In the legal dispute
xxx
xxx
Plaintiffs,
legal representatives:
for 1-2: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
xxx
Defendant,
The Social Court of Hildesheim – 36th Chamber –
decided on January 19, 2011:
The defendant must reimburse the plaintiffs for their necessary extrajudicial costs.
Reasons:
I.
Following the review decision regarding benefits under the Second Book of the Social Code (SGB II) and the declaration of settlement regarding an action for failure to act, the only remaining point of contention between the parties is the question of the allocation of costs.
The plaintiffs' attorney, by letter dated January 21, 2010, requested a review of the grant notice of June 19, 2008, for the period from August 2008 to February 2009, concerning the costs for accommodation and heating. By pleading dated July 27, 2010, the plaintiffs' attorney filed an action for failure to act and requested that the defendant be ordered to decide on the review request of January 21, 2010. Despite a deadline being set and a reminder being sent, the defendant initially failed to respond to the service of the complaint on August 2, 2010, for a period of more than two months. By pleading dated October 7, 2010, the plaintiffs declared the main issue of the legal dispute settled, referring to a review decision issued on October 6, 2010, and, citing the defendant's delayed decision, requested..
to impose the costs of the proceedings on the defendant.
The defendant did not acknowledge any liability for costs and refused to reimburse the plaintiffs. The defendant argued that filing an action for failure to act six days after the expiry of the grace period would be an abuse of process. He stated that there were numerous applications and appeals from the plaintiffs to process.
For further details of the facts and the legal arguments, reference is made to the contents of the court file, which was available and formed the basis of the decision.
Pursuant to Section 193 Paragraph 1 of the Social Courts Act (SGG), the court must decide by order, upon application, whether and to what extent the parties are to reimburse each other's costs if the proceedings – as in this case – are concluded other than by judgment. The basic decision on costs, taking into account the principle of uniformity in cost decisions, encompasses all costs incurred in the main proceedings and in the preliminary proceedings pursuant to Section 78 SGG (see: Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, Section 193, marginal note 2) and is at the court's discretion, whereby, taking into account the facts and the state of the case, particular consideration must be given to the success of the action (see: Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, Section 193, marginal notes 12 et seq.). Further criteria for the decision on costs may include all circumstances of the individual case, including consideration of the causation principle and any changes in the factual and legal situation during the course of the proceedings (cf.: Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, § 193, Rn 12 ff).
The exercise of the court's discretion leads to the conclusion that the defendant must reimburse the plaintiffs for their necessary extrajudicial costs. The proceedings ended with a declaration of settlement after the application had been decided. At the time of this decision, the action for failure to act was admissible and well-founded pursuant to Section 88 Paragraph 1 of the Social Court Act (SGG), because the six-month decision period had expired. Furthermore, no sufficient reason for the delayed decision is apparent. Potential workload overloads and staff shortages do not constitute such a reason (see Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, Section 88, marginal note 7b). The defendant has neither alleged an exceptional situation of short-term overload, e.g., due to legislative changes or temporary organizational peculiarities, nor is such a special situation evident from the circumstances. In view of the explicit and unambiguous statutory deadline, there is no general obligation to send a reminder after the deadline for a decision has expired and before filing an action for failure to act, nor to set a further deadline. Therefore, the mere fact that an action was filed six days after the deadline expired cannot be construed as an abuse of process. Whether a different rule might apply in the case of a short delay, with a statement of reasons and a binding decision date, need not be decided here. The defendant initially neither alleged nor submitted such an interim notification, possibly combined with a request for silent waiting. Furthermore, even after the deadline expired and the action was filed, the defendant allowed a further period of more than two months to pass without any reaction or comment before issuing a decision or responding to the court's notification of the complaint. Regardless of whether this conduct is compatible with the fundamental obligation of an authority to uphold the law, there is therefore no indication whatsoever of any potentially abusive conduct on the part of the plaintiffs.
This decision is unappealable pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG) in the version applicable from April 1, 2008.
