S 54 AS 2194/08 (Social Court Hildesheim)
Decision
In the legal dispute
xxx,
plaintiff and appellant,
Legal representative:
Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
The 11th Senate of the Lower Saxony-Bremen State Social Court decided on June 9, 2011 in Celle through Judges xxx and xxx as well as xxx:
The plaintiff is granted legal aid for the appeal proceedings as well, and lawyer Adam is appointed to assist her.
Payment in installments is not ordered.
Reasons:
The plaintiff, who is currently receiving basic income support benefits under the German Social Code, Book Two (SGB II), and who is seeking a one-time grant to purchase a washing machine, is entitled to legal aid pursuant to Section 73a of the Social Courts Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), because her claim has sufficient prospects of success within the meaning of these provisions.
Sufficient prospects of success in this sense do not require that, in the necessarily prognostic assessment of the possibilities of success, a later victory already appears more likely than a defeat. Rather, for the granting of legal aid, it suffices if the action can be coherently substantiated on the basis of a provisionally defensible, debatable legal position and if, in factual terms, there is a good possibility of presenting evidence (Leitherer in Meyer-Ladewig et al., SGG, 9th ed., § 73a, para. 7a). For constitutional reasons alone, an overly lenient examination is required when assessing the prospects of success in this respect. Articles 3(1), 20(3), and 19(4) of the Basic Law (GG) mandate extensive equality between persons with and without means with regard to their respective opportunities to avail themselves of effective legal protection (Federal Constitutional Court, decision of April 26, 1988, 1 BvL 84/86, BVerfGE 78, 104). In particular, the guarantee of legal recourse under Article 19(4) GG against sovereign actions of social welfare agencies would be violated if the clarification of legally and factually relevant doubts, which can only be expected as a result of judicial proceedings, were shifted into the legal aid approval procedure by means of an overly simplistic prognosis. Legal aid may therefore only be refused on the grounds of insufficient prospects of success if success in the main proceedings is, if not impossible, then at least entirely remote (cf. Federal Constitutional Court, decision of April 7, 2000, 1 BvR 81/00, NJW 2000, 1936 ff on the granting of legal aid in cases of open legal questions).
Taking this into account, and considering the case law of the Federal Social Court (BSG) on initial furnishing within the meaning of Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II) (old version; now compare Section 24 Paragraph 3 No. 1 SGB II), which was correctly cited by both the plaintiff and the court of first instance, and the facts established by the Social Court (moving from an inner-city apartment near a laundromat to a rural apartment in the vicinity of which there is no laundromat), the plaintiff may have a claim, pursuant to Section 44 of the German Social Code, Book Ten – Administrative Procedure (SGB X), for the annulment of the decision of November 1, 2007, insofar as it granted the requested assistance only as a loan, and for the annulment of the decision of September 8, 2008, as amended by the appeal decision of November 17, 2008.
The decision is not subject to appeal by the parties involved pursuant to Section 177 of the Social Court Act (SGG).
