S 34 SO 177/08 (Hildesheim Social Court)
decision
In the litigation
xxx,
plaintiff and complainant,
Legal representative:
Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
Legal representative:
xxx,
The B. Senate of the Lower Saxony-Bremen State Social Court decided on January 26, 2012 in Celle by judges xxx - chairman - and xxx and judge xxx:
In response to the plaintiff's non-admission complaint, the appeal against the court decision of the Hildesheim Social Court of February 24, 2010 is permitted.
The complaint process will continue as an appeal process.
The plaintiff is granted legal aid without installment payments for the complaint procedure under the assistance of lawyer Adam, Göttingen.
reasons
I.
The parties involved dispute whether the defendant, the plaintiff, who was born in 19xx and is essentially health-impaired due to diabetes mellitus type IIb, lactose intolerance with pronounced irritable bowel symptoms, chronic gastritis and a lipid metabolism disorder as well as fibromyalgia syndrome, in addition to the approved basic security benefits according to SGB XII for the period from September 1, 2007 to June 30, 2008 (furthermore; for the period in question, see the PKH resolution of the Senate of June 8, 2010 in proceedings L 8 SO 102/10) to grant an additional supplement for more expensive nutrition .
The plaintiff's lawsuit filed on October 1, 2008 after an unsuccessful administrative procedure (rejection decision by the city of Göttingen, acting on behalf of the defendant, of August 29, 2007 in the form of the defendant's objection decision of September 8, 2008) - aimed at the granting of basic security benefits, which are: the claimed additional demand surcharge has been increased - was rejected by the Hildesheim Social Court (SG) in a court decision dated February 24, 2010. The requirements for an additional requirement surcharge according to Section 30 Paragraph 5 SGB XII are not met. According to the relevant updated recommendations of the German Association for the Granting of Health Food Allowances in Social Welfare (3rd completely revised edition 2008), there is no additional nutritional requirement for diabetes mellitus. The German Association's recommendations do not answer the question of whether lactose intolerance causes an additional nutritional requirement. However, the statements of medical officer xxx from the Göttingen City Health Department dated January 28th and November 6th, 2008 as well as December 17th, 2009 show that the plaintiff does not need a more expensive diet because of her illnesses. According to the statement of November 6, 2008, lactose intolerance affects larger parts of the population and therefore represents a widespread normal variant of human digestive enzymes that does not necessarily lead to additional financial expenditure on nutrition. The plaintiff's illnesses do not constitute a need for additional nutrition because a diet containing whole foods is appropriate for the patient's suffering and foods containing lactose can be avoided without incurring additional costs. The court did not see any evidence that would enable it to doubt xxx's statements and to carry out further investigations. To the extent that the plaintiff doubts xxx's professional competence, there is a complete lack of evidence for this. The view she represents that the combination of the various illnesses she has causes an additional need is also completely unfounded. This is an “in the dark” assumption that is not suitable to justify further investigations by the court. The court's opinion is also supported by the brochure “Lactose Intolerance - Lactose-Free Diet” from the Federal Association for Health Information and Consumer Protection, which was presented by the defendant.
The plaintiff initially filed an appeal on March 16, 2010 in accordance with the legal remedies provided in the SG court decision. After the Senate rejected the appeal with its decision of June 15, 2010 - L 8 SO 102/10 - (with reference to its negative PKH decision of June 8, 2010) due to the failure to reach the appeal value of Section 144 Paragraph 1 Sentence 1 No. 1 SGG rejected as inadmissible, the plaintiff filed an appeal against non-admission on July 21, 2010. The procedure is of fundamental importance because it needs to be clarified whether the combination of the various illnesses she has - each of which does not trigger an additional need on its own - can trigger an additional need for nutrition. In addition, the question of whether there is an additional nutritional requirement if you suffer from lactose intolerance has not yet been conclusively decided. In addition, the contested court decision of the SG with regard to the denial of an additional requirement for lactose intolerance deviates from the clear decision of the 6th Senate of the LSG Lower Saxony-Bremen of October 21, 2008 - L 6 AS 458/08 ER. Ultimately, there was a procedural error because the SG did not sufficiently comply with its official duty to investigate. The statements from the defendant's health department were not sufficient. The SG should have heard an independent expert on the question of additional nutritional requirements. The health department's statement does not indicate the special expertise required.
The respondent essentially replies that the matter has no fundamental importance. The SG also did not deviate from a legal sentence that supported the resolution of the 6th Senate of the LSG Lower Saxony-Bremen of October 21, 2008 - L 6 AS 458/08 ER. There is also no lack of information on the part of the SG. Because there was no meaningful specialist medical certificate showing (in a specific individual case) a necessary diet combined with additional financial outlay compared to the healthy population. The family doctor's certificate did not contain any reason. There was no discussion of the health authorities' statements or even their questioning.
II.
The complaint is admissible. It has been filed correctly and within the one-year deadline due to the incorrect information on legal remedies in the SG's judgment in accordance with Section 66 Paragraph 1 in conjunction with Paragraph 2 SGG and the value of the subject matter of the complaint does not exceed the appeal limit of €750.00 in Section 144 Paragraph 1 No. 1 SGG.
The complaint is also justified. The appeal against the SG's court decision of February 24, 2010 is to be permitted in accordance with Section 144 Paragraph 2 No. 3 SGG because the violation of the official investigation duty alleged by the plaintiffs constitutes a procedural defect that is subject to the appeal court's assessment and on which the SG's court decision is based can. The violation of the SG's duty to investigate according to § 103 SGG, complained of by the plaintiff, represents a procedural defect if the court should have felt compelled to carry out further investigations from its legal point of view (Leitherer in Mayer-Ladewig/Keller/Leitherer, SGG, 9 2008 edition § 144 paragraph 34 and § 103 paragraph 20 each with further details). From its legal point of view, the SG should have felt compelled to carry out further investigations - which was also emphatically requested by the plaintiff during the course of the proceedings. According to his correct legal perspective, the answer to the question of whether the plaintiff is entitled to recognition of an additional requirement due to a more expensive diet in accordance with Section 30 Paragraph 5 SGB XII depends on whether the plaintiff's existing lactose intolerance and/or the combination of these Incompatibility with the plaintiff's other illnesses requires a special diet, the cost of which is higher (“more complex”) than is the case for people without such health impairments. The opinions of medical officer xxx from the Göttingen City Health Department dated January 28th and November 6th, 2008 and December 17th, 2009, which were used by the SG, are not a sufficiently reliable basis for a sufficiently reliable assessment of this decisive question. In any case, in cases in which - as here with regard to lactose intolerance or the combination of several illnesses - the recommendations of the German Association for the granting of health food allowances in social assistance do not contain an assessment, the BSG has emphasized the need to carry out medical and medical investigations in individual cases /or to obtain nutritional statements or reports for clarification (cf. only judgments of February 27, 2008 - B 14/7b AS 32/06 R -, juris Rn. 39, of June 9, 2011 - B 8 SO 11/10 R - , juris Rn. 24 and from February 24, 2011 - B 14 AS 49/10 R -, juris Rn. 25). The Senate does not ignore the fact that numerous supermarkets offer a variety of lactose-free foods at no significant additional cost. However, this does not (yet) result in a generally known fact or a general empirical knowledge of the court that lactose intolerance does not cause any additional costs for nutrition. Likewise, the SG did not have sufficient expertise on this issue. It is also not clear from the above-mentioned statements by xxx what expertise the author has and what medical and nutritional principles he bases his statements on. These statements are therefore not sufficiently comprehensible and sustainable. Therefore, the SG should have felt compelled to further clarify the facts by obtaining a medical and/or nutritional expert report.
The complaint process will continue as an appeal process. It is no longer necessary to file an appeal, Section 145 Paragraph 5 Sentence 1 SGG.
The decision on costs is reserved for the decision in the main case because the costs of the appeal proceedings follow the decision on costs in the main case.
The plaintiff is to be granted legal aid without payment in installments for the complaint procedure. As can be seen from the above statements, your complaint has the reasonable prospect of success as required by Section 73a Paragraph 1 Sentence 1 SGG in conjunction with Section 114 ZPO. As a recipient of basic security benefits according to SGB XII, she also meets the economic requirements for approval of PKH without payment in installments. The appointment of the lawyer is based on Section 121 Paragraph 2 ZPO.
This decision is incontestable, Section 177 SGG.
