VERDICT
In the legal dispute
1. xxx,
2. xxx,
represented by
xxx
– applicant –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Jobcenter Northeim, xxx,
– respondent –
The 12th Chamber of the Hildesheim Social Court recognized the following at the oral hearing on October 21, 2016 by the social court judge xxx and the honorary judges xxx and xxx:
1. By modifying the objection notices of March 9, 2012 and March 12, 2012, the defendant is obliged to reimburse the plaintiffs 100% of the necessary out-of-court costs for the objection proceedings regarding the objection of December 17, 2011. The involvement of the legal representative in the preliminary proceedings is declared necessary.
2. The defendant must reimburse the plaintiffs' necessary out-of-court costs for this lawsuit.
ACT
The parties involved are in dispute over the reimbursement of the legal fees incurred by the plaintiffs in the objection proceedings (objection dated December 17, 2011).
In the period from December 1, 2011 to May 31, 2012, the plaintiffs received basic security benefits for job seekers in accordance with Book II of the Social Security Code (SGB II). The first plaintiff and her underage daughter, the second plaintiff, form a community of needs.
By decision dated November 14, 2011, the defendant approved SGB II benefits for the period from December 1, 2011 to May 31, 2012. In addition to the standard requirements and the costs of accommodation, the defendant approved additional requirements for pregnant women for the month of December 2011 and additional requirements for single parents for the following months. With the change notice dated November 26, 2011, the standard requirement was adjusted for the same approval period and the exemption amount for gainful employment was recalculated from January 2012.
On December 1, 2011, plaintiff 1 gave birth to the twins xxx and xxx.
In a lawyer's letter dated December 17, 2011, the plaintiff's legal representative filed an objection against the defendant's decisions dated November 14, 2011 and November 26, 2011. There was initially no statement of objection. At the same time, an application was made to inspect the defendant's administrative files.
During the ongoing objection proceedings, the defendant issued a change notice on March 1, 2012 for the partial period from April 1, 2012 to May 31, 2012. In it, he revoked the benefit approval for this partial period in accordance with Section 48 SGB
In a legal brief dated March 7, 2012, the plaintiff's legal representative justified the objection dated December 17, 2011. To justify the objection, the attorney stated verbatim in the written statement (see page 25 of the court file):
“First of all, the costs of accommodation and heating were apparently approved at too low a level.
Your decision shows that instead of the actual costs of accommodation and heating of €475.00 per month, only €420.00 have been taken into account so far. In addition, the cancellation notice dated March 1, 2012 is probably incorrect, as Ms. xxx does not receive €750.00 in parental allowance.”
On March 9, 2012, the defendant issued a first partial remedy and objection decision and in it partially repealed the decisions of November 14, 2011, November 26, 2011 and March 1, 2012 and subsequently approved SGB II benefits. The defendant rejected the objection beyond the scope stated in the decision. At the same time, the defendant promised the plaintiffs a reimbursement of the costs of the objection proceedings in the amount of 0.3. To justify the partial remedy, the defendant stated in the objection notice that a recalculation of the benefit claims had been carried out ex officio because there had been a change in personal and economic circumstances in the period from December 2011 to February 2012. For the partial period from March 2012 to May 2012, however, there is a significantly lower claim than previously approved, which results in a partial rejection of the objection and a corresponding cost consequence. With regard to the incorrect amount of parental allowance based on the decision of March 1, 2012, it was not necessary to involve a lawyer because the plaintiffs could have determined and complained about the incorrect amount of parental allowance themselves by simply reading the decision.
With a further partial remedy and objection notice dated March 12, 2012, which, according to an accompanying letter dated March 12, 2012, was intended to replace the aforementioned partial remedy and objection notice dated March 9, 2012, the defendant corrected the calculations of the SGB II benefits for the month of March 2012 to the effect that no parental allowance receipt of €300 per month was credited towards the entitlement to benefits for this month. Otherwise, the same statements were made regarding the reimbursement of costs and the involvement of an authorized representative in the preliminary proceedings as in the partial remedy and objection decision of March 9, 2012.
On March 15, 2012, the plaintiffs filed a lawsuit against the two partial remedies and objection notices dated March 9, 2012 and March 12, 2012 before the local social court through their legal representative.
The plaintiffs are of the opinion that the cost reimbursement rate of 0.3 in the two contested notices is incomprehensible. The objection of December 17, 2011 was completely successful. The cost of accommodation was too low even without the birth of the children. Furthermore, an incorrect amount of parental allowance was also taken into account when calculating the need, which was corrected at the latest with the second partial remedy and objection decision dated March 12, 2012.
The plaintiffs request that
the defendant be obliged, by modifying the objection notices of March 9, 2012 and March 12, 2012, to reimburse the plaintiffs 100% of the necessary out-of-court costs of the objection proceedings to the objection of December 17, 2011 and to involve the plaintiffs' legal representative for the present case Declare objection proceedings necessary.
The defendant requests
that the lawsuit be dismissed.
He considers the contested decision to be legal and first refers to his justifications in the two partial remedies and objection notices of March 9, 2012 and March 12, 2012. In addition, he reiterates his legal opinion that the objection of the plaintiff's legal representative on December 17, 2011 was not causal for the partial remedial decisions of March 9, 2012 and March 12, 2012. The recalculation of the SGB II benefits in the notices of March 9, 2012 and March 12, 2012 was made solely due to a change in personal and economic circumstances, in particular due to the birth of the twins, especially since the objection of December 17, 2011 was initially not justified had been. The temporal connection between the filing of the objection and the partial remedy that was provided later - after the actual circumstances changed - speaks against the assumption of causality. Furthermore, to the extent that the plaintiffs also complained about inadequate KdU benefits in the period before December 1, 2011, this is irrelevant since only the legal situation from December 1, 2011 was the subject of dispute in the objection proceedings. With regard to the parental allowance and the specific amount taken into account, the plaintiff's legal representative only made a "correction", which is also not sufficient to establish causality of the contradiction.
In its decision dated September 1, 2014, the court rejected the plaintiffs' application for legal aid and stated that the plaintiffs were no longer burdened because they had received the benefits they sought in full. The court rejected the hearing complaint from the plaintiffs' attorney against the PKH rejection in its order of December 18, 2014 and added that due to the lack of complaint in the main case, there was no longer any complaint for a higher cost ratio.
For further details of the facts and the arguments of those involved, reference is made to the court file and the defendant's administrative files cited.
REASONS FOR DECISION
The admissible action is also founded on the merits.
The plaintiffs are entitled to full reimbursement of the necessary extrajudicial costs incurred in the objection proceedings to the decisions of November 14, 2011, November 26, 2011 and March 1, 2012 in accordance with Section 63 Paragraph 1 Sentence 1 SGB X (see 1.). The involvement of her legal representative in the entire objection procedure was also declared necessary in accordance with Section 63 Para. 2 SGB X (see 2.).
In detail:
1.
According to Section 63 Paragraph 1 Sentence 1 SGB The facts of this provision are fulfilled in the present case because the objection of the plaintiff's attorney of December 17, 2011 against the decisions of November 14, 2011, November 26, 2011 and March 1, 2012 was completely successful within the meaning of this provision.
In principle, an objection is successful in the sense of the law if the authority grants it (cf. 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, 8th edition, § 63 marginal number 18). According to this, it is irrelevant what the opponent submitted to justify his appeal and what reasons led to the objection being upheld, provided that there is at least a contributory cause of the objection (cf. judgment of the BSG of October 8, 1987 - 9a RVs 10/87 -, juris).
According to the established case law of the Federal Social Court, an objection can only no longer be considered successful within the meaning of Section 63 SGB the objection, but rather another circumstance - for example the catching up on obligations to cooperate - is attributable (cf. judgments of the BSG of July 21, 1992 ibid; of December 18, 2001 - B 12 KR 42/00 R - and of March 25, 2004 — B 12 KR 1/03 R = SozR 4-1300 § 63 No. 1).
Taking these principles into account, the objection of the plaintiff's attorney dated December 17, 2011 was at least partly responsible for the defendant's two partial remedies and objection notices of March 9, 2012 and March 12, 2012 and was therefore successful within the meaning of Section 63 SGB X.
The causality in the form of sufficient co-causation exists both in terms of content (see a.) and in time (see b.):
In detail:
a)
According to the wording in the reasons for the objection dated March 7, 2012 (see page 25 of the administrative file), the plaintiff's legal representative only complained about the insufficient approval of accommodation and heating costs and stated that instead of the actually paid rent of 475, 00 € per month, only a monthly rent of € 420.00 was taken into account by the defendant in the contested benefit approvals of November 14, 2011 and November 26, 2011. Contrary to the defendant's legal opinion, it cannot be inferred from the reasons for the objection that a higher allowance for accommodation and heating costs is being claimed due to an incorrectly determined concept of the appropriateness of KdU services. The reasons for the objection dated March 7, 2012 do not contain any legal justification for what the plaintiffs consider to be insufficient approval of KdU benefits. It is just as conceivable that the plaintiffs claimed higher KdU benefits at the time of the objection proceedings simply because of the birth of the twins on December 1, 2011.
The plaintiffs' objection in the objection proceedings was simply that KdU benefits were not approved enough. However, the defendant completely followed this objection in the two challenged partial remedies and objection notices dated March 9, 2012 and March 12, 2012. Even if the defendant wanted to correct the earlier benefit approvals due to the birth of the twins on December 1, 2011, based on his own investigation, this does not change the co-causation of the objection of December 17, 2011 on the later remedial decisions. In view of the clear wording of the reasons for the objection, the court cannot understand why the objection should not have been causal and successful for the plaintiffs in this respect.
The assessment of whether the objection of December 17, 2011 was at least partly responsible for the partial remedies of March 9, 2012 and March 12, 2012 depends solely on the status of the facts during the period of the objection proceedings. In particular, it is irrelevant whether the plaintiff's legal representative later, namely as part of the statement of claim dated March 15, 2012, not only complained about the birth of the twins but also the illegality of the approved KdU benefits in the contested decisions due to an incorrectly determined concept of the appropriateness of accommodation costs (see page 3 of the statement of claim dated March 15, 2012).
As far as the insufficient approval of SGB II benefits is concerned as a result of an incorrect amount of parental allowance, the statements made by the plaintiff's attorney in the statement of objection dated March 7, 2012 are not a mere "correction", but rather a significant statement of facts was at least partly responsible for the correction of the benefit calculation with regard to the child benefit payments received by the plaintiffs in the partial remedy and objection decisions of March 9, 2012 and March 12, 2012. If one were to follow the defendant's legal opinion, it would hardly be possible in practice to distinguish between a mere irrelevant "correction" and a significant and causal statement of facts in the objection proceedings. In view of the fact that, according to case law, it should be irrelevant what the opponent has put forward in support of his appeal, as long as only a certain degree of contributory causation is ensured and the request of the objector is granted, excessive demands must not be placed on opposing factual presentations in one Grounds for objection can be raised for the question of contributory causation in a remedial decision.
b)
A causality between the objection of December 17, 2011 and the later partial remedies and objection notices of March 9, 2012 and March 12, 2012 can also be determined in terms of time:
Although the two twins xxx and xxx were born on December 1st, 2011 and a change had therefore occurred in the personal and actual circumstances of the plaintiffs, the defendant initially filed an objection on December 17th, 2011 (which initially did not contain any justification). The change notice of March 1, 2012 did not take this change into account, but on the contrary completely denied benefits for the period from April 2012 due to the plaintiffs' claims to parental allowance and child benefit. It was only after receipt of the reasons for the objection dated March 7, 2012, which complained about insufficient approval of KdU benefits and incorrect crediting of parental allowance, that the defendant made a first partial remedy two days later, namely on March 9, 2012, and then subsequently On March 12, 2012, we were able to provide a further partial remedy and implemented it.
To the extent that the defendant attempted to neglect this chronological sequence at the hearing on October 21, 2016 by claiming that he was only informed of the birth of the children very late due to the late submission of the birth certificates, it must be countered that the defendant was obviously already in the benefit approval of November 14, 2011 had at least partially captured the actual situation of the plaintiffs when he approved additional requirements for pregnant women for the month of December 2011 and subsequently, from January 2012, additional requirements for single parents. In addition, the defendant was informed of the birth of the twins promptly, even if the birth certificates were delayed. Regardless of this, the defendant could and should have determined the change in the actual circumstances ex officio.
2.
Finally, the involvement of legal counsel in the objection proceedings was also fully declared necessary.
According to social court case law and literature on Section 63 Paragraph 2 SGB The question of whether involvement should be declared necessary is also determined by the personal knowledge and legal knowledge of the person concerned, which must be assessed from the perspective of a reasonable party. As a rule, the involvement of a legal representative should be declared necessary if there are no special circumstances that make the involvement appear unnecessary (see Roos, in: von Wulffen/Schütze, Commentary on SGB X, 8th edition 2014 , § 63 SGB X, Rn. 26).
Based on these premises, the Chamber considers the involvement of the legal representative in the preliminary proceedings against the decisions of November 14, 2011, November 26, 2011 and March 1, 2012 to be completely necessary:
The two later partial remedial and objection decisions of March 9, 2012 and March 12, 2012 were based on several factual and legal arguments: On the one hand, the insufficient approval of KdU benefits and, on the other hand, the consideration of an incorrect amount of parental allowance in the challenged decisions were criticized. In view of the fact that the authority initially did not indicate that it would automatically take the birth of the children into account in the benefit calculations in a timely manner (cf. the court's statements under 1. - b.), the involvement of the legal representative was necessary the plaintiff and in particular the reasons for the objection dated March 7, 2012 are necessary in order to initiate the partial remedial decisions made by the defendant later. Given the further background that case law and literature on Section 63 Paragraph 2 SGB The court also assumes that it is necessary to hire a lawyer. Special exceptional reasons and a lack of need to involve a lawyer only exist in cases in which the person concerned was entitled to rely on the authority to correct itself because the authority had already promised in its decisions the possibility of later correction after submitting documents (cf. in this regard Judgment of the Hildesheim Social Court of May 25, 2016 - S 12 SO 117/14, not yet published).
However, the defendant had by no means promised the plaintiffs the possibility of correction. Furthermore, the plaintiffs did not just have to submit bank statements or other actual documents and could then hope for an immediate, timely correction of the benefit approvals ex officio (see LSG Niedersachsen-Bremen, decision of May 29, 2015 - L 8 SO 139/14 B, page 5). Both the content and the temporal connection between the reasons for the objection and the partial remedies of March 9, 2012 and March 12, 2012 indicate that it was necessary to involve a lawyer.
The complaint was therefore upheld in its entirety.
The cost decision is based on Section 193 of the Social Court Act (SGG).
The appeal against this judgment requires approval in accordance with Section 144 Paragraph 1 Sentence 1 No. 1 SGG because the value of the subject of the appeal, namely the plaintiff's costs in the appeal proceedings, will not exceed the amount of 750.00 euros. The appeal was not admissible because neither the case has any fundamental significance nor does the judgment deviate from a decision of the State Social Court, the Federal Social Court, the Joint Senate of the Federal Supreme Court or the Federal Constitutional Court and is based on this deviation. The decision on non-admission does not necessarily have to be stated in the tenor (cf. Keller, in: Meyer-Ladewig, SGG-Kommentar, 11th ed., § 136, Rn. 5a).
Instructions on legal remedies follow.
