DECISION
In the appeal proceedings
xxx,
– Plaintiff and appellant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
– Defendant –
Legal representative:
xxx City of Göttingen, Legal Department,
Hiroshimaplatz 1 – 4, 37083 Göttingen
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on July 6, 2017 in Celle through Judge xxx, Judge xxx and Judge xxx:
Upon the plaintiff's appeal, the decision of the Hildesheim Social Court of May 31, 2017 is overturned.
The plaintiff is granted legal aid for the purposes of the proceedings, and attorney Adam of Göttingen is appointed to represent him. Payment in installments is not ordered.
Extrajudicial costs for the appeal proceedings are not reimbursable.
REASONS
I.
The plaintiff is appealing the denial of legal aid for legal proceedings in which he is challenging the termination of his subsistence benefits under the German Social Code, Book XII (SGB XII) as of November 1, 2016.
The plaintiff, born in 1968, received subsistence benefits under Book XII of the German Social Code (SGB XII) from the City of Göttingen (hereinafter referred to as "the City"), acting on behalf of and for the defendant, from January 2007 onwards, after the City's Public Health Department had determined that the plaintiff was incapable of working (report dated November 17, 2006). By decision dated August 9, 2016, the City set the benefit amounts for September (€469.09) and October 2016 (€885.53). For the months for which no written decisions were issued, the City appears to have granted benefits at the same amount as the previous month.
Following an application submitted by the plaintiff in August 2015 for basic income support for the elderly and those with reduced earning capacity under Book XII of the German Social Code (SGB XII), the city requested the German Federal Pension Insurance (DRV Bund) to examine, pursuant to Section 45 of SGB XII, whether the plaintiff was permanently and totally incapacitated for work. The DRV Bund obtained a medical report from the plaintiff's treating neurologist and psychiatrist, Dr. xxx, as well as an expert opinion from psychiatrist Dr. xxx. Dr. xxx diagnosed dysthymia with a depressive-histrionic personality structure, social phobia, harmful alcohol use, and an insecure personality, and was of the opinion that the plaintiff was capable of working six hours a day. He further stated that all treatment options had not been exhausted and that, from a psychiatric perspective, treatment at the "Addiction" day clinic of the University Psychiatric Hospital would be indicated. According to Dr. xxx, the plaintiff should... xxx – capable of participating in such treatment with reasonable effort of will (expert opinion dated April 25, 2016). The German Federal Pension Insurance Fund (DRV Bund) informed the city by letter dated September 28, 2016, that the plaintiff did not meet the requirements specified in Section 41 Paragraph 3 of the German Social Code, Book XII (SGB XII), because he was capable of working within the meaning of Section 8 Paragraph 1 of the German Social Code, Book II (SGB II).
By decision dated September 29, 2016, the city discontinued the plaintiff's subsistence benefits effective November 1, 2016, and requested that the plaintiff apply for benefits under Book II of the German Social Code (SGB II). The city justified this decision by citing the plaintiff's reported capacity to work, as determined by the German Federal Pension Insurance Fund (DRV Bund). The plaintiff objected to this assessment of his earning capacity and requested continued benefits under Book XII of the German Social Code (SGB XII). The city agreed to continue providing benefits under SGB XII until the legal dispute was resolved (letters dated October 28 and November 23, 2016). The defendant rejected the plaintiff's objection to the decision of September 29, 2016, by a formal notice of rejection dated December 27, 2016.
On January 18, 2017, the plaintiff filed a lawsuit with the Social Court (SG) Hildesheim against the decision of September 29, 2016, as amended by the appeal decision of December 27, 2016. He considered a further assessment necessary to clarify his ability to work and referred to a statement by the neurologist and psychiatrist Dr. xxx dated October 10, 2016.
After reviewing the medical report and expert opinion obtained by the German Federal Pension Insurance Fund (DRV Bund), the Social Court (SG) rejected the plaintiff's application for legal aid for the court proceedings by decision of May 31, 2017. The court concluded that the lawsuit would most likely be dismissed. It was assumed that the plaintiff fell under the jurisdiction of the German Social Code, Book II (SGB II). The court did not see any need to further clarify the medical facts through the taking of evidence.
The plaintiff filed an appeal on June 7, 2017, against the decision of May 31, 2017. He maintains his position that the medical facts are not yet clear and therefore legal aid should be granted.
II.
The appeal against the decision of the Social Court of May 31, 2017, is admissible (§§ 172, 173 of the Social Court Act) and well-founded. The Social Court wrongly rejected the application for legal aid.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous. Sufficient prospects of success in this sense are assumed if the court, based on a summary examination of the facts and the law, considers the applicant's legal position at least tenable and is convinced of the possibility of presenting evidence. The requirements for the factual and legal prospects of success must not be excessive (Schmidt in Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th edition 2017, Section 73a, marginal note 7a with further references).
The action against the decision of September 29, 2016, as amended by the decision on the objection of December 27, 2016, has a reasonable prospect of success.
The action, after preliminary review, is admissible as a combined action for annulment and performance (§ 54 para. 1 sentence 1 alternatives 1 and 3 of the Social Court Act). The plaintiff likely cannot achieve his legal objective, which consists of the final granting of subsistence benefits under Book XII of the German Social Code (SGB XII) from November 1, 2016, with an isolated action for annulment. The benefit notices issued by the city prior to the decision of September 29, 2016 – most recently the notice of August 9, 2016 – should be interpreted as not granting benefits beyond October 31, 2016 (on the interpretation of administrative acts: Engelmann in von Wulffen/Schütze, SGB X, 8th edition 2014, § 31 marginal note 25). The fact that the city continues to grant the plaintiff benefits under Book XII of the German Social Code (SGB XII) does not preclude the admissibility of the action for annulment. The contested decision of September 29, 2016, has not been rendered moot by this (§ 39 para. 2 SGB X), because the provision of benefits is merely "until the legal dispute is resolved." This cannot be interpreted as a final grant of benefits under SGB XII. Nor is it apparent that a subsequent decision was issued definitively granting benefits for the period beginning November 1, 2016. Since the plaintiff continues to receive subsistence benefits under SGB XII and is not pursuing a claim for higher benefits, an action for specific performance (§ 54 para. 4 SGG) is not available alongside the action for annulment; an action for performance seeking a final grant of benefits is admissible (cf. Federal Social Court – BSG –, judgment of February 8, 2017 – B 14 AS 22/16 R – juris para. 11). Upon preliminary review, the action is also admissible in all other respects; in particular, the plaintiff has a legitimate interest in legal protection. In this respect, it is irrelevant whether the plaintiff would be subject to a reimbursement claim by the defendant if the action were dismissed with regard to the benefits granted from November 1, 2016. The plaintiff has a legally protected interest in clarifying which of the potentially applicable benefits he is entitled to (cf. Federal Social Court, judgment of May 16, 2012 – B 4 AS 105/11 R – juris para. 11).
The lawsuit may be justified. The facts relevant to the decision have not been clarified.
A claim to subsistence benefits under the German Social Code, Book XII (SGB XII) is excluded for persons who are eligible for benefits under the German Social Code, Book II (SGB II) as employable persons or as dependents (§ 21 sentence 1 SGB XII). Eligibility for benefits under SGB II requires employability as defined in § 7 para. 1 sentence 1 no. 2, § 8 SGB II, i.e., the ability to work on the general labor market for at least three hours per day. If employability is lacking, an entitlement to subsistence benefits under SGB XII may exist, whereby entitlement to basic income support for the elderly and those with reduced earning capacity before reaching retirement age (§ 41 para. 2 SGB XII) requires the existence of permanent and total incapacity for work (§ 41 para. 3 SGB XII). For the examination of the medical prerequisites pursuant to Section 41 Paragraph 3 of the German Social Code, Book XII (SGB XII), the pension insurance institution is responsible in accordance with Section 45 SGB XII, and its decision is binding on the social welfare agency (Section 45 Sentence 2 SGB XII). If the pension insurance institution concludes that the person concerned is not capable of working, but does not suffer from a permanent total incapacity for work, it is assumed that the social welfare agency is also bound by the determination of the lack of capability for work (Schellhorn in Schellhorn/Hohm/Scheider, SGB XII, 19th edition 2015, Section 45 marginal note 5.4; Blüggel in jurisPK-SGB XII, 2nd edition 2014, Section 45 marginal note 42). In any case, the court is not bound by the performance assessment of the pension insurance institution (BSG, judgment of August 25, 2011 – B 8 SO 19/10 R – juris Rn. 11).
The expert opinion of psychiatrist Dr. xxx, obtained by the German Federal Pension Insurance Fund (DRV Bund) on April 25, 2016, does not provide a sufficient basis for assessing the plaintiff's work capacity. It is doubtful whether the plaintiff's existing psychiatric conditions permit him to work at least three hours a day. Of particular importance in this regard are the assessments of his work capacity conducted prior to the expert opinion of April 25, 2016. Most recently, at the request of the city, the DRV Bund concluded that the plaintiff was incapable of working, but that it was not unlikely that his total incapacity for work could be remedied (letter of July 26, 2013). While it is possible that the plaintiff's work capacity has improved significantly since then, this cannot be considered proven. Given that the plaintiff has been under specialist psychiatric treatment since 2009, it is also not certain that – as Dr. xxx stated – he has been able to work. xxx assumed in his expert opinion that the plaintiff would be able to pursue gainful employment after exhausting further treatment options.
The plaintiff, as a recipient of ongoing benefits under the German Social Code Book XII (SGB XII), has low legal costs.
The appointment of the lawyer is based on Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
Costs of the appeal proceedings are not to be reimbursed (§ 73a para. 1 sentence 1 SGG in conjunction with § 127 para. 4 ZPO).
This decision is final and cannot be appealed (§ 177 SGG).
