in the proceedings for the granting of interim legal protection
xxx,
applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
respondent,
The Hildesheim Social Court - 36th Chamber - decided on June 20, 2011 through the chairman, Judge xxx:
The respondent must reimburse the applicant for the necessary out-of-court costs.
Reasons:
I.
After the change to a disputed approval decision in the context of benefits under the Second Book of the Social Security Code (SGB II), the only issue still in dispute between those involved is the question of the payment of costs.
By decision dated March 16, 2010, the applicant was granted benefits according to SGB II in the amount of EUR 647.35 per month for the period April to September 2010, taking into account a specified part-time job at company xxx with a monthly income of approximately EUR 100.00 .
In a letter dated April 30, 2010, the main customs office in Braunschweig announced that the evaluation there of documents from the company xxx for the period February 2007 to October 2009 had temporarily revealed two salary accounts maintained for the applicant. With a change decision dated May 4, 2010, the respondent then reduced the applicant's benefit approval for the period June to September 2010 to EUR 407.35 per month, assuming a monthly earned income of EUR 400.00 less allowances of EUR 160.00. In a letter dated the same day, the plaintiff was asked to submit complete pay slips from October 2006, with reference to the findings of the main customs office in Braunschweig.
An objection was lodged against the reduced benefit decision dated May 4, 2010. The applicant does not earn a monthly income of EUR 400.00. The possible existence of two salary accounts does not change this. After filing an objection on May 18, 2010, the respondent received pay statements for April and May 2010 on May 25, 2010 and June 15, 2010 with payout amounts of EUR 63.17 and EUR 130.67.
In a letter dated June 16, 2010, the respondent reminded him to submit the complete pay slips from October 2006. Without the complete documents, the amount of income cannot be determined.
With a partial remedy and objection decision dated June 28, 2010, the benefit approval for the period June to September 2010 was set at EUR 477.00 per month, assuming a monthly earned income of EUR 300.00 less allowances of EUR 140.00. This income level results from the extrapolated apparent income for the year 2009 in the amount of EUR 309.83 per month.
In a letter dated July 11, 2010, an application for interim legal protection was submitted to the Hildesheim Social Court. The reduction in performance is unlawful. The applicant only earns a maximum monthly income of around EUR 130.00. Attached were payslips for January, February and March 2010 with payout amounts of EUR 24.64 twice and EUR 130.49 once.
In a letter dated July 12, 2010, the applicant continued to send payslips for 2009 directly to the respondent.
In a letter dated July 15, 2010, the respondent announced that it would examine the matter on the basis of the newly submitted documents. We would also like to clarify whether the second payroll account has been closed in the meantime.
In the applicant's letter dated July 16, 2010, a pay statement for June 2010 was submitted with a payout amount of EUR 25.77 as well as a statement from the company xxx, according to which only one payroll account would be maintained from December 2009.
In a letter dated July 26, 2010, the respondent sent a change notice dated July 22, 2010, which repealed the notice of May 4, 2010 and granted the applicant benefits under SGB II in the amount of EUR 647.00 per month for the period June until September 2010.
In a letter dated July 27, 2010, the applicant declared the legal dispute settled with reference to the remedy that had been provided and requested accordingly:
order the respondent to pay the costs of the proceedings.
The respondent refuses to reimburse costs. The applicant had already been asked to submit further documents in a letter dated May 4, 2010, but had not complied with this request. Documents were only submitted in a letter dated July 12, 2010. It was only in a letter dated July 16, 20109 that further information about the second payroll account was provided. The procedure could have been avoided if the information had been submitted in a timely manner.
For further details of the facts and status of the dispute, reference is made to the content of the court file and the performance file.
II.
Pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG), the court must, upon application, decide by order whether and to what extent the parties involved have to reimburse each other for costs if the proceedings - as here - are ended other than through a judgment. This basic cost decision is at the dutiful discretion of the court, taking into account the current state of affairs and the dispute, in particular the prospects of success (Meyer-Ladewig/Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, 8th edition, § 193 Rn 13 mwN). Further criteria for the cost decision are, above all, the outcome of the process, the circumstances that led to the filing of the lawsuit, and the circumstances that led to the settlement of the legal dispute (see Niesel, The Social Court Process, 4th edition, Rns 610 and 613 with further references ).
In this case, the exercise of the discretion granted to the court leads to the result that the respondent must reimburse the applicant for the necessary out-of-court costs. The procedure ended with the disputed change decision of May 4, 2010 being revoked after the application was submitted and the application subsequently being withdrawn. Through the remedy, the respondent has voluntarily placed himself in the position of the losing party and therefore has to bear the costs of the legal dispute. There are no indications that could suggest a different distribution of costs. In particular, as an examination of the applicant's salary documents subsequently revealed, the disputed change notice of May 4, 2010 was wrong from the start. A partial cancellation of the benefit approval according to Section 45 SGB X was therefore unlawful. Due to the fact that benefits had already been approved with the decision of March 16, 2010, the respondent did not have the legal possibility of a partial cancellation for the period of time during which the investigation was deemed necessary. Rather, these complete investigations should have preceded the partial cancellation with the decision of May 4, 2010, including the request for specific documents from the applicant. Regardless of the question of any late submission of documents, a cancellation of benefits based on this could at best have been carried out via Section 66 SGB I. This did not happen. In particular, before the partial cancellation there was neither a request for cooperation nor a related deadline set. The risk of a negative result for the respondent from the subsequent investigations therefore also falls entirely on the respondent.
The costs decision is incontestable in accordance with Section 172 Paragraph 3 No. 3 SGG.
