DECISION
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant –
The 9th Chamber of the Hildesheim Social Court decided on April 1, 2015, through Judge xxx of the Social Court:
The defendant must reimburse the plaintiff for his necessary extrajudicial costs.
REASONS
I.
The parties initially disputed the plaintiff's claim for payment of benefits under the German Social Code, Book XII (SGB XII). The parties unanimously declared the proceedings settled.
II.
Pursuant to Section 193 Paragraph 1 of the Social Courts Act, the court must, upon application, decide by order whether and to what extent the parties are to reimburse each other's costs if the proceedings – as in this case – are terminated other than by judgment.
The court must exercise its discretion in deciding on costs, taking into account primarily the likely outcome of the proceedings, as assessed based on the facts and legal arguments as they stood up to the point of settlement. Further criteria for the cost decision include, in particular, the outcome of the proceedings, the circumstances that led to the filing of the lawsuit, and the circumstances that led to the settlement of the dispute.
In the present case, full reimbursement of costs by the defendant is justified. This is because the defendant would most likely have lost in the event of a contested decision.
According to Section 66 Paragraph 3 of the German Social Code, Book I (SGB I), social benefits may only be denied due to a lack of cooperation after the beneficiary has been notified in writing of this consequence and has failed to comply with their duty to cooperate within a reasonable period set for them. The prior notification stipulated in Section 66 Paragraph 3 SGB I is a mandatory prerequisite for denial. It is intended to ensure that the person concerned, aware of the potential consequences, reconsiders their position and is not surprised by the subsequent decision under Section 66 SGB I. Therefore, as the Federal Social Court (BSG) has already ruled, the notification may not be limited to a repetition of the wording of the law or general instructions (BSG SozR 4100 § 132 No. 1). Rather, he must, based on the decision-making options granted to the benefit provider by Section 66 Paragraphs 1 and 2 of the German Social Code, Book I (SGB I), clearly and specifically identify the decision that is intended in the individual case if the person concerned does not comply with the request for cooperation within the set deadline (cf. BSG, loc. cit., with further references).
A benefit decision, such as the defendant's decision at issue here, which is based on a lack of cooperation, does not contain a ruling on the substantive legal requirements of the asserted claim and is only effective until the cooperation is provided. This must be stated in the operative part of the decision (see Baden-Württemberg Higher Social Court, judgment of May 16, 1990, file number: L 1 J 1789/89, Juris). The reason for this is the different degree of legal force. Unlike the rejection of a benefit due to the absence of a prerequisite for entitlement, a refusal is expressly limited "until the cooperation is provided" according to Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), and, because the benefit provider can subsequently grant denied benefits after cooperation has been provided (Section 67 SGB I), it is also provisional for the period until the cooperation is provided. In the decision at issue here, however, the application is rejected without any such limitation. The defendant has thus exceeded its discretion.
This decision is not subject to appeal pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
