VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant –
The 12th Chamber of the Social Court of Hildesheim, in the oral proceedings of September 22, 2014, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
The defendant is ordered, by amending the decision of 01.06.2011 as modified by the appeal decision of 22.09.2011, to reimburse the plaintiff in full for the costs of the appeal proceedings against the decision of 26.03.2010 and to declare the involvement of a representative necessary.
The defendant shall reimburse the plaintiff for half of her necessary extrajudicial costs.
DISPUTES
The subject of the legal dispute is the reimbursement of the costs of an objection procedure.
The plaintiff was receiving benefits from the defendant to secure her livelihood under Book Two of the German Social Code (SGB II). On March 2, 2010, the plaintiff appeared in person before the defendant and informed him that she intended to move in with her boyfriend on April 1, 2010. The new landlord required a security deposit of €981.00. Since they were unable to pay the full amount, she requested a loan. They were prepared to repay the loan in monthly installments of €50.00 or have the amount deducted from their benefits.
By decision dated March 26, 2010, the defendant granted the plaintiff the requested loan in the total amount of €981.00. It was further stated that €50.00 per month would be deducted from her benefits under Book II of the German Social Code (SGB II) starting in April 2010. By decision dated March 19, 2010, the defendant granted the plaintiff and her partner benefits under Book II of the German Social Code (SGB II) for the period from April 1 to September 30, 2010. This decision also indicated that €50.00 per month would be deducted for loan repayment starting in April 2010. On April 13, 2010, the defendant issued two further amended decisions for the periods from April 1 to June 30, 2010, and from May 1 to June 30, 2010.
The plaintiff's authorized representative filed an objection on April 9, 2010, against the loan decision of March 26, 2010. He argued that the loan should be granted without a repayment agreement. Furthermore, on April 15, 2010, he filed an objection on behalf of the plaintiff against the decision of April 13, 2010, for the period from May 1 to June 30, 2010. This decision further stipulated that €50.00 would be deducted monthly from the loan for the security deposit.
By letter dated April 14, 2010, the defendant (represented by the city of xxx) informed the plaintiff's attorney that the objection of April 6, 2010, could not be granted and was therefore being referred to the Job Center as the competent authority. Further deductions would be suspended immediately until a legally binding decision was reached in this matter.
In a letter dated April 19, 2010, the plaintiff's representative stated that he considered the letter dated April 14, 2010 to be a remedy for his objection dated April 15, 2010, and requested a decision on the costs of the objection proceedings.
By amended decision dated July 6, 2010, the defendant granted the plaintiff the requested rental deposit as an interest-free and repayment-free loan. The agreement regarding the repayment of the rental deposit granted as a loan was subsequently revoked following an objection.
In a letter dated July 7, 2010, the plaintiff's representative stated that he considered the decision of July 6, 2010, to be a remedy regarding the objection of April 6, 2010, and also requested a decision on the costs in this respect.
Subsequently, on June 1, 2011, the defendant issued a cost assessment notice rejecting the assumption of costs for the objection proceedings. The plaintiff had been granted the requested loan by notice dated March 26, 2010, and it had been stipulated, in accordance with the agreement, that €50.00 per month would be deducted from her SGB II benefits starting in April 2010. This was stipulated in the amended notice dated April 13, 2010. The objection of April 15, 2010, was considered a revocation of the loan agreement. The objection to the loan notice of March 26, 2010, was unsuccessful because it was not contested. The objection to the amended notice of April 13, 2010, falls under Section 86 of the Social Court Act (SGG), as it merely implemented the loan notice of March 26, 2010, regarding the deduction.
The plaintiff's authorized representative filed two objections on June 6, 2011, against the decision of June 1, 2011: one concerning the decision of March 26, 2010, and the other concerning the decision of April 13, 2010. The objections were, of course, successful. The expenses incurred were to be reimbursed. However, these objections were rejected as unfounded by a decision dated September 22, 2011.
The plaintiff, represented by counsel, filed a lawsuit with the Hildesheim Social Court on October 19, 2011, initially seeking reimbursement of the costs of the two objection proceedings. During the oral hearing, the plaintiff's attorney, upon the court's suggestion, stated that the plaintiff was now only seeking a decision regarding the objection proceedings concerning the decision of March 26, 2010.
The plaintiff requests
that the defendant, by amending the decision of 01.06.2011 as modified by the appeal decision of 22.09.2011, be ordered to reimburse the plaintiff in full for the costs of the appeal proceedings against the decision of 26.03.2010 and to declare the involvement of a representative necessary.
The defendant requests
that the action be dismissed.
Due to the plaintiff's new factual submissions in the objection proceedings, the defendant granted the plaintiff's request for an objection and discontinued the objection proceedings as settled.
Regarding further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative records of the defendant.
REASONS FOR THE DECISION
The action is admissible and well-founded. Pursuant to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the plaintiff is entitled to reimbursement of the claimed costs of the objection proceedings insofar as the objection proceedings against the decision of March 26, 2010 are concerned.
According to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the legal entity whose authority issued the contested administrative act must reimburse the person who filed an objection for the expenses necessary for the appropriate pursuit or defense of their legal rights, insofar as the objection is successful. The requirements of this provision are met in the present case insofar as the objection against the decision of March 26, 2010, is concerned, because the plaintiff's objection against the decision of March 26, 2010, as amended by the amending decision of July 6, 2010, was successful within the meaning of this provision.
In principle, an objection is successful within the meaning of the law if the authority grants it (see judgment of the Federal Social Court – BSG – of July 21, 1992 – 4 RA 20/91 = SozR 3-1300 § 63 No. 3 with further references; Roos in: von Wulffen, SGB X, 7th ed., § 63 para. 18). Accordingly, it is irrelevant what the objector has put forward to justify their appeal and what reasons led to the granting of the objection (see judgment of the Federal Social Court of October 8, 1987 – 9a RVs 10/87 –, juris).
The defendant initially granted the plaintiff the requested loan, simultaneously imposing a corresponding repayment obligation. The plaintiff, through her authorized representative, filed an objection to this on April 9, 2010. During the ongoing objection proceedings, the defendant, by decision dated July 6, 2010, revoked the original loan approval and granted the plaintiff the requested loan interest-free and without repayment obligations. The plaintiff's request was thus fully granted, and the objection was resolved.
To the extent that the defendant argues there is no causal link between the objection and the granting of the interest-only loan because the plaintiff only declared during the objection proceedings that she no longer wished to have repayments made from her current benefits and only thereby revoked her waiver, this argument cannot be accepted. While the plaintiff's declaration was indeed a waiver regarding the withholding of her current benefits under the German Social Code, Book II (SGB II), she simultaneously declared her desire for an interest-only loan. This loan was granted to her by the defendant following her objection. Contrary to the defendant's view, the decision of July 6, 2010, cannot be interpreted merely as implementing the waiver. In principle, according to Section 46 Paragraph 1 of the German Social Code, Book I (SGB I), claims to social benefits can be waived by submitting a written declaration to the benefit provider. This waiver can be revoked at any time with future effect. However, the defendant not only modified the deductions from the plaintiff's future benefits under the German Social Code, Book II (SGB II), but also revoked the original loan and granted an interest-free and repayment-free loan. It is therefore essential to distinguish this from the initial granting of a loan and the subsequent monthly deductions from ongoing benefits.
Based on the foregoing considerations, the plaintiff is entitled to reimbursement of the expenses necessary for the appropriate pursuit of her legal rights. Pursuant to Section 63 Paragraph 2, this also includes the fees and expenses of a lawyer in the preliminary proceedings, if their involvement was necessary. The necessity of such involvement is to be determined within the framework of the present cost decision (Section 63 Paragraph 3 Sentence 2 of the German Social Code, Book X).
The necessity of retaining a lawyer in the preliminary proceedings must be assessed based on whether the appellant, at the time of retaining their representative, could reasonably consider it necessary to be supported by a lawyer in the preliminary proceedings. This assessment must be made in each individual case from the appellant's subjective ex-ante perspective. This is the case when complex factual or legal issues are involved and a citizen with the appellant's level of education and experience would therefore have reasonably sought legal counsel. Furthermore, the severity of the infringement on the appellant's (fundamental) rights, as well as their personal circumstances, such as their state of health, place of residence, family situation, etc., must be taken into account in the evaluation.
In the area of loan approval and the question of whether to withhold benefits from current payments under the German Social Code, Book II (SGB II), it must be considered that the dispute usually concerns benefits intended to secure the minimum subsistence level as defined in Article 1 of the Basic Law in conjunction with Article 20 of the Basic Law. If these benefits are unlawfully reduced, this often represents a particularly important concern for the appellant, depending, of course, on the severity of the specific infringement. Furthermore, in the context of SGB II, it must be taken into account that both the legal framework and the benefit notices are often difficult for an appellant without legal training to understand. Considering these factors, the necessity of an appeal must be affirmed in this case because the issue of loan approval and the obligation to repay the loan was disputed and difficult for a layperson to comprehend.
The decision on costs is based on Section 193 of the Social Court Act (SGG) and takes into account that the plaintiff initially also sought reimbursement of costs for the objection proceedings against the decision of April 13, 2010. She did not pursue this claim further during the oral hearing.
The following is information on legal remedies.
