DECISION
In the legal dispute
xxx,
applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
Respondent,
The Social Court of Hildesheim – 38th Chamber – decided on June 25, 2013, through the presiding judge, Judge xxx:
1. By way of preliminary injunction, the respondent is ordered to grant the applicant benefits to secure his livelihood in accordance with the Second Book of the Social Code in the statutory amount, provisionally for a maximum of six months and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of May 31, 2013 against the respondent's decision of May 27, 2013.
2. The applicant's necessary extrajudicial costs shall be borne by the respondent.
3. The applicant is granted unrestricted legal aid for the conduct of the preliminary injunction proceedings in the first instance, with the appointment of Mr. Adam, Attorney at Law, Göttingen.
REASONS
I.
The respondent last granted the applicant benefits to secure his livelihood under Book Two of the German Social Code (SGB II) in the amount of €735.16 per month until May 31, 2013 (see decision of November 16, 2012). Since the applicant complained in 2011 of visual impairment in both eyes and, later during the period of benefit receipt, of sleep disturbances and hallucinatory symptoms of unclear origin, the parties agreed in the integration agreement of October 18, 2012, that the respondent would initiate an official medical assessment to determine the applicant's employability as soon as the relevant examinations were completed, and the applicant undertook to inform his case manager as soon as the necessary examinations were completed and to submit the signed release from confidentiality and the completed health questionnaire. At a consultation appointment on February 21, 2013, which was held to initiate an official medical examination, the applicant submitted a blank health questionnaire and an unsigned release from confidentiality, arguing that initiating the assessment was unlawful.
On March 5, 2013, and March 22, 2013, the applicant received summonses to participate in medical/psychological examinations on April 8, 2013, and April 26, 2013, respectively. Each summons included information about the legal consequences pursuant to Section 32 of the German Social Code, Book II (SGB II). For further details, please refer to pages 36 to 42 of the respondent's file.
According to an internal memo from Dr. [Name omitted]... Document xxx dated April 26, 2013, shows that the applicant attended the scheduled examination on April 26, 2013, but refused to undergo the assessment, arguing that there was neither a court order nor a reasoned request from the public health department.
By letter dated May 10, 2013, the respondent informed the applicant of his duty to cooperate pursuant to Sections 62 and 66 Paragraph 2 of the First Book of the German Social Code (SGB I) and requested that he contact Ms. xxx to arrange a new appointment. The letter also contained the following information:
"Should you fail to fully comply with your duty to cooperate by May 26, 2013, the further granting of benefits under the German Social Code, Book II (SGB II), may be denied pursuant to Section 66, Paragraph 2 of the German Social Code, Book I (SGB I).
On May 8, 2013, received on May 15, 2013, the applicant submitted an application for continued benefits.
By decision dated May 27, 2013, the respondent rejected the application of May 15, 2013, due to a lack of cooperation pursuant to Section 66 of the German Social Code, Book I (SGB I), as he had refused the examination during the appointment on April 26, 2013. The respondent further stated that, due to the lack of cooperation, an assessment of the eligibility requirements under the German Social Code, Book II (SGB II) could not be carried out. And, 'within the scope of my discretionary powers, I therefore feel obliged to deny you the requested benefits.'"
The applicant, represented by counsel, filed an objection to the decision of May 27, 2013, by letter dated May 30, 2013, and submitted an application for preliminary legal protection to the Hildesheim Social Court by letter dated June 3, 2013. The applicant asserts that he is entitled to benefits under Book II of the German Social Code (SGB II). Even the alleged refusal to undergo a medical examination by a public health officer would not justify the complete denial of benefits. In further support of his claim, he refers to the decision of the Federal Social Court of November 7, 2011 (Case No. B 7b AS 10/06 R).
The applicant requests in writing that
the respondent be ordered by way of an interim injunction to grant the applicant the requested benefits in the statutory amount on a provisional basis and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of May 31, 2013 against the respondent's decision of May 27, 2013, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
In support of his decision, he refers to his statements in the notification of May 27, 2013. According to the applicant, the medical examination was also intended to clarify whether he was using addictive substances and whether he was suitable to work in the field of care for people. Various measures had already been taken in the past to clarify the applicant's state of health. The denial of benefits also appears warranted within the scope of the discretion granted by law, even considering the applicant's interests, as the question of whether, and to what extent, the applicant's reported health problems impair his employability cannot remain open indefinitely.
For further details of the facts and the legal arguments, reference is made to the court file and the administrative files of the respondent (1 folder and 1 binder), which were submitted to the court and formed the basis of the decision-making process.
II.
The admissible application for preliminary legal protection is well-founded.
The respondent is provisionally ordered to grant the applicant basic income support benefits from the date of application to the court (June 3, 2013).
According to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. The claim for the injunction – a legal claim enforceable in the main proceedings – as well as the grounds for the injunction – the urgency of the judicial decision – must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)). This is the case here.
The necessary claim for an injunction is not initially precluded by the effect of the refusal notice of May 27, 2013. Whether the applicant's objection of May 30, 2013, against the notice of May 27, 2013, has suspensive effect or whether this is excluded under Section 39 of the German Social Code, Book II (SGB II), is irrelevant. This notice proves to be unlawful, so it does not preclude the preliminary application for benefits.
The court is convinced that it is unnecessary to determine whether the denial of benefits is unlawful simply because the applicant is entitled to refuse a neurological/psychiatric examination. Section 62 of the German Social Code, Book I (SGB I) stipulates that anyone applying for or receiving social benefits must, at the request of the responsible benefit provider, undergo medical and psychological examinations insofar as these are necessary for the decision regarding the benefits. However, the court is convinced that, based on a preliminary review of the available documents, the necessity of the examination is not comprehensible, as it is based solely on statements made by the applicant and no concrete evidence of health impairments has been provided. Insofar as the respondent states that the expert opinion was also intended to clarify whether the applicant uses addictive substances, there is no evidence of such use. No such conclusions can be drawn from the applicant's behavior or manner of speaking.
The refusal notice appears particularly unlawful because the decision to refuse benefits, which is only possible after setting a deadline and has future effect, is at the discretion of the authority (Federal Social Court [BSG] as above; BSG judgment of February 22, 1995, 4 RA 44/94 = SozR 3-1200 § 66 No. 3, pp. 13 et seq.; Becker, jurisPR-SozR 5/2006, note 1). The respondent has not made any use of the discretion granted to it. Since there is also no reduction of discretion to zero to the detriment of the applicant – at least the timing and amount of the refusal cannot be considered predetermined – the refusal is unlawful and therefore cannot be used to oppose the applicant's claim for benefits. The respondent did not address whether the benefits should be denied in whole or in part, or for what reasons a sanction under Section 32 of the German Social Code, Book II (SGB II) might have been considered as a less severe measure.
The court acknowledges that entitlement to basic income support under Book II of the German Social Code (SGB II) presupposes employability (§ 7 sentence 1 no. 2 SGB II), which has not yet been established and for which the applicant ultimately bears the burden of proof. However, if the applicant's employability is no longer present, there is no doubt that, given his income and assets, he is entitled to social assistance under Book XII of the German Social Code (SGB XII). Since § 44a paragraph 1 sentence 3 SGB II establishes the regular obligation of the SGB II benefit provider to make advance payments in disputes concerning employability, a preliminary obligation on the part of the respondent appears appropriate to secure the applicant's livelihood, especially as the respondent may have a claim for reimbursement against the SGB XII benefit provider.
In view of the applicant's complete lack of means, the Chamber also considers the necessary grounds for the order to be credible.
The decision on costs is based on a corresponding application of Section 192 of the Social Courts Act (SGG) and takes into account the outcome of the proceedings.
Since the application therefore offers sufficient prospects of success within the meaning of Sections 73a Paragraph 1 SGG, 114 ZPO, and the applicant is not able to raise even part of the costs of the litigation, he is to be granted legal aid without payment of installments.
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