DECISION
In the litigation
xxx,
applicant,
Legal representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
respondent,
The 11th Chamber of the Kassel Social Court decided on April 29, 2014 through the judge at the Social Court xxx as chairwoman:
The respondent must bear the applicant's necessary out-of-court costs.
REASONS
I.
What is disputed is whether and, if so, to what extent the respondent has to bear the applicant's out-of-court costs.
The applicant, born on xx.xx.19xx, is currently receiving benefits from the respondent in accordance with the Asylum Seekers Benefits Act (AsylbLG). He is accommodated in shared accommodation in xxx in xxx, with the accommodation costs being borne by the respondent. Because of trauma-related experiences in his country of origin, the applicant has been receiving psychotherapeutic treatment at Klinikum xxx for a long time. Due to his illness, the applicant submitted an application for consent to move out of the shared accommodation to the respondent on August 22, 2013. After an initial rejection and filing of an objection, the respondent recognized the applicant's right to move out of the shared accommodation after submitting medical documents as part of an action for failure to act pending at the Kassel Social Court (S 11 AY 1/14). With a fax from his legal representative dated January 27, 2014, the applicant submitted an application to the respondent for approval to rent a 60 m2 apartment in the xxx in (warm rent €400.00, cold rent €300.00, deposit €900.00) together with Mr xxx. The respondent's consent to the move was requested by January 30, 2014.
With regard to this application, the Kassel Social Court received an application for interim legal protection on January 31, 2014. After submitting a specialist medical opinion from Klinikum xxx dated January 29, 2014, the respondent announced on February 6, 2014 that, based on this opinion, he agreed to the applicant moving from the shared accommodation to a private apartment. In principle, the respondent also declared his consent to renting the apartment in xxx together with Mr. xxx. However, more precise information about the rent amount and heating costs is missing. After corresponding statements by the legal representative on February 7, 2014 and February 10, 2014, the applicant's legal representative announced on February 11, 2014 that the landlord of the apartment in question had rented it to someone else on February 10, 2014 and that the proceedings must therefore be declared closed . At the same time, an application was made to order the respondent to pay the applicant's extrajudicial costs. It is alleged that the applicant and Mr. xxx's rental of the apartment only failed because, despite the immediate and timely application being submitted on January 27, 2014, the respondent did not decide on the promise to move. The respondent apparently mistakenly assumed that the rental costs were unreasonable, unaware of the relevant BSG case law.
The respondent has not agreed to reimburse the applicant's out-of-court costs. He explains that, in principle, when an application for an interim injunction is filed, the claim for an injunction and the reason for the injunction must be made credible. The applicant would have had to provide credible evidence that there was actually an apartment available for rent in xxx, e.g. B. by presenting a corresponding declaration from the landlord. However, this did not happen. The application for an interim order was only received by the respondent on February 3, 2014. The court gave one week to comment. The respondent would have had until February 10, 2014 to respond. However, on February 11, 2014, the legal representative declared the proceedings to be over, even though the respondent had already responded a few days before the expiry of the court-imposed deadline. Furthermore, if the applicant had already submitted the specialist medical opinion with the application for approval to move to xxx, this move would also have been approved without the need for an expedited procedure. In any case, the applicant could have waited until the report was available before submitting the urgent application. In the respondent's opinion, there was no need for an urgent application and he was therefore not obliged to cover the procedural costs.
II.
The admissible request for costs is justified. According to Section 193 Paragraph 1 of the Social Court Act (SGG), the court has to decide whether and to what extent the parties involved have to reimburse each other for costs. In principle, this also applies in proceedings for interim legal protection in which a decision is made. Upon request, the court must decide by means of an order if the proceedings are ended differently (as in the present case by a unilateral declaration of completion) (Section 193 Paragraph 1 Sentence 3 SGG). There is no express provision in the SGG as to the conditions under which costs are to be reimbursed. Therefore the legal ideas of §§ 91ff. The Code of Civil Procedure (ZPO) must be taken into account (cf. Meyer-Ladewig et al., SGG with explanations, 10th edition, § 193 SGG, paragraph 13ff.). When settling the dispute by means of a declaration of settlement, the court must apply the legal principle of Section 91a ZPO, according to which the question of costs must be decided at its reasonable discretion, taking into account the current status of the facts and the dispute. In the present case, it should be taken into account that the respondent had already announced in a fax dated February 6, 2014 that, based on the medical opinion from Klinikum xxx, he agreed to the applicant's move from the shared accommodation to a private apartment. He continues in this letter, “In principle, there are no concerns if the applicant moves into the apartment in xxx, xxx, together with Mr. xxx. However, due to the vague information in the application dated January 27, 2014, we would like to ask you to inform us whether the basic rent of €300.00 also includes additional costs and, if so, which ones. In addition, due to the relatively high heating costs even for a 60 m2 apartment, please inform us how the apartment is heated and whether the building has central hot water preparation. The court ultimately interprets these statements as acknowledgment of the applicant's claim to consent to renting the apartment in xxx in xxx, which was asserted in the expedited procedure. This also necessarily means that the respondent is obliged to cover the applicant's out-of-court costs. The applicant was no longer able to use the respondent's basic consent to rent the apartment in xxx, since the landlord of the property there concluded the rental agreement with two other potential applicants on February 10, 2014. Contrary to what the respondent believes, the applicant sufficiently credibly explained the reason for the order and the claim for the order when he received his application for interim legal protection at the Kassel Social Court on January 31, 2014. After all, the respondent was aware of the applicant's health impairments and the need for ongoing trauma therapy treatments in the xxx clinic from the application process for approval to move out of the shared accommodation in xxx, which has been ongoing since August 2013. The applicant did not mention the specific rental option for the xxx in xxx until January 27, 2014. In particular, he specified the key data on the amount of accommodation costs and heating costs as well as the intention to move into the apartment together with another previous resident of the shared accommodation. The respondent's hesitant processing from the submission of the administrative application on January 27, 2014 alone made it necessary for the matter to be dealt with by the court from January 31, 2014. The respondent also gave his basic consent to rent an apartment on February 6, 2014, although he raised further questions about the KdU amount and appropriateness when two people moved into the apartment in a shared apartment, ignoring the question of appropriateness. Not least taking into account the case law of the Federal Social Court on the appropriateness of accommodation costs when moving into an apartment through a shared apartment, the respondent could and should have easily given unconditional consent to rent apartment xxx on February 6, 2014. In this situation, it is justified to burden the respondent with the applicant's out-of-court costs, i.e. with the costs of the applicant's legal representative. The fact that the apartment was rented to someone else by the landlord on February 10, 2014 and that the proceedings were concluded as a result is solely attributable to the respondent.
The decision is incontestable in accordance with Section 172 Paragraph 3 No. 3 SGG.
