DECISION
In the legal dispute
xxx,
– applicant –
legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
– Respondent –
The 42nd Chamber of the Social Court of Hildesheim decided on October 20, 2014, through Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, full basic benefits pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from August 13, 2014, onwards, until a final and binding decision is reached on his claim S 42 AY 32/14.
The respondent must reimburse the applicant for his necessary extrajudicial costs.
The applicant is granted legal aid without payment of installments from the date of application, with the appointment of lawyer Adam from Göttingen.
REASONS
The application for an interim injunction against the respondent, received by the Social Court on 13 August 2014, requesting that the respondent be temporarily obligated to grant the adult applicant, who lives and manages a household with his mother and siblings, full basic benefits in accordance with Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) according to the standard benefit level 1, is admissible and well-founded.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The applicant has credibly demonstrated a claim to full basic benefits – granted in a constitutionally compliant amount – pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) applying the standard benefit level 1, since the benefit award issued by the respondent, applying the standard benefit level 3 (= 80% of the basic benefits), is, in the opinion of the adjudicating chamber, contrary to Article 3 of the Basic Law and is therefore unlawful.
The consumption expenditures of the reference households reported in the Income and Expenditure Survey (EVS) form the basis for determining six standard benefit levels (§ 8 para. 1 RBEG and Annex to § 28 SGB XII). These levels apply to the benefit system of SGB XII and, correspondingly, also to that of the Asylum Seekers' Benefits Act (AsylbLG). Standard benefit level 1 for single or single-parent adults living in their own household was determined from the expenditures of single-person households; standard benefit level 2 for adults living as a couple is calculated as 90%, and standard benefit level 3 for adults who neither live in their own household nor manage their finances as a couple is calculated as 80% of standard benefit level 1 (see Bundestag printed matter 17/3404, p. 90).
The claim asserted by the applicant in the expedited proceedings is, in the opinion of the adjudicating chamber, no longer precluded by the case law of the 8th Senate of the Higher Social Court of Lower Saxony-Bremen (see decision of April 8, 2014, L 8 AY 57/13 B ER, Juris). There, the Senate had ruled that, under the Asylum Seekers' Benefits Act (AsylbLG), the calculation of benefits according to standard benefit level 3 is not subject to further judicial review, at least in preliminary injunction proceedings. Whether such a calculation of benefits in general, and in the benefit system under the AsylbLG in particular, complies with the requirements of the Federal Constitutional Court's case law, which the Social Court of Detmold denied in its judgment of May 23, 2013 – S 16 SO 27/13 –, Juris, remains a matter for clarification in any subsequent main proceedings.
The Federal Social Court (BSG) has now ruled on the appeal under file number 8 SO 14/13 R, on July 23, 2014. According to the hearing report of July 24, 2014, which was known to the parties, the BSG answered the decisive legal question as follows:
"Contrary to the defendant's view, the application of standard benefit level 1 for subsistence benefits (§ 27a para. 3 SGB XII in conjunction with the appendix to § 28 SGB XII) is not automatically precluded for the deceased due to the lack of her own household. Rather, it must be assumed in principle that, since January 1, 2011, adults who share a household without being partners (spouse, registered civil partner, or partner in a similar cohabiting relationship) are each entitled to the standard benefit level 1. Any other solution would violate the principle of equality under Article 3 para. 1 of the Basic Law, because then each person living together would receive a standard benefit of only 80%, without at least one person – as in other cohabitation situations – falling under standard benefit level 1 (100%)." In this respect, the legislator abandoned the previous model of the head of household with effect from January 1, 2011. For classification in standard benefit level 1, it is therefore not decisive that a household is maintained independently, but rather that a shared household is maintained with another person who is not the partner. Even in this scenario, a separate household is not assumed.
Thus, the determining factor for shared household management when adults live together cannot be the individual ability of the household members to manage a household independently without support from another; rather, the decisive factor is that the persons living together participate in managing the household to the extent of their physical and mental capabilities. Otherwise, people with limitations in their physical, mental, and emotional functions would be unfairly disadvantaged. If they required external support in the form of outpatient care, this would even lead to the unjustifiable assumption that none of these disabled persons maintain their own household.
In addition, the first half-sentence of Section 39 states: The German Social Code, Book XII (SGB XII), presumes that individuals living together maintain a shared household. This presumption, which is not excluded by Section 43 Paragraph 1 Sentence 2 or Section 39 Sentence 3 No. 2 of the SGB XII (non-applicability of partial needs coverage in a shared household for basic income support or when caring for a disabled or dependent person in a shared household), is not rebutted simply because one person contributes less to household management than others, even if they lack the necessary skills for comprehensive household management. Only if there were no independent participation whatsoever or only a completely insignificant contribution would a household not be considered to be maintained. However, the burden of proof for this lies with the social welfare agency. Therefore, standard benefit level 3 has only minor practical significance for cash benefits; however, its application—apart from its use as a calculation item in inpatient care benefits—is not entirely precluded.
A decision on the constitutionality of standard benefit level 3 was therefore unnecessary.
Since the applicant does not live with his mother and siblings as a spouse, registered partner, or in a cohabiting relationship similar to marriage or registered partnership, he is entitled to benefits at standard benefit level 1. The respondent's objection that the full text of the Federal Social Court's (BSG) decision is not yet available is, in the opinion of the court, unfounded, as the BSG's legal opinion on the disputed legal issue is already readily apparent from the hearing report. It is equally irrelevant that the decision of the Social Court of Detmold, which is the subject of the appeal, was not upheld on the merits, as this occurred for legal reasons unrelated to the relevant legal issue here.
The fact that the Federal Constitutional Court has not yet made a final ruling on the scope of application of standard benefit level 3 does not prevent the Chamber from reaching its decision. In its decision of July 23, 2014 – 1 BvL 10/12, 1 BvL 12/12, 1 BvR 1691/13 – (juris, para. 100), issued on the same day as the aforementioned Federal Social Court decision, the Federal Constitutional Court stated the following regarding standard benefit levels:
“cc) Likewise, it is not constitutionally objectionable that the legislature uses the standard benefit rate for single-person households, and thus standard benefit rate level 1, as the starting point for determining the amount of standard benefit payments for adults who share a household with other adults also entitled to benefits, i.e., standard benefit rate level 2 for two adult persons entitled to benefits as spouses, civil partners, or in a cohabiting relationship similar to marriage or civil partnership (§ 8 para. 1 no. 2 RBEG). The Federal Constitutional Court has already ruled on this issue of benefit units, stating that the needs of an additional adult may be derived at a rate of 80% from the statistically determined needs of single persons (cf. BVerfGE 125, 175
Accordingly, the determination of the standard allowance for cohabiting and jointly managing adults at 90% of the standard allowance applicable to a single person under the German Social Code, Book II (SGB II), is not objectionable.
This jurisprudence of the Federal Constitutional Court therefore does not contradict the opinion of the Federal Social Court.
The respondent's further argument, that the Federal Social Court's (BSG) legal interpretation violates Article 6 Paragraph 1 of the Basic Law (GG) because it treats unmarried cohabiting partners more favorably than married ones, is also unconvincing. This is because the alleged preferential treatment is only superficial; the additional benefits are offset by higher needs.
Pursuant to Section 73a of the Social Courts Act (SGG) in conjunction with Section 114 Sentence 1 of the Code of Civil Procedure (ZPO), legal aid is to be granted to anyone who, based on their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, provided that the intended legal action offers sufficient prospects of success and does not appear frivolous. Both of these conditions are met here.
The following is information on legal remedies.
