decision
In the complaint process
xxx,
plaintiff and complainant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
The 9th Senate of the Lower Saxony-Bremen State Social Court decided on January 5, 2012 in Celle through its judges xxx - chairman -, xxx and xxx:
In response to the complaint, the Hildesheim Social Court's decision of November 2nd, 2011 rejecting legal aid is overturned and the complainant is granted legal aid without the obligation to pay installments for the legal action under the advice of lawyer Adam from Göttingen.
Charges are not to be reimbursed.
reasons
I.
The parties involved are primarily arguing about benefits in accordance with Book II of the Social Code - Basic Security for Job Seekers - (SGB II).
By decision of May 11, 2009, the mother of the plaintiff and complainant, who was born on xxx, was granted benefits under SGB II (BI. 12 GA). She, represented by her legal representative, lodged an objection to this in a letter dated May 14, 2009 and at the same time requested the “granting of initial equipment for pregnant women and then the birth.” (BI. 24 GA).
By decision of May 22, 2009, the defendant and respondent granted the complainant's mother a one-off payment for initial infant equipment in the amount of 130.00 euros (BI. 27 GA).
The complainant's mother lodged an objection to this in a letter dated May 26, 2009, stating, among other things, that the flat rate granted of EUR 130.00 was too low. In addition, there is no justification as to why a flat rate is granted and which services are included in the flat rate (BI. 30 GA).
With an objection decision of June 5, 2009, the complainant rejected the objection to the decision of May 22, 2009 as unfounded (BI. 33 GA). The amount of the flat rate set for the initial equipment of an infant is based on the current prices on the used market and was determined and set on the basis of careful research.
The complainant's mother filed a lawsuit against this before the Hildesheim Social Court (SG) on June 11, 2009. The SG has since changed the active rubrum and included the complainant, legally represented by her mother, as plaintiff/complainant.
In support of her complaint, the complainant stated that the term initial equipment for newborns is not only limited to clothing, but also includes, for example, services for a cot with a slatted frame, mattress and bedding, a stroller, a changing table, a baby bathtub and a playpen .
The respondent responded in a letter dated July 31, 2009 that the application for initial baby equipment had not yet been fully decided. So far only a flat rate has been granted for clothing. The lawyer's letter dated May 14, 2009 does not indicate a “full application for initial baby equipment”. Furthermore, granting winter equipment for the complainant, who was born on June 5, 2009, is not an option, but rather should be covered from the clothing portion of the standard requirements.
In response to the SG's reference in a court letter dated June 1, 2010, as to which specific items of equipment had already been purchased, the complainant submitted a list of items that had already been purchased at a total price of 207.11 euros (BI. 84 GA).
In another letter dated June 1, 2010, the SG asked the respondent to explain which initial equipment items were included in the flat rate of 130.00 euros and why the amount was considered sufficient for initial equipment for an infant. The respondent then broke down the flat rate of 130.00 euros in a letter dated August 19, 2010 and stated which items had been taken into account, stating the sources of supply (Bi. 74 GA).
A settlement proposed by the SG (Bi. 89 GA), according to which the respondent paid the complainant a further one-off amount of 40.00 euros, amending the decision of May 22, 2009 in the form of the objection decision of June 5, 2009 Initial infant equipment was granted because the initial infant equipment items listed in the letter dated August 19, 2010, for example baby socks, baby gloves and so-called burp cloths, were not taken into account, which the respondent rejected in the letter dated June 10, 2009 (page 91 GA).
By decision of November 2, 2011, the SG rejected the complainant's application to grant her legal aid (PKH) for the implementation of the first instance legal proceedings under the advice of lawyer Adam from Göttingen.
The complainant lodged a complaint against this on November 10, 2011 and, elaborating on her previous submissions, claimed that the flat rate granted by the respondent was too low.
II.
The complainants' complaint, which is admissible under Sections 172 and 173 of the Social Court Act (SGG), is well founded.
The SG wrongly rejected the application for approval of PKH. There are sufficient prospects of success for this procedure (Section 73a SGG in conjunction with Section 114 of the Code of Civil Procedure - ZPO).
According to Section 73a Paragraph 1 Sentence 1 SGG in conjunction with Section 114 Sentence 1 ZPO, a party who, due to their personal and economic circumstances, cannot afford the costs of the litigation, can only partially or only in installments, receives PKH upon application if the intended legal action or legal defense offers a reasonable chance of success and does not appear wanton.
In this sense, the prospects of success of a lawsuit are not only sufficient if, in the necessarily prognostic assessment of the possibilities of success in the lawsuit, a later victory already appears more likely than a defeat. For constitutional reasons alone, when assessing the prospects of success, an examination that is not too strict is necessary; Because Article 3 Paragraph 1, Article 20 Paragraph 3 and Article 19 Paragraph 4 of the Basic Law (GG) require extensive equality between wealthy and poor people with regard to their respective opportunities to make use of effective legal protection (Federal Constitutional Court - BVerfG decision of 26 April 1988 - Ref.: 1 BvL 84/86 -, BVerfGE 78, 104). In particular, the legal recourse guarantee of Article 14 Paragraph 4 of the Basic Law against the sovereign actions of social security institutions is violated if the clarification of legally and factually relevant doubts, which can only be expected as a result of a legal procedure, is brought forward into the PKH approval procedure in the sense of an overly coarse decision forecast. PKH may therefore only be refused from the point of view of insufficient prospects of success if success in the main matter is, if not impossible, then at least completely remote (BVerfG, decision of April 7, 2000 - 1 BvR 81/00 -, NJW 2000, 1936 ff. on PKH approval in the case of open legal questions). Rather, it is sufficient for PKH to be approved if the lawsuit can be conclusively substantiated on the basis of a provisionally justifiable legal position worthy of discussion and in fact there is a good possibility of providing evidence or if there are further investigations relevant to the decision within the scope of the court's duty to clarify the facts or the collection of evidence is required (see Leitherer in detail in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th edition 2008, § 73a Rn. 7a as well as the Senate decisions of February 2, 2011 - L 9 AS 1209/10 B - and B. December 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 No. 2 in the version valid until December 31, 2010 (aF), benefits for initial clothing and initial equipment during pregnancy and birth are not included in the standard benefit. In accordance with Section 23 Paragraph 3 Sentence 4 SGB II old version, these benefits can be provided as benefits in kind or in cash, also in the form of lump sums. According to sentence 5 of the regulation, appropriate information about the necessary expenses and verifiable empirical values must be taken into account when calculating the lump sum amounts. Flat-rate amounts of money for initial clothing must be calculated in such a way that the person in need of assistance can dress in a humane manner with the amount granted. The amount of the flat rates must also be comprehensible on the basis of sources of supply, price lists, etc. (see Federal Social Court, judgment of April 13, 2011 - B 14 AS 53/10 R -). In addition to the necessary clothing, the initial equipment for pregnancy and birth also includes complete baby equipment (see Münder in: LPK-SGB II, 4th edition 2011, § 24, Rn. 34). The initial or basic set of clothing must be such that it allows the beneficiary to change clothing several times within a week and includes summer clothing as well as winter clothing (see Münder, in: LPK-SGB II, 4th edition 2011, § 24, paragraph 33). The necessary initial equipment for infants also includes the necessary household items, such as a playpen, high chair, stroller with accessories, mattress, bathtub (see Berlin-Brandenburg State Social Court, decision of March 3, 2006 - L 10 B 106/06 AS ER; SG Braunschweig, decision of March 7, 2005 - S 18 AS 65/05 ER; SG Hamburg, decision of March 23, 2005 - S 57 AS 125/05 ER; SG Speyer, decision of May 25, 2005 - S 5 AS 53/ 05; SG Lüneburg, decision of June 20, 2005 - S 25 AS 231/05 ER), a baby carrier bag (see SG Lüneburg, decision of April 22, 2005 - S 30 AS 107/05 ER). If proper and safe bathing and changing of a small child is not possible otherwise, the necessary requirements for a changing child also include a bathing and changing combination (cf. SG Lüneburg, decision of April 22, 2005-3 30 AS 107/05 ER) . The need for beds, chairs, etc. that becomes necessary after birth as the child grows up depending on its height (for the first child) must be covered as part of the initial equipment for the apartment. Under certain circumstances, items that already exist from older siblings can be used (cf. SG Bremen, decision of February 27, 2009 - S 23 AS 255/09 ER).
Taking these criteria into account, success in the lawsuit is not entirely unlikely. In a written statement dated July 31, 2009, the respondent himself admitted that with the decision of May 22, 2009 in the form of the objection decision of June 5, 2009, he had not yet made a complete decision on the application for initial baby equipment and so far only one I was granted a flat rate for clothing. According to what has been said above, the complainant's claim according to Section 23 Paragraph 3 Sentence 1 No. 2 SGB II old version is not yet fulfilled. A corresponding decision that has yet to be issued would become the subject of the lawsuit in accordance with Section 96 (1) SGG. In addition, it must be taken into account that the respondent has not yet taken into account any initial winter clothing requirements in his flat rate and - according to the SG in the court letter of May 25, 2011 - baby socks, gloves and burp cloths, for example, may also have to be taken into account.
Furthermore, the complainant expressly requested not only initial equipment benefits in the event of birth, but also in the event of pregnancy, both in her application with the respondent dated May 14, 2009 and in the statement of claim. The respondent has obviously not yet made a decision on this either. Insofar as the respondent states that the lawyer's letter of May 14, 2009 does not contain a complete application regarding initial baby equipment, this is incomprehensible to the Senate because the application does not require interpretation. The wording of the application already shows that the “granting of initial equipment for pregnant women and then the birth” was expressly requested. With his application, the complainant's legal representative was obviously based on the wording of Section 23 Paragraph 3 Sentence 1 No. 2 SGB II old version, according to which benefits for initial equipment during pregnancy and birth are not included in the standard benefit.
Insofar as the SG stated in the contested decision of November 2nd, 2011 that the list of initial equipment requirements submitted by the complainant in the letter dated January 14th, 2011 was not sufficient, according to Section 103 SGG, if necessary after issuing a notice, of its own motion to be further investigated. The SG also considered it necessary to carry out further investigations in the lawsuit when, in a court letter dated June 1, 2010, it asked the respondent to break down the flat rate and also stated that certain items (e.g. baby socks, baby gloves and so-called burp cloths) were not included have been taken into account, so that the success of the lawsuit does not appear entirely remote.
The cost decision is based on Section 73a Paragraph 1 SGG in conjunction with Section 127 Paragraph 4 ZPO.
This decision is incontestable, Section 177 SGG.
