The parties are in dispute about the reimbursement of the expenses of placing claimant no. 2 in a crèche operated by a private parents’ initiative during the period between 8 April and 15 October 2011.

Claimant no. 1 is the mother of claimant no. 2, who was born on 8 April 2009. In early December 2009, claimant no. 1 requested that the municipality against which the action was brought as the provider of youth welfare services makes a place in a child care facility available for her daughter. Since the defendant failed to respond to the request, claimant no. 1 placed her child in the above-mentioned private child care facility as of July 2010. An application filed by claimant no. 1 in October 2010 for reimbursement of the fees for the private child care facility was unsuccessful. In letters dated 26 February and 1 March 2011, claimant no. 1 again made her claim to the defendant, to provide her daughter with a place in kindergarten.

On 22 September 2011, claimant no. 1 brought an action seeking allocation of a place in kindergarten and reimbursement of the expenses incurred since 8 April 2011 for placing the child in the private parents’ child care initiative. The defendant provided claimant no. 2 with a place in kindergarten as of 16 October 2011. As a result claimant no. 1 limited her request to the reimbursement of expenses. With the defendant’s consent, the action was also expanded to include claimant no. 2.

The Administrative Court essentially allowed the claim for reimbursement of the expenses of placing the child in the parents’ child care initiative and ordered the defendant to pay the amount of EUR 2,187.77 to the claimants.

The defendant’s appeal on points of fact and law was dismissed by the Higher Administrative Court.

The defendant pursued its case in an appeal on points of law.

9 The defendant’s appeal on points of law is without merit. The Higher Administrative Court awarded to the claimants the claim for reimbursement of expenses that is presently in dispute without this being in breach of federal law within the meaning of section 137 (1) first sentence Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung).

10 Insofar as the Higher Administrative Court makes the existence of the claim for reimbursement of expenses arising under federal state law dependent on the understanding of principles of federal law, this is subject to scrutiny by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) (1.). The legal principle assumed by the Higher Administrative Court, that subject to certain requirements a secondary claim for reimbursement of expenses exists under federal law if the primary claim for a place in child care facilities is not satisfied or is wrongly refused, and that the law of the federal state of Rhineland-Palatinate follows that principle, is unobjectionable under federal law (2.). There is no breach of federal law in other matters either (3.).

11 1. The secondary claim for reimbursement of expenses asserted by the claimants and affirmed by the Higher Administrative Court is based on the law of an individual federal state which is not subject to review in an appeal on points of law before the Federal Administrative Court (a). Still, the explanations of the Higher Administrative Court regarding the question whether there is a corresponding claim under federal law for reimbursement of the expenses for privately arranged child care are to be reviewed in the appeal on points of law (b).

12 a) The claimants’ claim for reimbursement of expenses is a secondary claim which owing to its legal nature belongs to the law of the individual federal state. The reason is that the underlying (primary) claim for the provision of a place in kindergarten is based on a statutory order under federal state law. According to section 5 (1) of the Child Care Facilities Act of the Federal State of Rhineland-Palatinate (KitaG, Kindertagesstättengesetz des Landes Rheinland-Pfalz) of 15 March 1991 (Gazette of Laws and Ordinances p. 79 (GVBl., Gesetz- und Verordnungsblatt)), as amended by the Act of 16 December 2005 (GVBl. p. 502), children between the age of two years and the date on which they start school are entitled to childhood education and care in kindergarten (first sentence), in which respect the youth welfare office has to ensure that a kindergarten place is available for each child in due time reasonably close-by (second sentence). When the first sentence of this provision took effect on 1 August 2010, it established a legal claim for children aged two years and above in the federal state of Rhineland-Palatinate, which according to the interpretation of the Higher Administrative Court which gives no cause for objection under federal law, is not subject to further requirements (e.g. gainful employment of the parents).

13 It was not possible to derive a corresponding claim for child care for children aged two years from federal law in the relevant period between April and October 2011, for which the claimants are seeking the reimbursement of their expenses. The Social Code Book VIII (SGB VIII, Sozialgesetzbuch VIII) - (article 1 of the Act of 26 June 1990 < Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1163> as promulgated on 14 December 2006 <BGBl. I p. 3134>, last amended by the Act of 10 December 2008 <BGBl. I p. 2403>) provided for an (unconditional) claim solely for children aged three years and above, namely in section 24 (1) SGB VIII (former version). (...) The revision of section 24 (3) SGB VIII (as promulgated on 11 September 2012 <BGBl. I p. 2022>), which grants a claim for children aged one year and above as of 1 August 2013, is not yet applicable in the present case.

14 If the relevant primary claim - in the present context for provision of a place in kindergarten - exists under federal state law, then as a result the secondary consequences of a breach of that claim or of failure to fulfil the claim also derive from federal state law. As a rule and in the present case, the secondary claim - aimed here at the reimbursement of expenses - has the same legal nature as the underlying claim for performance (cf. for example regarding a claim for reimbursement under public law and a claim under public law arising from agency without due authority (Geschäftsführung ohne Auftrag): BVerwG, judgment of 16 May 2000 - 4 C 4.99 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 111, 162 <172> (…) and of 6 October 1989 - 8 C 52.87 - BVerwGE 82, 350 <351>; see also decision of 3 January 1992 - 6 B 20.91 (…).

15 b) Insofar as the court of appeal interpreted and applied federal state law, as a matter of principle the Federal Administrative Court is bound by that interpretation and application (section 137 (1) VwGO, section 173 (1) VwGO in conjunction with section 560 Code of Civil Procedure (ZPO, Zivilprozessordnung)). However, the Federal Administrative Court has to examine whether the previous instance interpreted a provision of federal state law - which is not subject to review in an appeal on points of law before the Federal Administrative Court - while overlooking or in contradiction to federal law (cf. BVerwG, judgments of 18 December 1987 – 4 C 9.86 - BVerwGE 78, 347 <351> (…); of 23 August 1994 - 1 C 18.91 - BVerwGE 96, 293 <294-295> (…) and of 21 September 2005 - 6 C 16.04 (…). A case can also be reviewed in an appeal on points of law where the previous instance made the interpretation of the federal state provision which is not subject to review by the Federal Administrative Court dependent essentially on the understanding of federal law (cf. BVerwG, judgment of 6 September 1984 - 3 C 16.84 - BVerwGE 70, 64 <65> (...)). This is the case here.

16 (...)

17 2. The legal principle assumed by the Higher Administrative Court, that a secondary claim is to be derived from federal law according to which, subject to certain requirements, reimbursement of expenses of privately arranged youth welfare services can be demanded if the primary claim - here for the provision of child care - is not satisfied or is wrongly refused, gives no cause for complaint under federal law. The legal principle is based on the analogous application of section 36a (3) first sentence SGB VIII.

18 a) The Higher Administrative Court rightly held that such a legal principle of federal law was originally established in the jurisprudence of the Federal Administrative Court by way of further judicial development of the law (richterliche Rechtsfortbildung). In its jurisprudence on youth welfare, youth welfare services and social security law, the Federal Administrative Court always found that the bodies responsible for youth welfare services and social security can be obliged to bear the costs of privately arranged assistance measures that have already taken place (BVerwG, decision of 25 August 1987 - 5 B 50.87 (…). This claim for the assumption of expenses for privately arranged services under youth welfare law became of particular importance in practice, specifically in the field of integration and educational assistance (cf. BVerwG, judgment of 13 June 1991 - 5 C 27.88 (…). However, the claim was not limited to that field, but, rather, as a matter of principle covered all youth welfare services provided.

19 (...)

20 This jurisprudence by the Federal Administrative Court was rightly understood in the legal literature and by the courts of appeal to specify a liability system under the law on youth welfare services. Consequently, as a matter of principle a private arrangement resulting in a (secondary) claim for the reimbursement of expenses against the bodies responsible for public youth welfare services is only permissible if there was a (primary) claim for the services arranged, if those services were not provided in due time or were wrongly refused (hence where failure of the system (“Systemversagen”) arose during the grant of services), and if the party entitled could not be reasonably expected to delay satisfaction of its needs, owing to the urgency of those needs (...).

21 b) The opinion of the Higher Administrative Court, that the claimants’ claim was based on the liability system established in the jurisprudence of the Federal Administrative Court where a private arrangement was permissible, does not meet with agreement. This follows from the fact that the claim for reimbursement of the expenses for privately arranged services under youth welfare law was regulated by the Law on Further Development of Child and Youth Welfare of 8 September 2005 (Gesetz zur Weiterentwicklung der Kinder- und Jugendhilfe, BGBl. I p. 2729), effective as of 1 October 2005, in section 36a (3) first sentence SGB VIII. In substance, the legislator thus essentially codified the claim for the reimbursement of expenses previously established by the Federal Administrative Court in its jurisprudence. In the grounds of the draft legislation of the German government, the above-mentioned decisions of the Federal Administrative Court and literature were expressly referred to (...) and it was explained that in the interest of legal certainty and legal clarity the claim established by the Court was now to be anchored in positive law (Bundesrat Printed Paper (BR-Drs., Bundesratsdrucksache) 586/04 p. 45 and Bundestag Printed Paper (BT-Drs., Bundestagsdrucksache) 15/3676 p. 26).

22 That statutory basis now takes precedence over the liability system established by the Federal Administrative Court. Admittedly, section 36a (3) first sentence SGB VIII is not directly applicable in the present case (aa). However, the prerequisites for analogous application are given (bb). Since the further judicial development of the law (richterliche Rechtsfortbildung) going beyond the confines of legislation can only be deemed permissible if a solution cannot be found by way of interpretation or development of the law inherent to the statutes (e.g. by way of analogy) (...), then those forms of development of the law inherent to the statutes take precedence over the former form of development.

23 aa) Direct application of section 36a (3) first sentence SGB VIII to cases in which kindergarten places are privately arranged is not possible.

24 This arises from the wording of the provision. Section 36a (3) first sentence SGB VIII relates to “assistance” and thus does not cover all youth welfare services listed in section 2 (2) SGB VIII but, rather, only those constituting assistance in the sense of section 2 (2) no. 4 - 6 SGB VIII, i.e. those not constituting offers (section 2 (2) no. 1 - 3 SGB VIII. The provisions on the advancement of children in child care facilities and day care (section 22 et seq. SGB VIII) are in the latter category (section 2 (2) no. 3 SGB VIII).

25 (...)

26 bb) However, section 36a (3) first sentence SGB VIII is to be applied accordingly to services provided under youth welfare law which concern the advancement of children in child care facilities and in day care. The prerequisites for reasoning by analogy are satisfied.

27 Each form of further judicial development of the law (richterliche Rechtsfortbildung) that is inherent to the statutes - in this case: analogy - presupposes a gap in the statutory provisions in the sense that the law is unintentionally incomplete (cf. BVerwG, judgments of 18 April 2013 - 5 C 18.12 (…); of 15 November 2012 - 3 C 12.12 (…) and of 20 May 1999 - B 3 C 3.98 (…). Where the legislator has made an unequivocal decision, the courts may not modify that decision or replace it with a judicative solution founded on their own legal policy concepts. The question whether or not there is a gap in the statutory provisions has to be judged on the basis of whether the cases embraced by the legislator’s regulative concept have in fact been taken into account in the statutory provisions. A gap will be affirmed if the wording of the provision does not cover all cases intended to be included according to the meaning and purpose of the provision (cf. BVerwG, judgment of 18 April 2013 - 5 C 18.12 - para. 22 with further references).

28 (1) The Social Code Book VIII has such a requisite gap in its provisions. The factual constellation at issue, whether and which legal consequences arise under federal law where a claim for the provision of a place in child care facilities is not satisfied and that service is privately arranged, is not covered directly by section 36a (3) first sentence SGB VIII, or by any other statutory provision of child and youth welfare law.

29-30 (…)

31 (…)

32 (b) This also applies to the statutory claims for reimbursement of expenses for privately arranged services where the statutory health insurance system fails (section 13 (3) SGB V) and in the law on severely disabled persons (section 15 (1) second sentence of the Social Code Book IX (SGB IX, Sozialgesetzbuch IX). These claims concern other areas of regulation and do not provide any indication that they are relevant to the field of youth welfare law.

33 (c) A gap in statutory provisions cannot be denied because - as argued by the defendant - the law on state liability provides for a general liability system such as the claim for remedial action and the liability of public authorities. From the existence of a claim based on the liability of public authorities (article 34 of the Basic Law (GG, Grundgesetz) in conjunction with section 839 of the German Civil Code (BGB, Bürgerliches Gesetzbuch)) which presupposes an unlawful and faulty behaviour of an official and entails not just the reimbursement of expenses but further damages, cannot - due to these differences - be derived an answer to the question whether there is a gap in statutory provisions in view of a secondary claim irrespective of fault and linked to failure of the system to provide a place in child care facilities. Likewise, the existence of unwritten, general liability systems such as the claim for remedial action does not answer the question whether there are gaps in the law in a certain area - e.g. here in the area of failure to satisfy claims under youth welfare law for the advancement of children in facilities for daily child care.

34 (2) The gap in the legal provisions referred to is also inadvertent. Contrary to the view adopted by the defendant, section 36a (3) SGB VIII is not to be understood as an exhaustive, specific provision for youth welfare law as a whole, which excludes expansion of the claim for reimbursement to services provided under the law on child and youth welfare that are not directly covered by the provision. Rather, what the legislator intended was to apply the reimbursement claim to cases of failure to satisfy the claim for the advancement of children in child care facilities and day care as well. This can be derived particularly from the legislator’s intentions as expressed in the preparatory documents.

35 The aim of the legislator in drawing up section 36a (3) SGB VIII was to codify the claim for reimbursement of expenses in case of privately arranged services under youth welfare law established by the Federal Administrative Court in its jurisprudence. With the claim for assumption of the requisite expenses, the legislator did not aim to place the eligible persons at a disadvantage as compared with the previous legal situation (BVerwG, judgment of 1 March 2012 - 5 C 12.11 - BVerwGE 142, 115 (…). Since - as mentioned above - the judge-made liability system also encompassed the consequences under secondary law of an unsatisfied (primary) claim for a place in child care facilities, section 36a (3) SGB VIII falls short of the legislator’s intentions.

36 (3) The inadvertent gap is to be closed by analogous application of section 36a (3) first sentence SGB VIII. The legal consequence of the claim for the reimbursement of expenses is transferrable to the factual constellation currently under scrutiny because the factual situation and the interests are comparable to the cases regulated by section 36a SGB VIII.

37 A significant characteristic of the cases encompassed by section 36a (3) first sentence SGB VIII is that a statutory primary claim consisting not of mere pecuniary benefit but of material performance and services (namely in particular the claim for integration assistance and parenting assistance) is not satisfied, and that those who arrange the urgent services themselves because the provision was wrongly refused by the provider of youth welfare services or the provider failed to decide in due time, should not be placed at a disadvantage vis-à-vis those whose request for services was satisfied in due time (cf. judgment of 1 March 2012, see above, para. 23). Since the claim (e.g. for integration assistance or parenting assistance) can no longer be satisfied when it elapses, the party concerned prevents the loss of the service by making private arrangements. It would be contrary to the statutory grant of the claim if the party seeking aid were to relinquish his or her claim simply because he or she did not receive the aid to which he entitled in due time from the relevant provider (cf. the jurisprudence of this Court on social security benefit law: judgment of 23 June 1994 - 5 C 26.92 - BVerwGE 96, 152 <155> (…).

38 The factual situation and the interests involved where the provider of youth welfare fails to satisfy a claim for child care in child care facilities, or fails to do so in due time, is similar and comparable to the above situation as regards the values involved. The place in child care facilities not granted for the period sought - despite a claim existing - cannot be postponed, but, rather, remains irreversibly unfulfilled for that period. The claim for allocation of an available place becomes obsolete through the passing of time (...). Insofar as the primary claim for a place in child care facilities cannot otherwise be enforced, the party affected has to arrange child care privately in order to prevent the claim from being lost, which enables the party to satisfy the need and at least to obtain reimbursement of the necessary expenses incurred.

39 Owing to the similar factual situation and interests involved, the conclusion arrived at by analogy can also be expanded to cover all constituent element that section 36a (3) first sentence SGB VIII attaches to the legal consequence of the claim for reimbursement of expenses. This applies especially to the requirement that the party entitled to services must have notified the provider of youth welfare services about the need prior to making private arrangements (no. 1). The significance of this requirement and its necessity to consider it a prerequisite for a corresponding claim for reimbursement of expenses arises from the logical connection between section 36a (3) first sentence SGB VIII and the first paragraph of that provision. The statutory guiding principle of section 36a (3) first sentence SGB VIII is the responsibility of the youth welfare service provider to control matters. According to this provision, as a matter of principle the provider of public youth welfare services only has to bear the costs of assistance if it is provided on the basis of the its decision in accordance with the support plan while taking account of the right to request and the right to choose. The idea behind the provision is that it is inconsistent with the statutory responsibility imposed on the provider of youth welfare services to act merely as a payment office and not providing services. Youth welfare law is aimed at assistance provided in a spirit of partnership while respecting the autonomy of families, and at cooperative educational decision-making processes. It is only where parents or the recipients of assistance involve the provider of youth welfare services in the decision-making processes from the outset that those providers can meet their overall responsibility for fulfilment of the statutory requirements under section 36a (1), section 79 (1) SGB VIII and for planning under section 80 (1) no. 2 and 3 of the same Code (BVerwG. judgment of 18 October 2012 - 5 C 21.11 - BVerwGE 145, 1 (…); decision of 22 May 2008 - BVerwG 5 B 130.07 (…)).

40 The idea that prior notification of the provider of youth welfare services is required before a need can be satisfied by private arrangements also applies to the claims for places in child care facilities. (...)

41 3. The judgment contested gives no other cause for complaint in the appeal on points of law.

42-49 50 c) Finally, no violation of federal law arises from a principle - which the defendant and the Representative of Federal Interests at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) refer to - that the protection of primary rights before the administrative courts takes precedence. Regarding this, they argued that a claim for the reimbursement of expenses was excluded in the present case because the claimants had failed to assert the claim for provision of a place in child care facilities by way of a request for a temporary order pursuant to section 123 VwGO.

51 Whether an application for a temporary relief in the administrative courts constitutes a prerequisite for the secondary claim for reimbursement of expenses under federal state law, and whether such potential prerequisite has been met in the specific case, is a question of the interpretation and application of federal state law that as a matter of principle is not subject to scrutiny in an appeal on points of law before the Federal Administrative Court. It is also doubtful whether, within the context of the claim for reimbursement of expenses under section 36a (3) first sentence SGB VIII it is necessary to apply for a temporary relief first. A requirement for an application for temporary relief is not set out in the wording of section 36a (3) first sentence no. 3 SGB VIII which merely requires that a further delay in satisfying the need through privately arranged services must not have been bearable, while making a distinction between satisfaction of the need up to the time when the provider of public youth welfare services makes a decision on the grant of the services (lit. a) and satisfaction of the need by the time a decision is made on a remedy following the unjust refusal to provide services (lit. b).

52 However, final clarification of this question is not necessary since the view adopted by the Higher Administrative Court that a requirement of seeking temporary relief may only be established if the party concerned can be reasonably expected to do so, gives no cause for complaint under federal law. Even as regards a claim based on liability of a public authority where the fundamental precedence of primary legal protection granted by the courts is set out unequivocally in section 839 (3) BGB, primary legal protection only has to be claimed if it can be expected to provide relief in due time (cf. judgment of the Federal Court of Justice (Bundesgerichtshof) of 26 January 1995 - III ZR 71/93 - Rulings of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofs in Zivilsachen) 128, 346 <358>; see also BVerwG, judgment of 28 May 1998 - 2 C 29.97 - BVerwGE 107, 29 <32-33> (…). However, this was not the case according to the findings of the Higher Administrative Court that were not contested by a claim of procedural error and are thus binding for the court deciding on the appeal on points of law. As a result, no relief would have had to be expected if the persons having parental care had attempted from the outset to enforce their primary claim before the administrative courts. (…)