Need in the legal sense
Concept and general definition
The term need refers, in a legal context, to a situation in which a person is unable to provide for their necessary subsistence by their own means and efforts. Need is a central term in German social law and family maintenance law, but is also applied in other areas such as procedural law and criminal law. The exact definition and requirements of need depend on the respective area of law and the specific legal context.
Legal basis of need
Need in social law
In social law, the primary regulation of need is found in Book Twelve of the Social Code (SGB XII). The term is especially significant here in relation to the granting of social assistance:
- § 19 SGB XII stipulates that social assistance is only granted to those who are unable to secure their necessary subsistence, in whole or in part, by their own means and efforts, especially from income and assets.
- Need as a requirement for entitlement: Social benefits are only granted when need is present. In this process, both income and assets are thoroughly examined to determine whether they can be taken into account.
Term in SGB II
In the law on basic provision for job seekers according to the Second Book of the Social Code (SGB II, colloquially ‘Hartz IV’), need—specifically ‘need for assistance’ pursuant to § 9 SGB II—is a central entitlement requirement. Need for assistance is present if a person cannot cover their living expenses or necessary health and nursing insurance contributions, not at all, not sufficiently, and not even with help from others, particularly relatives or other social benefit providers.
Need in family maintenance law
In family maintenance law (§§ 1361, 1601 ff. BGB), need is a fundamental prerequisite for a maintenance claim. A person is considered needy if they are unable to meet their living needs from their own income and assets.
- Responsibility for oneself and need: As a rule, every person entitled to maintenance is initially required to provide for themselves (the ‘principle of personal responsibility’).
- Assessment of need: Before a person liable for maintenance can be called upon, it must be checked whether sufficient resources are in fact not available. The inclusion of income and assets is mandatory, to the extent that it is reasonable.
Relevance of personal responsibility and reasonableness
The assessment of need is closely linked to the principle of reasonableness: In certain circumstances, a person entitled to maintenance may be reasonably required to liquidate assets or take up employment before claiming maintenance.
Need in procedural law
Within the framework of legal aid (Code of Civil Procedure, §§ 114 ff. ZPO), advice assistance (BerHG), and similar regulations, need is a prerequisite for the court and legal fees to be covered by the state treasury.
- Standard: Legal aid is granted to those who, based on their personal and economic circumstances, are unable to bear the costs of litigation, can only do so in part, or only in installments.
- Assessment of need: The relevant courts review income, assets, and ongoing financial obligations as part of the application process.
Need in criminal law
Need also plays a role in criminal law, particularly with regard to court-appointed defense (§ 140 ff. StPO) and decisions on legal costs (§ 465 para. 2 StPO). In such cases, costs can be imposed on the state if a person is unable to pay for the proceedings.
Scope of the assessment of need
Establishing need
The assessment of need is always carried out on a case-by-case basis and requires full disclosure of financial circumstances. Generally, a written statement of income and assets must be submitted and supported by appropriate documentation.
Relevant criteria
- Income: All regular and one-off receipts (e.g., salary/wages, pensions, maintenance payments) are considered.
- Assets: It is checked whether available assets exist that can and must be used to meet the need.
- Requirement: Need is generally determined based on the applicable standard rates (e.g., standard rates according to SGB II or SGB XII).
- Family and household situation: For shared households, it is regularly checked to what extent mutual support obligations exist (e.g., benefit units in social law).
Special situations
Hardship provisions and exempt assets
In certain cases, need may exist even when assets are available, if its liquidation would constitute unreasonable hardship in the individual case (§ 90 para. 3 SGB XII). The so-called exempt assets are protected from liquidation and include, for example, reasonable household goods, necessary retirement funds, or reasonable owner-occupied homes.
Need and restitution claims
If need is fraudulently claimed, or information is withheld, such behavior may give rise to criminal or civil liability. In the context of overpayments or repayment demands for benefits, providing incorrect information about need can have serious consequences.
Significance of need in other areas of law
Even outside the above-mentioned areas, need is occasionally used as a legal term, such as in the law of grants, foundations law, or in the awarding of scholarships, provided that benefits are tied to the criterion of need.
Case law on need
The courts have repeatedly interpreted and further defined the term need. In particular, specific issues such as the reasonableness of liquidating assets or taking up employment, the extent to which income is to be included, the consideration of third-party maintenance payments, and the definition of necessary subsistence are regularly clarified by the courts.
Summary assessment
Need is a complex, context-dependent term in German law, which must be assessed in accordance with the requirements of the respective law. It serves as a central criterion for granting social benefits, maintenance claims, and state support in various types of proceedings. The assessment of need requires detailed analysis of financial circumstances and a case-by-case evaluation, drawing on numerous statutory provisions and court decisions.
Frequently Asked Questions
What is legally considered proof of need?
In legal contexts, proof of need is usually provided by disclosing personal and financial circumstances. This typically includes current proof of income (e.g., pay slips, pension notices), bank statements from recent months, proof of existing assets (e.g., savings books, shares), information on dependents entitled to maintenance, as well as on existing liabilities (e.g., rental agreements, loan agreements). Depending on the legal field, the submission of a ‘declaration form on personal and financial circumstances’ may also be required, particularly in applications for legal aid or advice assistance. The need must always be explained in a comprehensible manner and substantiated with appropriate documents upon request. Incomplete or incorrect information may result in the rejection of the application or, in the worst case, criminal prosecution for fraud.
What role does need play in social law?
In social law, need is a central requirement for a variety of state benefits. In particular, the Social Code (SGB) II (unemployment benefit II/’Hartz IV’), SGB XII (social assistance), BAföG, housing benefit law, and the Asylum Seekers’ Benefits Act grant support only to those who cannot secure their own livelihood and, if applicable, that of their family from their own resources. The assessment of need involves the review of the income and assets of all household members, with partially different allowances or rules for inclusion. Assistance is granted and calculated only after need has been established.
In which branches of the courts and in which procedures is need assessed?
The assessment of need is relevant in various areas of law. In civil law, it is particularly reviewed when granting legal aid (§§ 114 ff. ZPO) and advice assistance (§ 1 BerHG). In family law, need is decisive for maintenance claims (§ 1602 BGB). In administrative law, it plays a role in awarding social benefits. Need is also reviewed in tax law (e.g., remission of taxes) and student law (BAföG). The standards for review are strictly determined by the relevant procedural and substantive law.
How long is a finding of need valid?
A finding of need is typically only valid for the period that has been reviewed or for the respective commencement of proceedings. Changes in economic or personal circumstances must be reported promptly, since benefit entitlements or assistance approvals are regularly time-limited and re-examined. In social law, need is reviewed at regular intervals, e.g., every six or twelve months. In the context of legal aid, the court may require a review for up to four years after the end of the proceedings.
What are the consequences of making abusive or fraudulent claims of need?
Intentionally or negligently providing false information about one’s own need has significant legal consequences. In addition to the possible recovery of benefits received unlawfully, criminal consequences may also arise, especially in cases of suspected fraud (§ 263 StGB) or subsidy fraud (§ 264 StGB). There is also a risk that legal aid or social benefits may be revoked, and future claims forfeited. Civil claims for damages may also be asserted if the provider or third parties are harmed as a result.
Are there asset allowances when establishing need?
Yes, almost all legal frameworks that recognize need as a requirement for entitlement contain asset allowances. In social assistance law (SGB XII) and for unemployment benefit II (SGB II), there are specific allowances for cash assets, retirement provision, and necessary household items. There are also allowances for legal aid according to §§ 115 ff. ZPO, below which assets do not have to be liquidated. The amount and type of allowances are determined by law and can change due to alterations in life circumstances or legislative measures.
