In the legal dispute
1. xxx
2. xxx
3. xxx
– Plaintiffs and Appellants –
4. xxx
– Plaintiff –
Legal representative:
for 1-4: Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District, xxx
– Defendant and Respondent –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on September 23, 2016 in Celle through Judges xxx, xxx and xxx:
Upon the appeal of plaintiffs 1 to 3, the appeal against the judgment of the Hildesheim Social Court of April 8, 2016 is admitted.
REASONS
I.
Plaintiffs 1 to 3 are challenging the refusal to grant leave to appeal in the judgment of the Social Court (SG) Hildesheim of April 8, 2016, which dismissed the action seeking interest on a back payment of benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The plaintiffs filed a lawsuit with the Social Court on August 14, 2013, challenging the rejection of a review application based on Section 44 of the German Social Code, Book X (SGB X). Their application sought retroactive payment of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 2009 to December 2010 (- S 42 AY 86/13 -). They argued that higher accommodation costs should have been taken into account. In these proceedings, the defendant, by letter dated January 20, 2015, issued an acknowledgment of the claim, which the plaintiffs accepted to settle the dispute. According to this acknowledgment, accommodation costs for the period in question were covered in accordance with "Section 12 of the Housing Benefit Act (WoGG) plus 10%". In accordance with this acknowledgment, the defendant granted the plaintiffs a back payment of €1,045.00 by decision dated March 11, 2015. The defendant rejected the application, submitted by letter dated March 13, 2015, to pay interest on the back payment, by decision dated December 2, 2015, as amended by the appeal decision dated December 10, 2015.
On January 4, 2016, the plaintiffs filed a lawsuit with the Social Court (SG). They argued that the back payment should accrue interest pursuant to Section 44 of the German Social Code, Book I (SGB I) or Sections 288 and 291 of the German Civil Code (BGB). In its judgment of April 8, 2016, the Social Court granted the claim of plaintiff no. 4 and dismissed the remainder of the claim. The court held that plaintiff no. 4 had been entitled to analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) during the period in dispute; therefore, the back payment attributable to her was subject to interest in accordance with Section 44 of the SGB I. In contrast, the court found no legal basis for a claim for interest by plaintiffs nos. 1 to 3, who had received benefits pursuant to Section 3 of the AsylbLG. Section 44 of the SGB I was not applicable, even by analogy. Interest pursuant to Sections 288 and 291 of the BGB was only applicable in proceedings under Section 197a of the German Social Courts Act (SGG), to which the present proceedings did not belong. The Social Court rejected the appeal.
The appeal on points of law filed on May 20, 2016, by plaintiffs 1 to 3 is directed against the judgment served on April 20, 2016. They are of the opinion that the legal question of whether Section 44 of the German Social Code, Book I (SGB I) is applicable, at least by analogy, to back payments under the Asylum Seekers' Benefits Act (AsylbLG) is of fundamental importance.
II.
The appeal against the refusal of leave to appeal was filed in due form and time (§ 145 para. 1 sentence 2 SGG) and is also admissible in all other respects. In particular, it is permissible (§ 145 para. 1 sentence 1 SGG), because the appeal against the judgment of April 20, 2016, requires leave to appeal. The value of the subject matter of the appeal does not exceed €750.00 (§ 144 para. 1 sentence 1 no. 1 SGG). Furthermore, the legal dispute does not concern recurring or ongoing benefits for more than one year (§ 144 para. 1 sentence 2 SGG), even though the asserted claim for interest relates to benefits for more than one year (Federal Social Court, decision of January 28, 1999 – B 12 KR 51/98 B – juris para. 7).
The appeal is also well-founded. There is a ground for appeal; the case is of fundamental importance (§ 144 para. 2 no. 1 SGG).
A legal matter is of fundamental importance if it affects the public interest in uniform jurisprudence and the further development of the law. It must be expected that the desired decision can lead to maintaining the unity of the law or promoting its further development. The legal question raised must require and be capable of clarification (Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, 11th edition 2014, § 144 para. 28 with further references).
The legal question of whether benefits under the Asylum Seekers' Benefits Act (AsylbLG) are subject to interest in the case of back payments requires clarification. However, Section 44 of the German Social Code, Book I (SGB I) is not directly applicable, as the AsylbLG is not part of the SGB (cf. Section 68 SGB I) and Section 44 SGB I is not among the provisions whose application is mandated by law within the framework of the AsylbLG (cf. Section 9 Paragraph 3 AsylbLG in the version applicable since March 1, 2015; Section 7 Paragraph 4 AsylbLG in the version applicable until February 28, 2015). An analogous application of Section 44 SGB I is also unlikely due to the absence of an unintended regulatory gap (cf. regarding the requirements for an analogy: Federal Social Court (BSG), Judgment of July 23, 2015 – B 8 SO 7/14 R – juris para. 16). However, it is unclear whether a claim for interest can arise from the analogous application of Section 291 of the German Civil Code (BGB). The Federal Social Court (BSG) has not yet ruled on this legal question, as far as can be ascertained. Several appeals on this matter ended with the parties reaching a settlement agreement on the payment of statutory interest (Section 291 BGB) (BSG, Report No. 53/13 of October 30, 2013, concerning cases B 7 AY 8/12 R, B 7 AY 1/13 R, and B 7 AY 2/13 R). Furthermore, the BSG assumes that, at most, a claim for statutory interest can exist within the scope of application of the Asylum Seekers' Benefits Act (AsylbLG) (BSG, Judgment of October 30, 2013 – B 7 AY 2/12 R – juris para. 31), but the legal situation in this respect has not yet been clarified. In particular, it is not apparent that a claim for interest on arrears is now recognized in social court case law (rejecting a claim for interest: Schleswig-Holsteinisches LSG, judgment of November 26, 2014 – L 9 AY 70/12 – juris Rn. 61).
The legal question presented is likely to be relevant to the decision in the present proceedings and therefore capable of being clarified.
With the admission of the appeal, the complaint procedure is continued as an appeal procedure; there is no need to file an appeal (Section 145 Paragraph 5 of the Social Court Act).
The decision on costs remains reserved for the appeal proceedings (Leitherer, aaO, § 145 Rn. 10).
This decision is final and cannot be appealed (§ 177 SGG).
