment relationship with the company by giving notice of termination.
He thereby caused his unemployment through gross negligence. If an employee terminates his employment, he causes his unemployment through gross negligence at least if he does not have concrete prospects of subsequent employment. The plaintiff had no such prospects.
Source:
www.socialgerichtsabilities.de
Legal note:
Court (BSG), judgment of 02.05.2012 – B 11 AL 6/11 R –
4. Decisions on social assistance (SGB XII)
4.1 – LSG Baden-Württemberg, Judgment of 21.02.2026 – L 2 SO 1092/24 –
Topic:
Use of non-owner-occupied co-ownership shares in real estate as realizable assets for social assistance purposes.
Regarding the granting of loans in the absence of efforts to realize assets; inapplicability of protected assets provisions in cases of full-time residential care
Principle:
Granting a subsidy instead of the approved loan is not an option even if a disabled adult living in a fully residential facility becomes a co-heir of a property in which a parent and the minor siblings of the benefit recipient live, because this property does not belong to the protected assets within the meaning of Section 90 Paragraph 2 No. 3 and No. 8 of the German Social Code, Book XII (SGB XII).
The lack of (immediate) realizability of the co-heir's share cannot be assumed if the plaintiff's guardian has not undertaken any efforts to realize its value.
Source:
www.socialgerichtsabilities.de
5. Decisions concerning the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – None available
6. Miscellaneous
6.1 – Imminent loss of housing as a prerequisite for housing benefit in expedited court proceedings – an article by attorney Helge Hildebrandt
A provisional grant of housing benefit by way of an administrative court interim order is only possible if, without housing benefit, the applicant would no longer be able to afford the portion of the rent that would otherwise be financed by housing benefit, and therefore, at the time the court decides, the loss of the apartment would be expected.
In the case of an interim injunction, there must be a high degree of probability that an entitlement to housing benefit actually exists, and the applicant must suffer "serious and unreasonable disadvantages" if the desired housing benefit is not granted to him provisionally very quickly.
The court considers the threatened loss of the apartment to be one of these "serious and unreasonable disadvantages".
According to the administrative court, a loss of housing is imminent if "at the time of a possible main court decision, a loss of the apartment is to be expected because the legal requirements for an extraordinary termination by the landlord are met and an eviction lawsuit is to be expected".
This criterion is unusual. Because it is practically impossible to say when a final court decision can be expected – which can sometimes take years.
If the court's interpretation is to be understood as meaning that the conditions for an extraordinary – presumably immediate – termination must be met, i.e., there must be an arrears of two months' rent and the landlord has already threatened immediate termination, then a preliminary administrative court order to grant housing benefit will regularly come too late to avert a termination and eviction lawsuit and the associated costs.
Furthermore, the conditions for a regular termination of the tenancy are likely to be met regularly – a fact overlooked by the administrative court – meaning that the living space will often no longer be able to be "saved".
In light of this flawed administrative court ruling – which misjudges the legal situation in tenancy law as well as the actual behavior of landlords – those affected are advised to apply for additional provisional citizen's allowance if necessary, until housing allowance is granted.
The administrative effort – and consequently the administrative costs – are considerable, but the jurisprudence of the administrative courts leaves those affected no other choice.
Schleswig-Holstein Administrative Court, decision of 23 December 2025 – 15 B 128/25
First published in HEMPELS 4/2026
Lawyer Helge Hildebrandt
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
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