Higher Social Court (LSG) - Berlin-Brandenburg, Decision as of 6/30/2011
File number L 25 AS 535/11B

Summary

The Higher Social Court ruled in summary proceedings that a Bulgarian woman and her son were entitled to monthly benefits and to a loan for paying off accumulated rent payments.

In its review of a claim to benefits pursuant to the second German Social Security Code (SGB II), the court left the issue open whether benefits could be denied to the Bulgarian applicant on the basis of section 7 (1) sent. 2 no. 2 SGB II. Section 7 (1) sent. 2 no. 2 SGB II operates to exclude benefits to those applicants whose right of residence derives solely from job-seeking purposes. With reference to other judicial decisions, the court considered it doubtful that such an exclusion of benefits could apply to EU citizens at all. Such a question was, however, too extensive for summary proceedings The court referred this issue to the main proceedings. Because these summary proceedings concerned the granting of benefits to secure basic living expenses, the court reviewed the consequences of denying the benefits and came to the conclusion that the applicant’s actual subsistence would be endangered if her application for interim benefits were denied. The court held that this had to be given precedence over the financial interests of the administering public body.
In addition to the monthly benefits for the woman and her son, the court also ordered that she be given a loan to pay off her back rent payments in order to avoid homelessness.

Decision in full text: