Decision
In the appeal proceedings
1. xxx,
2. xxx,
Plaintiffs and Appellants,
Legal representatives:
for 1-2: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant,
The 7th Senate of the Lower Saxony-Bremen State Social Court decided on March 27, 2012 in Celle through Judge xxx, Judge xxx and Judge xxx:
Upon appeal by the plaintiffs, the decision of the Hildesheim Social Court of December 10, 2010 is overturned.
The plaintiffs are granted legal aid for the purpose of conducting the legal proceedings (file number: S 25 AS 1985/10) with the appointment of attorney Adam, Göttingen. No installments are payable.
Extrajudicial costs are not reimbursable.
Reasons
I.
In the main proceedings, the parties are in dispute over the admissibility of a separate objection procedure against the cost decision in an objection notice.
The plaintiffs filed an objection against a grant notice issued by the defendant on January 26, 2010, and requested higher basic income support payments. The defendant rejected the objection as unfounded by a decision dated June 16, 2010. In this decision, the defendant determined that the plaintiffs' necessary expenses were not reimbursable. This decision was not challenged by legal action.
The plaintiffs filed an objection by letter dated July 19, 2010, against the cost decision contained in the objection decision of June 16, 2010. The defendant rejected this objection as inadmissible by objection decision dated September 15, 2010, because only an action was admissible against the objection decision of June 16, 2010, but not a new objection. The plaintiffs filed suit against this decision and sought legal aid for the proceedings. The plaintiffs referred to a decision by another chamber of the Hildesheim Social Court (decision of July 29, 2010 – S 45 AS 692/10 –), in which an action against the authority's cost decision in an objection decision had been dismissed as inadmissible because no preliminary proceedings had yet taken place and the cost decision should have been challenged separately by means of an objection.
The Social Court (SG) rejected the plaintiffs' application for legal aid by decision of December 10, 2010. In its reasoning, it stated that a cost decision contained in the objection decision could only be challenged by filing a lawsuit without a separate objection procedure. This corresponded to the prevailing opinion in legal commentary. The mere fact that a single chamber of the Hildesheim Social Court held a differing view did not alter the lack of apparent prospects of success.
The plaintiffs filed an appeal against this decision on December 22, 2010. They argue that the decision on costs in a notice of objection constitutes an independent administrative act. Since there is no exception to the requirement of preliminary proceedings pursuant to Section 78 Paragraph 1 Sentence 2 of the Social Courts Act (SGG), the mandatory conduct of the objection procedure before filing a lawsuit remains in effect. This is also appropriate, they contend, to allow the administration the opportunity for self-monitoring, which can lead to a reduction in the workload of the social courts. Contrary to the opinion of the Social Court, this question is not answered uniformly in the legal commentary. Rather, the necessity of the objection procedure depends on whether the decision on costs is made in the remedial decision or in the notice of objection. The fact that this legal question has not been definitively settled is confirmed by the fact that the same chamber of the Hildesheim Social Court, in its judgment of July 7, 2010 (case number: S 25 AS 1067/10), granted leave to appeal regarding an identical issue due to the fundamental importance of the legal matter. This case is pending before the Lower Saxony-Bremen State Social Court (LSG) under case number L 9 AS 834/10.
The defendant defends the denial of legal aid by referring to the judgment dismissing the action issued by the Social Court of Hildesheim on December 22, 2010.
II.
The plaintiffs' appeal is admissible, well-founded, and leads to the reversal of the social court's decision. The plaintiffs are to be granted legal aid for the purpose of conducting the legal proceedings.
Pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application, provided the intended legal action offers sufficient prospects of success and does not appear frivolous. Sufficient prospects of success are deemed to exist if, based on the party's submissions and a summary review, it appears possible that the applicant could succeed with their claim. A certain probability of success must exist based on the factual and legal circumstances, although the requirements must not be excessive (Federal Constitutional Court – BVerfG – of February 5, 2003 – 1 BvR 1526/02 –, NJVV 2003, 1857). Certainty of success in the proceedings is not required. If a legal question is raised that has not yet been clarified in case law and therefore requires clarification, legal aid must be granted (Federal Constitutional Court, 10 December 2011 – 1 BvR 1803/97). Applying these criteria, sufficient prospects of success were affirmed both at the time the case became ready for a decision and at the later date of the decision of the Social Court of Hildesheim (10 December 2010).
The question of whether a cost decision in a notice of objection can be challenged separately by means of an objection was an unresolved legal issue at the time of the Social Court's (SG) decision under appeal. The plaintiffs have demonstrated, with various references, that differing solutions to this disputed issue are presented in the legal literature. In particular, chambers of the Hildesheim Social Court, the court to which the case was brought, have ruled differently. The plaintiffs cannot be expected to be more knowledgeable than the chamber that, in its decision of July 29, 2010 (S 45 AS 692/10), deemed a separate objection procedure necessary. Only with the decision of the Lower Saxony-Bremen Higher Social Court of February 7, 2011 – L 9 AS 834/10 – can the question be considered resolved. The earlier decision of the Lower Saxony-Bremen State Social Court of 31 March 2004 – L 3 KA 89/01 – dealt only with the question of whether an action against the cost decision in the notice of objection is admissible, but not whether an isolated objection procedure is also possible as an alternative.
Insofar as the Social Court, in the contested decision, has already opted for a specific solution in the ancillary proceedings for legal aid – even if that solution is the correct one – it misunderstands the purpose of legal aid. The legal aid procedure is not intended to provide the constitutionally guaranteed legal protection itself, but merely to make it accessible. In particular, the assessment of the prospects of success must not lead to the legal action itself being shifted into the summary proceedings for legal aid and allowing these to replace the main proceedings (Federal Constitutional Court, 20 June 2006 – 1 BvR 2673/05). While the existence of differing court decisions does not always and automatically justify allowing litigation through all instances at the expense of the public treasury in a similar case, it must be ensured that even indigent litigants have the opportunity to have their views reviewed, at least in one instance. This principle of equal access to justice prohibits administrative decisions being fully reviewed in the legal aid proceedings for an indigent party, while for a financially secure party this review takes place in the main proceedings (established case law of the Senate, see, e.g., in the appeal proceedings against the Social Court of Hildesheim: decision of November 5, 2007 – L 7 B 232/07 AS –). However, in the present case, the Social Court has overburdened and misused the ancillary legal aid proceedings by shifting the main proceedings into the legal aid proceedings before the expected decision of the Higher Social Court of Lower Saxony-Bremen.
The appointment of a lawyer is governed by Section 121 Paragraph 2 of the German Code of Civil Procedure (ZPO).
Extrajudicial costs of the appeal proceedings are not reimbursable (§ 127 para. 4 ZPO).
This decision is not subject to appeal pursuant to Section 177 of the Social Court Act (SGG).
