Decision
In the appeal proceedings
xxx,
Plaintiff and Appellant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
The 9th Senate of the State Social Court of Lower Saxony-Bremen decided on January 5, 2012 in Celle through its judges xxx – Chairman –, xxx and xxx:
The appeal is granted, the decision of the Hildesheim Social Court of November 2, 2011, rejecting legal aid, and legal aid is granted to the appellant without the obligation to make installment payments for the legal proceedings, with the appointment of lawyer Adam from Göttingen.
Costs are non-refundable.
Reasons
I.
The parties are mainly in dispute over benefits under the Second Book of the Social Code — Basic Income Support for Job Seekers — (SGB II).
By decision dated May 11, 2009, the mother of the plaintiff and appellant, born on xxx, was granted benefits under the German Social Code, Book II (SGB II) (p. 12 of the court file). She, represented by her legal counsel, filed an objection to this decision by letter dated May 14, 2009, and simultaneously requested "the granting of initial equipment for pregnant women and then the birth." (p. 24 of the court file).
By decision dated 22 May 2009, the defendant and respondent granted the mother of the appellant a one-time payment of 130.00 euros for initial baby equipment (p. 27 GA).
The complainant's mother filed an objection by letter dated May 26, 2009, arguing, among other things, that the granted lump sum of €130.00 was too low. She further argued that there was no justification for granting a lump sum and no explanation of what services were included in it (p. 30 of the court file).
By decision on objection dated June 5, 2009, the appellant rejected the objection to the decision of May 22, 2009 as unfounded (p. 33 of the court file). The amount of the fixed lump sum for the initial equipment of an infant was based on current prices on the second-hand market and had been determined and set on the basis of careful research.
The complainant's mother filed a lawsuit against this decision with the Hildesheim Social Court (SG) on June 11, 2009. The SG has since amended the case heading and listed the complainant, legally represented by her mother, as the plaintiff/appellant.
In support of her claim, the complainant stated that the term "initial equipment for newborns" is not limited to clothing, but also includes, for example, services for a crib including slatted frame, mattress and bedding, a stroller, a changing table, a baby bathtub and a playpen.
The respondent replied in writing on July 31, 2009, that the application for initial baby equipment had not yet been fully decided. Only a lump sum for clothing had been granted so far. The letter from the applicant's lawyer dated May 14, 2009, did not constitute a "full application for initial baby equipment." Furthermore, the granting of winter clothing for the applicant, born on June 5, 2009, was not an option, but rather had to be covered by the clothing allowance included in the standard benefit rate.
Following the Social Court's (SG) notification in its court letter of June 1, 2010, regarding which specific items of equipment had already been purchased, the appellant submitted a list of items already purchased at a total price of 207.11 euros (p. 84 of the court file).
In a further letter dated June 1, 2010, the Social Court requested the respondent to explain which initial equipment items were included in the lump sum of €130.00 and why this amount was considered sufficient for an infant's initial equipment. Subsequently, in a letter dated August 19, 2010, the respondent itemized the lump sum of €130.00 and specified which items had been included, indicating their sources of purchase (p. 74 of the court file).
A settlement proposed by the Social Court (p. 89 of the court file), according to which the respondent would grant the appellant a further one-time payment of €40.00 for initial infant equipment, amending the decision of May 22, 2009, as modified by the appeal decision of June 5, 2009, because items such as baby socks, baby gloves, and so-called burp cloths had not been included in the initial infant equipment listed in the letter of August 19, 2010, was rejected by the respondent in a letter dated June 10, 2009 (p. 91 of the court file).
By decision of 2 November 2011, the Social Court rejected the appellant's application to be granted legal aid (PKH) for the conduct of the first instance legal proceedings with the appointment of lawyer Adam from Göttingen.
The appellant filed an appeal on November 10, 2011, elaborating on her previous arguments and asserting that the lump sum granted by the respondent was too low.
II.
The appeal of the appellants, which is admissible under Sections 172 and 173 of the Social Courts Act (SGG), is well-founded.
The Social Court wrongly rejected the application for legal aid. There are sufficient prospects of success for this procedure (§ 73a Social Court Act in conjunction with § 114 Code of Civil Procedure).
According to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Sentence 1 of the Code of Civil Procedure (ZPO), a party who, according to their personal and economic circumstances, cannot afford the costs of litigation, can only afford them in part or in installments, receives legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous.
For this purpose, the prospects of success of a lawsuit are not sufficient only when, in the necessarily prognostic assessment of the possibilities of success, a later victory already appears more likely than a defeat. For constitutional reasons alone, an overly lenient examination is required when assessing the prospects of success; because Article 3 Paragraph 1, Article 20 Paragraph 3, and Article 19 Paragraph 4 of the Basic Law (GG) mandate a far-reaching equality between persons with and without means with regard to their respective opportunities to avail themselves of effective legal protection (Federal Constitutional Court – BVerfG Decision of April 26, 1988 – Case No.: 1 BvL 84/86 –, BVerfGE 78, 104). In particular, the guarantee of legal recourse under Article 14 Paragraph 4 of the Basic Law (GG) against sovereign actions of social security institutions is violated if legally and factually relevant doubts, which can only be expected as a result of court proceedings, are prematurely addressed in the legal aid (PKH) application process by means of an overly simplistic prognosis of the outcome. Therefore, legal aid may only be refused on the grounds of insufficient prospects of success if success on the merits is, if not entirely impossible, then at least completely improbable (Federal Constitutional Court, decision of April 7, 2000 – 1 BvR 81/00 –, NJW 2000, 1936 et seq., regarding the granting of legal aid in cases of unresolved legal issues). 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, or if, within the scope of the court's duty to clarify the facts, further investigations or taking of evidence relevant to the decision are still required (cf. in detail Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th edition 2008, § 73a para. 7a as well as the Senate decisions of February 2, 2011 – L 9 AS 1209/10 B – and December 2, 2008 – L 9 B 299/08 AS -).
Taking these requirements into account, the lawsuit offers sufficient prospects of success.
According to Section 23 Paragraph 3 Sentence 1 Number 2 of the German Social Code, Book II (SGB II), in the version applicable until December 31, 2010 (old version), benefits for initial clothing and initial equipment for pregnancy and childbirth are not included in the standard benefit. These benefits can be provided as benefits in kind or cash benefits, including lump sums, in accordance with Section 23 Paragraph 3 Sentence 4 of the old version of the SGB II. When calculating the lump sums, suitable information about the necessary expenses and verifiable empirical data must be taken into account, as per Sentence 5 of the provision. Lump sums for initial clothing must be calculated so that the person in need can dress themselves in a dignified manner with the amount granted. Furthermore, the amount of the lump sums must be verifiable based on sources of supply, price lists, etc. (see Federal Social Court, Judgment of April 13, 2011 – B 14 AS 53/10 R –). The initial equipment allowance for pregnancy and childbirth includes not only necessary clothing but also a complete set of baby equipment (see Münder in: LPK-SGB II, 4th edition 2011, § 24, para. 34). The initial or basic clothing allowance must be sufficient to allow the recipient to change their clothes several times a week and includes both summer and winter clothing (see Münder, in: LPK-SGB II, 4th edition 2011, § 24, para. 33). The necessary initial equipment for infants also includes essential household items such as a playpen, highchair, stroller with accessories, mattress, bathtub (see Berlin-Brandenburg State Social Court, decision of March 3, 2006 — L 10 B 106/06 AS ER; Braunschweig Social Court, decision of March 7, 2005 — S 18 AS 65/05 ER; Hamburg Social Court, decision of March 23, 2005 — S 57 AS 125/05 ER; Speyer Social Court, decision of May 25, 2005 — S 5 AS 53/05; Lüneburg Social Court, decision of June 20, 2005 — S 25 AS 231/05 ER), and a baby carrier (see Lüneburg Social Court, decision of April 22, 2005 — S 30 AS 107/05 ER). If proper and safe bathing and diaper changing of a small child is not otherwise possible, the necessary equipment for a baby in diaper changing also includes a bath-changing unit (see Social Court Lüneburg, decision of April 22, 2005 - 3 30 AS 107/05 ER). The need for beds, chairs, etc., that arises after birth as the child grows according to its size, is (for the first child) to be covered as part of the initial furnishings for the home. Under certain circumstances, items already owned by older siblings can be used (see Social Court Bremen, decision of February 27, 2009 - S 23 AS 255/09 ER).
Taking these considerations into account, success in the legal proceedings is not entirely out of the question. The respondent himself admitted in his written submission of July 31, 2009, that he had not yet fully decided on the application for a baby's initial equipment allowance with the decision of May 22, 2009, as amended by the appeal decision of June 5, 2009, and had thus far only granted a lump sum for clothing. Therefore, as stated above, the appellant's claim under Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book II (SGB II, old version) has not yet been fulfilled. A corresponding decision yet to be issued would, pursuant to Section 96 Paragraph 1 of the German Social Courts Act (SGG), be the subject of the legal proceedings. Furthermore, it must be considered that the respondent has not yet included the need for winter clothing in his lump sum and – as the Social Court stated in its letter of May 25, 2011 – baby socks, mittens, and burp cloths, for example, may also need to be taken into account.
Furthermore, the appellant, both in her written application of May 14, 2009, to the respondent and in her statement of claim, expressly requested not only initial equipment allowances for childbirth but also for pregnancy. The respondent has evidently not yet ruled on this point either. The respondent's assertion that the letter from her attorney dated May 14, 2009, does not contain a comprehensive application regarding initial baby equipment is incomprehensible to the Senate, as the application does not require interpretation. The wording of the application itself makes it clear that it expressly requests "the granting of initial equipment for pregnant women and then for the birth." With this application, the appellant's attorney evidently based his argument on the wording of Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book II (SGB II aF), according to which benefits for initial equipment for pregnancy and childbirth are not included in the standard benefit.
Insofar as the Social Court (SG) stated in its contested decision of November 2, 2011, that the list of initial equipment needs submitted by the appellant in her brief of January 14, 2011, was insufficient, further investigations must be carried out ex officio pursuant to Section 103 of the Social Court Procedure Act (SGG), if necessary after issuing a notice. The Social Court also deemed further investigations necessary during the main proceedings when, in its court letter of June 1, 2010, it requested the respondent to provide a breakdown of the lump sum and further stated that certain items (e.g., baby socks, baby mittens, and so-called burp cloths) had not been taken into account, so that the success of the action does not appear entirely improbable.
The decision on costs is based on Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed, § 177 SGG.
