DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
xxx,
– Respondent –
The 35th Chamber of the Hildesheim Social Court decided on December 2, 2013, through Judge xxx:
1. The respondent is provisionally ordered, subject to recovery, to pay the applicant the sum of €506.00 upon return of the original cost guarantee certificate dated November 8, 2013.
2. The applicant is ordered to provide the respondent with proof of each purchase made with the amount paid under point 1 by May 31, 2014. For purchases up to €100.00, this proof must be provided by submitting a receipt; for purchases exceeding €100.00, a written sales contract must be submitted, clearly stating the purchased item, the purchase price, and the seller's full name and address. The applicant must repay any remaining balance between the respondent's payment and the applicant's documented expenses by June 15, 2014. Furthermore, the applicant is prohibited from transferring or relinquishing ownership of the items acquired with the amount paid under point 1 to any third party.
3. Furthermore, the application is rejected.
4. The applicant is granted legal aid without payment of court fees for the preliminary injunction proceedings, with the appointment of Mr. Adam, Attorney at Law, Göttingen.
5. The respondent shall reimburse the applicant for her necessary extrajudicial expenses.
REASONS
I.
The applicant is challenging the approval of items for the initial outfitting of her child expected in December 2013, with a cost guarantee certificate, within the framework of a benefit relationship under the Second Book of the Social Code (SGB II).
The applicant, born in 19xx, receives benefits to secure her livelihood under the German Social Code, Book II (SGB II). She is pregnant and expects her first child at the end of December 2013.
By decision dated November 8, 2013, the respondent granted the applicant €624.00 for initial baby equipment. The total amount was based on the following individual items: 1 wardrobe at €52.00, 1 combination pram with accessories at €160.00, 1 crib at €108.00, 1 crib mattress at €50.00, 1 children's duvet at €40.00, 1 children's pillow at €11.00, 2 sets of bed linen at €14.00 each, 1 lump sum for initial infant equipment (clothing, baby bathtub, care products, cleaning supplies, bottles, etc.) at €135.00, and 1 footmuff at €40.00. For the purchase of the items, the respondent provided the applicant with a so-called cost guarantee certificate, valid until January 14, 2014. The applicant filed an objection to this on November 18, 2013, primarily challenging the granting of benefits in the form of the cost guarantee certificate. No decision has yet been reached on this objection.
After the responsible caseworker informed the applicant in a personal meeting on November 20, 2013, that no remedy was intended, the applicant filed an application for preliminary legal protection and legal aid on the same day, initially seeking only the disbursement of the approved amount as a cash benefit. In a subsequent written submission, the application was expanded to include benefits in the amount of €800.00. It was not apparent that the respondent had exercised its discretion under Section 24 Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II), regarding whether the benefit should be provided in kind or in cash. Neither the decision of November 8, 2013, nor the cost guarantee certificate indicated how and from what sources the applicant was supposed to pre-finance the items if she purchased them privately or online. Furthermore, it was not specified which stores in and around [location redacted] even accepted the vouchers. In addition, some items in the [location redacted] area were not available at the stated price. However, a reallocation of funds is not possible, as the cost guarantee certificate stipulates that no change may be given. Taking into account the current service regulations of the Göttingen district, the wider range of products available there, and the travel expenses incurred in Göttingen, an amount of €800.00 should be allocated for the initial equipment purchase. Furthermore, the respondent has not yet demonstrated which surveys or verifiable empirical data formed the basis for the approved amount.
Since the applicant does not have sufficient means to purchase the initial equipment and is heavily pregnant, there is also grounds for an order.
The applicant essentially requests that
the respondent be provisionally ordered, subject to the right of recovery until a legally binding decision is reached on the applicant's objection of November 18, 2013, against the respondent's decision of November 18, 2013 (file no.: 611 23016BG0025710), to pay the applicant the sum of €800.00 upon return of the original cost guarantee certificate of November 8, 2013.
The respondent requests that
the application be rejected.
He believes the decision made is correct.
Following the court's order of November 22, 2013, the respondent submitted, by letter dated November 25, 2013, service regulations and a statement from the responsible case worker regarding the conversation with the applicant on November 20, 2013. According to this statement, the applicant intended to order the stroller and crib online. The respondent had promised to settle the invoices upon presentation of the invoices and the original cost guarantee certificate. Furthermore, the respondent had been informed of stores in xxx where the remaining items could be purchased for the specified amount upon presentation of the cost guarantee certificate. For further details, reference is made to pages 70 et seq. of the court file. In addition, the respondent stated that, due to the short deadline set by the court, it had not been possible to obtain the necessary information from the municipal authority. Price lists could be provided upon request, showing that the costs could be covered with a maximum of €624.00. The Göttingen district's service regulations are not applicable in this case. The provision of benefits via a cost guarantee certificate was chosen due to the applicant's rent arrears.
In a letter dated November 26, 2013, the respondent's authorized representative confirmed the information provided by the case worker regarding the purchase of a stroller and crib and stated that this fact was undisputed.
For further details of the facts and the legal arguments, reference is made to the contents of the court files and the administrative files (3 volumes).
II.
The application is admissible.
The plaintiff has standing to sue. While the claim for initial infant equipment can generally only be asserted by the newborn child (Lower Saxony-Bremen State Social Court, decision of February 28, 2011 – L 7 AS 1443/10 B), this does not apply to needs claimed by a parent entitled to benefits in anticipation of the impending birth, particularly when – as in this case – there is no serious doubt that the newborn child will be eligible for benefits under Book II of the German Social Code (SGB II).
The application is successful to the extent indicated in the operative part of the judgment.
Pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), the court may issue preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. The issuance of such an injunction requires that, under substantive law, a claim to the requested performance exists (claim for the injunction) and that the injunction is necessary to avert substantial disadvantages (ground for the injunction). Both the claim for the injunction and the ground for the injunction must be substantiated in accordance with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO) in conjunction with Section 86b Paragraph 2 Sentence 4 of the SGG. If the court is unable to fully clarify the factual and legal situation in the expedited proceedings, a decision must be made based on a balancing of interests. The applicant's fundamental rights must be fully taken into account in the balancing of interests (Federal Constitutional Court, decision of 12 May 2005 – 1 BvR 569/05 – NVwZ 2005, 927 ff).
According to these standards, the requirements for issuing a preliminary injunction are met.
The applicant has credibly demonstrated a claim to the requested monetary benefit instead of the granted cost guarantee certificate. In this respect, reference is initially made to the decision of the Hildesheim Social Court of November 29, 2011 – S 26 AS 1788/11 ER:
"According to Section 24 Paragraph 3 Sentence 1 Number 2 Alternative 3, Sentence 2 of the German Social Code, Book II (SGB II) (as promulgated on May 13, 2011 (Federal Law Gazette I 850)), needs for initial equipment for a birth are not covered by the standard allowance under Section 20. Benefits for these needs are provided separately. According to Sentence 5 of the regulation, these benefits can be provided as benefits in kind or cash benefits, including lump sums.".
The need for initial equipment due to the impending twin birth was recognized by the decision of 09.09.2011; the parties are only disputing the type of approval.
The respondent decided to grant the applicant the necessary items as benefits in kind. While the law does not specify whether a voucher, with which the benefit provider guarantees the beneficiary direct payment of an initial equipment item to a seller up to a certain maximum amount, should be classified as a cash benefit or a benefit in kind, Section 10 Paragraph 3 Sentence 2 of the Twelfth Book of the German Social Code (SGB XII), which defined the granting of a benefit by way of a voucher as a benefit in kind, was repealed on January 1, 2011. Although the situation at hand constitutes a purchase agreement under civil law, in which the seller of an item accepts the voucher as consideration instead of a cash payment (in lieu of performance, Section 364 of the German Civil Code), the fact that the voucher replaces a cash payment does not mean that the voucher itself should be considered a cash benefit. Rather, the voucher should be regarded as a benefit in kind, because the beneficiary receives only the item named therein upon presentation of the voucher and cannot deal with the voucher in a manner comparable to money or a cashless means of payment.
The decision to grant vouchers was, however, flawed due to an error in the exercise of discretion, because the applicant is entitled to cash benefits. The discretion afforded to the respondent under Section 24 Paragraph 3 Sentence 5 of the German Social Code, Book II (SGB II) is therefore limited.
The beneficiary can claim cash benefits if the benefit provider generally fulfills its obligations by providing cash benefits (possibly as a lump sum) (see Federal Social Court [BSG], judgment of August 19, 2010 – B 14 AS 10/09 R [para. 28]). In this respect, however, the respondent has contradicted its own service regulations, according to which allowances for initial equipment are "generally" granted in the form of lump sums. It is irrelevant whether the respondent understands this term in the sense of "generally" or whether it intended to reserve the right to provide benefits in kind for exceptional cases. The former is supported in particular by the fact that the service regulation deals almost exclusively with the amount of lump sum cash benefits and makes no mention of the conditions under which benefits in kind might be considered. But even if the latter were the case, the respondent had failed to demonstrate, either in the contested decision or in the court proceedings, that, and if so, which conditions existed that would exceptionally justify granting benefits in kind. He was therefore obligated to grant a monetary benefit.
Notwithstanding the foregoing, the respondent failed to consider that – as a general principle of needs-based coverage – needs must be able to be met adequately and appropriately (Münder, in: LPK-SGB II, 4th ed., § 24 para. 13). Accordingly, when providing benefits in kind, the respondent is expected to specifically identify the sources from which the beneficiary can obtain the necessary item in basic quality upon presentation of the voucher, without any additional payments. The respondent failed to do so, even after being expressly requested to do so by the court. In particular, the reference to offers on the eBay auction platform is irrelevant. The respondent overlooks the fact that the applicant never questioned during these proceedings that the amounts stated in the vouchers were sufficient to purchase the respective items. Against this background, the submitted offers – although the offer parameters, in particular the item location, are not apparent – are not suitable for proving appropriate sources of supply, because eBay auctions cannot be paid for with the vouchers issued by the respondent. The respondent's general reference to various retail stores also fails to fulfill his obligations, as it is impossible to verify which items are offered at what time, and in what type and quality. Even the fact that he cites the goods and prices listed in the online shop of JYSK (formerly Dänisches Bettenlager) for a (smaller) portion of the items does not prove that these goods are available at the stated prices in a local branch. Since the respondent is ultimately unable to provide concrete proof of the sources of supply, he must grant financial assistance, retaining the option of granting a lump sum in accordance with Section 24 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II). Against this background, it is unnecessary to decide whether the reference to payment by means of a voucher constitutes discrimination against a benefit recipient (rejected by the Higher Social Court of Saxony-Anhalt in its decision of April 7, 2011 – L 5 AS 50/11 B ER; left open by the Higher Social Court of Lower Saxony-Bremen in its decision of February 28, 2011 – L 7 AS 1443/10 B), whether – irrespective of the provisions of the administrative regulations of the benefit provider – cash benefits should be granted as a priority (Münder, loc. cit., § 23 para. 16 with further references), and whether, when granting initial equipment, the benefit recipient's interest in offsetting additional expenses for individual items with savings on other items must be taken into account
The court concurs with these findings out of its own conviction. In the present case, the respondent's discretion regarding the provision of benefits as cash has been reduced to zero by a self-imposed restriction. The service instructions submitted in the proceedings stipulate that assistance under Section 24 Paragraph 3 of the German Social Code, Book II (SGB II), is generally to be provided as a cash payment. Only in justified individual cases is assistance to be granted in the form of vouchers or benefits in kind. Regardless of the fact that the respondent has, for the first time in these proceedings, indicated a degree of discretion regarding the provision of benefits as vouchers, the court cannot discern from this the existence of a justified individual case. It is incomprehensible – and is not further specified by the respondent – how the cause of the resulting rent arrears could justify granting the plaintiff's initial furnishings as a voucher rather than as a cash payment, contrary to the service instructions. Rent arrears, which experience shows can have a variety of causes not exclusively within the responsibility of the benefit recipients, are not so closely related to the benefits under Section 24 Paragraph 3 of the German Social Code, Book II (SGB II) that this alone would justify a fundamentally different treatment of the applicant compared to other benefit recipients.
The applicant has also credibly demonstrated a greater need than that approved by the respondent with the cost guarantee certificate. While the flat rates calculated by the applicant for the Göttingen area do not apply directly to the respondent's district, the applicant's limited availability in [location redacted] necessitates purchasing items in Göttingen or online and via mail order. Therefore, it cannot be ruled out that a greater need exists. In this respect, the flat rates calculated for Göttingen can at least be considered as an indicator. In contrast, even after explicit judicial inquiry, the respondent has failed to explain, up to the time of the decision, what data was collected to determine the flat rates. Furthermore, as evidenced by the note from the responsible case worker regarding the conversation on November 20, 2013, the respondent also apparently assumes that not all necessary items can be purchased in [location redacted]. Based on the calculated needs for Göttingen, amounting to €165.00 for initial clothing and €498.00 for initial infant equipment, as well as the items not included therein, for which the respondent has nevertheless committed by issuing a cost guarantee certificate (wardrobe at €52.00 and footmuff at €40.00), a potential total need of €755.00 results. However, according to the parties' submissions, the amounts for the crib (at least €90.00 plus €39.00 for the mattress) and the stroller (at least €120.00) must be deducted from this amount. With regard to these items, the respondent, with the applicant's consent, has agreed to pay the invoices for the intended online order upon presentation of the receipts. Therefore, there is no longer a need for legal protection in this respect for a payment in the form of a cash benefit. This results in the amount stated in the operative part of the judgment.
According to the case law of the Federal Social Court (see judgment of April 13, 2011 – B 14 AS 53/10 R), the amount is not to be increased due to any travel expenses incurred to Göttingen. These can therefore be covered without further ado from the allowance for mobility costs provided in the standard benefit rate.
The grounds for the injunction arise from the imminent birth of the applicant's child, which precludes her from being expected to await a decision on the merits of the case. While it is true that the applicant's unexplained refusal to even attempt to use the voucher for necessary purchases raises some doubts about the urgency of her request, this would only decisively negate the urgency if it were sufficiently demonstrated that the applicant could use the voucher in such a way as to meet the needs promptly. Since the respondent, despite corresponding correspondence with the court, remains unable to identify sources where all items can be purchased with a cost guarantee voucher without additional charges, it appears highly questionable whether the applicant's child's basic needs can be met in a reasonable manner before the due date. In contrast, the respondent's interest in paying out money to a seller on a voucher and not making any payment to the applicant is not worthy of protection. Since the respondent's discretion is reduced to zero, it is unnecessary to decide whether a preliminary injunction against the respondent is also possible when discretion is not reduced (regarding the latter, see Lower Saxony-Bremen Higher Social Court, decision of March 1, 2011 – L 7 AS 1402/10 B ER; decision of June 11, 2008 – L 6 AS 248/08 ER).
The order under point 2 follows from Section 86b Paragraph 2 Sentence 4 of the Social Court Act (SGG) in conjunction with Section 938 Paragraph 1 of the Code of Civil Procedure (ZPO). In exercising its discretion, the court deems it appropriate, to ensure the provisional nature of the ruling, to require the applicant to provide written proof of the use of funds and to prohibit her from disposing of the acquired items. Furthermore, the court considers it appropriate to require the applicant to repay to the respondent any funds demonstrably used for the initial outfitting. The applicant has no legitimate interest in retaining funds that may not be needed, even temporarily.
The applicant is to be granted legal aid pursuant to Section 73a Paragraph 1 of the Social Courts Act (SGG) in conjunction with Sections 114 and 115 of the Code of Civil Procedure (ZPO), because, based on her personal and financial circumstances, she is unable to bear the costs of litigation from her own income or assets, not even partially or in installments. Furthermore, as previously stated, the intended legal defense or pursuit cannot be deemed to lack sufficient prospects of success from the outset. The application also does not appear frivolous. Attorney Adam is to be appointed to represent the applicant pursuant to Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
The decision on costs is based on a corresponding application of Section 193 Paragraphs 1 and 4 of the Social Court Act (SGG).
This decision is final and not subject to appeal (Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) as amended and in force from April 1, 2008), because an appeal on the merits would not be admissible. According to Section 144 Paragraph 1 No. 1 of the SGG as amended and in force from April 1, 2008, an appeal is only admissible if the value of the subject matter of the appeal exceeds €750.00. The amount in controversy is not more than €750.00 for either the respondent – taking into account that an amount of €624.00 has already been granted, albeit against a cost guarantee certificate – or the applicant. It is unnecessary to decide whether leave to appeal would be admissible by analogy to Section 144 Paragraph 2 of the SGG (cf. Lower Saxony-Bremen State Social Court, decision of October 21, 2008 – L 6 AS 458/08 ER), because in any case, no grounds for granting leave to appeal are apparent.
