COURT ORDER
In the legal dispute
xxx,
Plaintiff,
represented by: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
1. xxx,
2. xxx,
Defendant,
The 11th Chamber of the Social Court of Kassel, through Judge xxx as presiding judge, rendered the following judgment on September 3, 2014, without oral proceedings:
The defendant no. 2 is obliged to decide on the plaintiff's objection of 28 August 2013 regarding the performance period from 1 August 2013 to 27 October 2014.
Defendant 1 and Defendant 2 shall each reimburse the plaintiff half of the necessary extrajudicial costs.
The appeal is not admitted.
FACTS OF THE ACT
The plaintiff, in the context of an action for failure to act, seeks a decision on his objection of 28 August 2013 regarding the amount of benefits under the Asylum Seekers' Benefits Act (AsylbLG) from 1 August 2013.
The plaintiff lived in communal accommodation in xxx from September 2010 and received benefits under the Asylum Seekers' Benefits Act (AsylBLG) from defendant 1. Until September 25, 2013, these benefits were reduced pursuant to Section 1a of the AsylBLG. Due to the plaintiff's accommodation in communal housing, defendant 1 further reduced the benefit amount by €31.26 per month, as the plaintiff would not incur any costs for apartment maintenance and repairs or electricity. Regarding these reductions, the plaintiff's legal representative filed an objection with defendant 1 by letter dated August 23, 2013, for the period beginning August 1, 2013.
Since the first defendant failed to decide on the objection, the plaintiff filed an action for failure to act with the Kassel Social Court on December 16, 2013, against both the first defendant (the issuing authority) and the Kassel Regional Council as the appeals authority (the second defendant). By referral report dated January 13, 2014, the first defendant submitted the objection to the Kassel Regional Council (the second defendant).
The plaintiff essentially requests
that the defendant no. 2 be ordered to decide on the plaintiff's objection of 23 August 2013.
The defendants did not file a motion.
The second defendant informed the plaintiff by letter dated March 12, 2014, that he had received the plaintiff's files and expected to decide on the objection of August 23, 2013, by June 5, 2014, at the latest. By letter dated August 4, 2014, the second defendant stated that processing the objection would not be possible until September 2014 at the earliest due to the upcoming vacation of the responsible case worker. Even then, further investigations regarding the restriction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylBLG) would still need to be carried out by obtaining and evaluating the immigration file. In a letter dated August 18, 2014, the second defendant also pointed out that, given the numerous objections and actions for failure to act filed by the plaintiff's legal representative on behalf of other benefit recipients, there was a lack of personnel capacity.
For further details, including the submissions of the parties, reference is made to the contents of the court file, the court files of the parallel proceedings S 11 AY 15/13 and S 11 AY 6/14 and the administrative files of defendant no. 1 that were included therein.
REASONS FOR THE DECISION
The legal dispute could be decided by court order without an oral hearing pursuant to Section 105 Paragraph 1 Sentence 1 of the Social Courts Act (SGG), after the parties had been heard accordingly and given a reasonable period to submit their statements. Furthermore, the case does not present any particular difficulties of a factual or legal nature, and the facts are clear insofar as they are relevant to the decision.
The action for failure to act due to the lack of a decision on the objection of August 23, 2013, is admissible because the three-month time limit stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG) was observed when the action was filed on December 16, 2013. The action for failure to act is also correctly directed against both the issuing authority, Defendant 1, and the competent appeals authority, Defendant 2. This is because, according to Section 85 Paragraph 2 Sentence 1 No. 1 of the SGG, if the issuing authority, here Defendant 1, fails to remedy the objection, the next higher authority, here Defendant 2, must issue a decision on the objection. However, when the action was filed on December 16, 2013, Defendant 1 had neither remedied the objection of August 23, 2013, nor had Defendant 2 issued a decision on the objection. Rather, the defendant no. 1 only handed over the objection documents to the defendant no. 2 on January 13, 2014, after he had decided not to remedy the objection.
The action for failure to act is also well-founded. Neither the transfer of the objection proceedings from defendant 1 to defendant 2 after the action was filed, nor the failure of defendant 2 to decide on the objection to this day, constitutes a sufficient reason within the meaning of Section 88 Paragraph 1 Sentence 2 of the Social Court Act (SGG). Neither the alleged need for defendant 2 to obtain the immigration files, nor the claimed staff shortage due to numerous objections and actions for failure to act filed by the plaintiff's legal representative on behalf of other benefit recipients, nor the other staff shortages mentioned at defendant 2 are sufficient to provide a plausible explanation for the failure to decide on the objection of August 23, 2013. The defendants have failed to comply with the guarantees of effective legal protection applicable to the plaintiff under Article 19 Paragraph 4 of the Basic Law (GG) and his right to a decision within a reasonable time pursuant to Article 6 Paragraph 1 of the European Convention on Human Rights (ECHR). This applies in particular to defendant no. 2 after more than eight months have elapsed since the filing of the lawsuit. The deadline now set for the defendant by this decision also takes into account that no justifiable reasons for a further delay are apparent and underlines the plaintiff's right to effective legal protection.
The decision on costs is based on Section 193 of the Social Court Act (SGG) and takes into account the fact that the defendant no. 1 only forwarded the objection procedure to the competent objection authority, the defendant no. 2, weeks after the action for failure to act was filed, and that the latter has not decided on the objection to this day without any objectively justifiable reason.
The value of the subject matter of the appeal, which is €750.00, is not reached in this case. The disputed reduction in benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylBLG) for the period from August 2013 to September 25, 2013, and the further monthly reductions of €31.26, even when extrapolated to a full year, amount to less than €500.00 and is therefore not below the threshold for the admissibility of an appeal under Section 143 of the Social Court Act (SGG). The court finds no grounds for granting leave to appeal under Section 144 of the Social Court Act (SGG), and therefore does not admit the appeal.
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