DECISION
In the legal dispute
xxx,
Applicant,
Legal Representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
Werra-Meißner district, xxx,
respondent,
The 12th Chamber of the Social Court of Kassel decided on November 23, 2017, through its presiding judge, Judge xxx of the Social Court:
1. It is hereby determined that the applicant's objection, lodged by letter dated September 11, 2017, against the respondent's cost reduction decision of August 17, 2017, has suspensive effect, with the revocation/partial amendment decision of September 28, 2017, becoming the subject of the objection proceedings.
2. The respondent shall bear the applicant's necessary extrajudicial costs.
3. The applicant is granted legal aid without installment payments, with the appointment of lawyer Adam, Göttingen, for the first instance proceedings from the date of application (October 2, 2017).
REASONS
I.
In preliminary legal proceedings following a cost reduction order issued separately by the respondent on August 17, 2017, against which the applicant filed an objection, and which solely regulates the amount of housing costs under the Social Code – Social Assistance (SGB XII) from October 1, 2017, the parties were in dispute regarding the amount of housing costs from October 1, 2017, within the framework of a regulatory order requested by the applicant. The applicant resides in a 54 m² apartment in Witzenhausen (town), for which a gross monthly rent of €339.00 and heating costs of €60.00 are incurred. The applicant further asserted the issuance of a regulatory order only as a subsidiary claim, while in his primary application he sought a declaration that his objection to the cost reduction order had suspensive effect, which the respondent was disregarding.
This followed an application submitted by the applicant, born on xxx, for basic income support for the elderly, effective September 1, 2017, while receiving unemployment benefit II (ALG II). The respondent initially granted this application by decision dated August 16, 2017, taking into account the applicant's full housing costs. This initial decision was entitled "Decision on the Granting of Ongoing Benefits under Book XII of the German Social Code (SGB XII) – Chapter Four (Basic Income Support for the Elderly and Persons with Reduced Earning Capacity)," explicitly specifying the period from September 1, 2017, to August 31, 2018, as the benefit period. Attached to the decision was a certificate of exemption from broadcasting fees, which also referred to this period, for which the applicant had been granted benefits under SGB XII until August 31, 2018. At the same time, on August 14, 2017, the respondent had already asserted a claim for reimbursement to the applicant's pension insurance provider, anticipating a benefit award under Book XII of the German Social Code (SGB XII) effective September 1, 2017, and in anticipation of the pension to be granted to the applicant. This claim was made purely as a precautionary measure, after the applicant had only been offered a consultation appointment regarding his pension application for November 2017. The decision of August 16, 2017, however, only specified the amount of the benefit claim for the month of September 2017. The decision contained no indication that it was intended to apply solely to the month of September 2017, irrespective of the benefit period extending to August 31, 2018. All of this is irrelevant even though the job center responsible for the applicant during his receipt of ALG II benefits had already initiated a cost reduction procedure with the applicant on February 3, 2017, regarding his housing costs, and the respondent had demonstrably already intended to reduce the housing costs again from October 1, 2017, when issuing the decision of August 16. This reduction would have been to the amount of €274.55 per month for basic rent and €60.00 per month for heating costs, which he considered the only reasonable housing costs, i.e., €64.44 less per month than granted in the initial decision of August 16, 2017.
The aforementioned cost reduction was implemented by the respondent immediately following the initial decision of August 16, 2017, and without further hearing of the applicant, by a decision dated the following day, August 17, 2017, effective October 1, 2017. This decision of August 17, 2017, was titled solely "Decision on the Reduction of Housing Costs" and concerned only the housing costs to be granted to the plaintiff from October 1, 2017, in the aforementioned amount, to which the approved housing costs would be reduced. The justification given was that, according to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. According to the guidelines of the Werra-Meißner district, only the latter expenses are considered reasonable, resulting in a reasonable total rent of €334.56. In comparison, the applicant's housing costs were deemed too high and therefore unreasonable according to the guidelines. The respondent did not issue a new approval and/or revocation/amendment decision independent of the aforementioned decision and the initial decision of August 16, 2017, concerning the entire benefit provision. According to the file, this occurred for the first time, and without further hearing of the applicant, with an amendment/partial revocation decision dated September 28, 2017, covering the period from October 1, 2017, up to and including August 2018. Like the decision of August 17, 2017, this decision also contained no explanation of the procedural legal basis for the amendment.
Previously, the applicant, through his legal representative, had already filed an objection on September 11, 2017, against the decision of August 17, 2017, challenging the reduction of his monthly housing allowance by €64.44 on various legal grounds. However, the amended decision of September 28, 2017, was not served on the applicant's legal representative during the ongoing objection proceedings, but only on the applicant himself. On September 25, 2017, the respondent merely reiterated the reasons for issuing the reduction decision of August 17, 2017, to the applicant's legal representative and simultaneously addressed the grounds for the objection itself.
Following this, on October 2, 2017, after the objection had not been remedied by that time, the applicant's legal representative applied to the Social Court in Kassel for an interim injunction and claimed a monthly increase of €64.44 in housing costs from the date of receipt of the application.
In support of his claim, he cites, for a variety of legal reasons, among other things and primarily, the fact that the so-called conclusive concept used by the respondent for cost reduction does not constitute a conclusive concept within the meaning of the highest court rulings of the Federal Social Court, for a variety of legal reasons. This is not relevant in the period in dispute here, even considering the case law of the 8th and 11th Chambers of the Kassel Social Court, which the applicant's legal representative subsequently elaborated on in detail, also in light of a number of further indications from the court regarding the insufficient availability or rentability of small apartments affordable under social assistance law in the Werra-Meißner district, as evidenced by a number of press releases, and the further indication that if the actual housing costs to be incurred exceed the abstractly determined reference rent, it must be examined whether an apartment that meets the abstract criteria is actually available and specifically rentable for the benefit recipient on the housing market, i.e., it must be concretely possible for him to reduce the costs for accommodation to the abstractly appropriate level, meaning that concrete appropriateness must also exist. At the same time, citing social court rulings, he not only sees legal reservations regarding the index updates underlying the Werra-Meißner district's concept, but also concludes that the form of "index update" applied here could even be completely disregarded, since a new survey should have been conducted by May 31, 2017, at the latest. This conclusion is based, on the one hand, on the existing case law he cites and, on the other hand, on the provision in Section 558d Paragraph 2 Sentence 3 of the German Civil Code (BGB), which is also invoked by Analyse und Konzepte, and according to which a completely new concept must be developed no later than four years after the initial assessment. However, according to his knowledge and based on the documents submitted so far, there is currently no further update, let alone a new concept, since November 2015 with the exclusive and, in any case, disputed survey of advertised rents from May 1, 2015, to October 31, 2015, without specifying the respective survey date for individual apartments, which could then be applied at the present time. On the contrary, the respondent has meanwhile commissioned a new concept.
The respondent, in turn, opposed the application with a detailed explanation and by submitting a number of further documents.
After further review, and after the applicant repeatedly failed to provide reasons, including those indicating that a move might be unreasonable for him for other reasons, such as medical ones, the court pointed out that the previously unexamined suspensive effect of the objection to the decision of August 17, 2017, might have been overlooked. This was because this decision formally interfered with the initial decision of August 16, 2017. In this respect, the decision of August 16, 2017, likely constitutes a continuing administrative act, since while it initially only regulates the amount of benefits for September 2017, it ultimately establishes a regulation for the period from September 1, 2017, to August 31, 2018, and thus does not limit the benefit to the month of September 2017. According to the Hessian State Social Court (inter alia, decision of March 23, 2017, L 4 SO 37/17 B ER), and also the jurisprudence of this chamber, the decisive factor is how the recipient, from an objective standpoint, could and should have understood the content of the decision. Based on this, the interpretation as an administrative act with continuing effect is already supported if the initial decision – as in this case – is headed "Decision on the granting of ongoing benefits under Book XII of the German Social Code – Chapter Four (Basic Income Support for the Elderly and Persons with Reduced Earning Capacity)" and the subsequent decision – as in this case – is then interpreted by the issuing authority itself as an amendment decision, as is clear from the phrases "previously" and "will be reduced." A different conclusion would only be warranted if the benefit period had been extended from the outset solely to the month of September 2017, which is not the case here. The period from September 1, 2017, to August 31, 2018, is explicitly covered. An objective recipient would therefore understand the aforementioned initial decision to be effective not only for the specifically named month but also for the period thereafter, thus remaining the basis for the benefits paid until it is replaced by a new decision. There are no supplementary provisions or other indications that could contradict such an interpretation, such as a statement that the decision is expressly valid only for the month of September 2017 because a possible cost reduction for the period from October 2017 onward still needs to be decided, which would have been obvious here. Furthermore, the decision of August 17, 2017, is simply titled "Decision on Reducing Housing Costs" and therefore initially only intervenes in the granting of housing costs in the initial decision; it does not constitute a new decision independent of the initial decision.
The applicant adopted the relevant guidance and, after further explanation, asserted the initially requested regulatory order only as a subsidiary claim. In his main application, he limited himself to requesting a declaration of suspensive effect.
The respondent notified the applicant, among other things, on November 20, 2017, that it intended to order immediate enforcement. The applicant was currently being heard in this regard, and according to the file, the hearing was initiated on November 21, 2017, by sending a fax of the same date to the applicant's legal representative, thereby giving the applicant the opportunity to comment until Tuesday, November 28, 2017.
The respondent did not comment further on whether the applicant would continue to receive full benefits provisionally in light of the aforementioned suspensive effect. Nor did he address the court's observation that the applicant's written submission of November 20, 2017, should be interpreted as an acknowledgment of the suspensive effect, as long as no new decision ordering immediate enforcement had actually been issued and the applicant would then be free to submit a new application for reinstatement of the suspensive effect. In this respect, the court assumes that the submission did not, at the very least, anticipate the outcome of the hearing, which itself had not yet even been initiated.
Finally, the court pointed out that it would not comment further on whether and under what conditions a subsequent order for immediate enforcement would be legally possible, and to what extent.
For further details, in particular for the respective further submissions of the parties, reference is made to the contents of the court file as a whole; reference is also made to the administrative files of the respondent, the essential content of which relating to the present preliminary injunction proceedings was likewise the subject of the decision-making.
II.
The application for an interim injunction, or, as ultimately asserted here as the sole main application, for a declaration of the suspensive effect of the applicant's objection to the decision of August 17, is admissible and, since the respondent is already enforcing this decision without having responded to the court's aforementioned indications regarding a reversal of this enforcement, is also well-founded. Therefore, the respondent remains obligated to continue to grant the applicant, despite the decision of August 17, 2017, and subsequently also despite the amending or partial revocation decision of September 28, 2017, which became the subject of the objection proceedings pursuant to Section 86 of the Social Court Act (SGG), provisional and subject to the right to reclaim housing costs, even from October 1, 2017, in the amount originally granted by the decision of August 16, 2017, but at the latest until the decision in the main proceedings, i.e., the conclusion of the objection proceedings against the decision of August 16, 2017. August 17, 2017, or, if the objection is rejected and a lawsuit is subsequently filed in a timely manner, beyond that date, but then at the latest until the end of the approval period on August 31, 2018.
Whether and to what extent changes might result if the respondent were to order immediate enforcement for the future, as announced, remains unaffected by the present decision and can therefore be left open here, since such an order has not yet been issued at the time of this decision. If necessary, the applicant would then have to file a new application for an interim injunction to reinstate the suspensive effect, irrespective of the present decision. Immediate enforcement could not be ordered retroactively, as this can only have legal effects for the future.
Until January 1, 2002, the authority of social courts to issue preliminary injunctions in cases other than those expressly stipulated in the Social Courts Act (SGG) was derived directly from Article 19, Paragraph 4 of the Basic Law (GG) (see BVerfGE 46, p. 166). However, preliminary injunctions were generally not permitted to anticipate the final decision. Only in exceptional cases, in the interest of effective legal protection, could it be necessary to anticipate the decision on the merits, if legal protection would otherwise be unattainable and this would be unreasonable for the applicant.
The prerequisite for granting preliminary legal protection was that the affected party faced serious and unreasonable disadvantages that could not be averted by other means and that a decision on the merits would likely no longer be able to remedy, or only partially remedy. This applied at least to so-called "action proceedings," i.e., proceedings in which a citizen challenged the omission or refusal of a requested official act. The same applied, however, to so-called "appeal proceedings," in which a citizen claimed that their rights had been violated by a detrimental measure taken by public authorities. According to the established case law of the Chamber, preliminary legal protection in "appeals" could, in accordance with the fundamental principle of Section 80 Paragraph 4 Sentence 3 of the Code of Administrative Court Procedure (VwGO), generally be granted if there were serious doubts about the legality of an administrative act, i.e., if the success of the legal dispute in the main proceedings, i.e., in subsequent legal proceedings, was at least as likely as its failure, and if the enforcement of a contested administrative act would have resulted in an unreasonable hardship for the applicant that was not predominantly justified by public interests (cf. in this regard the decision of the Hessian State Social Court of March 9, 2000, L 1 KR 226/00 ER, which, in addition to the prospects of success in the main proceedings, required the existence of significant disadvantages that made waiting for the decision in the main proceedings unreasonable). Furthermore, in "actions concerning performance", the focus was to be placed on the risk that a change in the existing state could frustrate or significantly impede the realization of the applicant's right, in accordance with Section 123 of the Administrative Court Procedure Act. Furthermore, preliminary injunctions were also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appeared necessary, especially in the case of ongoing legal relationships, to avert significant disadvantages, prevent imminent violence, or for other reasons (see, in general, Hessian State Social Court, decision of July 29, 1987, L 8 Kr 362/87 A with numerous further references, and decision of November 11, 1992, L 6 Ar 461/92 A in info-also 1993, pp. 59 et seq.; State Social Court for the State of North Rhine-Westphalia, decision of August 30, 1990, L 3 S 42/90 in info-also 1991, pp. 74 et seq.; Meyer-Ladewig, SGG, § 97 para. 20 et seq.; Timme, Der einstweilige Rechtsschutz in der Rechtsprechung der Landessozialgerichte [Preliminary Legal Protection in the Case Law of the State Social Courts]). NZS, 1992, 91 ff.).
Since January 2, 2002, preliminary legal protection has been expressly regulated in the SGG (Social Code, Book X), whereby the above principles continue to be observed.
In this respect, Section 86a Paragraph 1 Sentence 1 of the Social Court Act (SGG) initially stipulates that objections and appeals have suspensive effect, which, according to Sentence 2, also applies to constitutive and declaratory administrative acts as well as administrative acts with third-party effect. However, according to Paragraph 2 No. 1, the suspensive effect is waived for decisions concerning insurance, contribution, and assessment obligations, as well as for the demand for contributions, assessments, and other public charges, including any ancillary costs. Likewise, the suspensive effect is waived, for example, according to No. 3, for appeals in social security matters concerning administrative acts that reduce or withdraw ongoing benefits.
According to Section 86b Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), the court of first instance may, upon application, order immediate enforcement in whole or in part in cases where an objection or appeal has suspensive effect.
According to sentence 1 no. 2, the court may also, in cases where an objection or appeal does not have suspensive effect, order in whole or in part, and according to no. 3, in the cases of § 86 a para. 3 SGG, reinstate the immediate enforcement in whole or in part.
If the administrative act has already been executed or complied with at the time of the decision, the court may, pursuant to Section 86b Paragraph 1 Sentence 2 of the Social Courts Act (SGG), order the suspension of the execution, whereby, according to Sentence 3, the restoration of the suspensive effect or the order of immediate execution may be subject to conditions or limited in time, and furthermore, according to Sentence 4, the court of first instance may, upon application, amend or revoke the measures at any time.
Unless a case under paragraph 1 applies, the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute pursuant to Section 86b paragraph 2 sentence 1 of the Social Courts Act (SGG), if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant.
According to sentence 2, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert significant disadvantages.
According to § 86 b para. 4 SGG, the court then decides by order.
Regarding the merits of the applicant's original application, if the objection had no suspensive effect, the matter would then be decided as a so-called action or regulatory order based on the above explanations pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG).
The chamber's decision would therefore primarily be based on the prospects of success in the main proceedings. If an objection or appeal were clearly well-founded, the order would generally be issued; if it were clearly unfounded, it would generally be rejected.
If, in this scenario, neither of the two prerequisites is clearly met, a balancing of interests would have to be carried out within the bounds of discretion. In preliminary injunction proceedings, the courts must, when interpreting the applicable provisions, take into account the particular importance of the fundamental rights affected and the requirements of effective legal protection, and in particular consider the consequences of denying preliminary legal protection. The more severe the resulting burdens would be and the lower the likelihood that they could be reversed if the plaintiff prevails in the main proceedings, the less the interest in a preliminary ruling should be disregarded. In this respect, it would suffice in such cases if a preliminary review of the facts and the law indicates that there are grounds to believe that a claim exists for the requested performance (claim for an injunction).
This is because, according to the decisions of the Federal Constitutional Court (BVerfG), inter alia of November 22, 2002, 1 BvR 1586/02 and of March 19, 2004, 1 BvR 131/04, the interest in a preliminary ruling or safeguarding of the asserted legal position should be less likely to be disregarded the more severe the burdens on the affected party would be that would be associated with the denial of preliminary legal protection. Article 19 Paragraph 4 of the Basic Law would thus also require preliminary legal protection in cases concerning enforcement measures, at least when, without it, serious and unreasonable disadvantages would arise that cannot be averted in any other way and that the decision on the merits would no longer be able to remedy (cf. BVerfGE 79, 69 <74>; 94, 166 <216>). If the courts were to base their decisions not on a balancing of conflicting interests but on the prospects of success in the main proceedings, they would be obligated under Article 19, Paragraph 4, Sentence 1 of the Basic Law to justify the denial of preliminary legal protection in such cases by conducting a thorough examination of the facts and the law. This would also mean that the examination of the prospects of success in the main proceedings would have to include questions of fundamental rights protection if there were cause to do so (cf. decision of the Second Chamber of the First Senate of the Federal Constitutional Court of July 25, 1996, NVwZ 1997, p. 479).
The Hessian State Social Court (decision of March 21, 2007, L 7 AY 14/06 ER, with further references) held that the claim for an injunction and the grounds for the injunction do not exist in isolation; rather, there is a reciprocal relationship in that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened disadvantage (the grounds for the injunction), and vice versa. This is because the claim for an injunction and the grounds for the injunction form a dynamic system due to their functional connection.
If an objection or a lawsuit on the merits were manifestly inadmissible or unfounded, the application for a preliminary injunction would generally have to be rejected, regardless of the grounds for the injunction, because no right worthy of protection would exist. Conversely, if an objection or a lawsuit on the merits were manifestly well-founded, the requirements for the grounds for the injunction would be reduced. In such cases, the application for a preliminary injunction would usually have to be granted, even though a ground for the injunction could not be entirely dispensed with. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the facts and the law is not possible in the preliminary injunction proceedings, a decision would have to be made by weighing the consequences. This would regularly favor the citizen if their right, derived from the constitutional principle of the protection of human dignity in conjunction with the social welfare principle, to lead a life of human dignity would be jeopardized. In this respect, the applicant's fundamental rights would have to be comprehensively considered in the balancing of interests. Particularly in cases involving claims aimed, for example, at securing the socio-cultural minimum standard of living as an expression of the constitutionally protected human dignity (Article 1, Paragraph 1 of the Basic Law in conjunction with the social welfare principle), a potentially existing claim for an injunction, especially if it would amount to a level of benefit indispensable for socio-cultural participation and would have to be granted for a period not merely short-term, would generally have to be provisionally satisfied if the factual or legal situation could not be fully clarified in expedited proceedings. This is because, within the framework of the required balancing of interests, the interest of the benefit provider in avoiding unjustified benefits would regularly have to yield to the securing of the socio-cultural minimum standard of living that is currently attainable for the applicant (see, among others, the decisions of the Hessian State Social Court of July 27, 2005, L 7 AS 18/05 ER and of June 19, 2008, L 7 AS 32/08 B ER).
Whether the conditions for a regulatory order itself would have been met here, for example because the concept applied by the respondent was not conclusive or because a move would be unreasonable for the applicant for health or other reasons, which is ultimately suggested by the uncommented submission of a medical report, can remain open in all of this.
In the present case, the objection to the decision of August 17, 2017, already has suspensive effect by operation of law pursuant to Section 86a Paragraph 1 of the Social Court Act (SGG), in light of the aforementioned observations by the court, since a situation within the meaning of Section 86a Paragraph 2 Nos. 1-4 of the Social Court Act (SGG), which would have eliminated the suspensive effect pursuant to Paragraph 1, is indisputably not present in light of the aforementioned observations by the court, and immediate enforcement has not yet been ordered.
Regarding the fact that the decision of August 16, 2017, constitutes a continuing administrative act whose legal effects extend at least to the benefit period until August 31, 2018, reference can be made to the aforementioned legal information and the case law of the Hessian State Social Court's Appeals Senate responsible for social assistance cited therein (see also Hessian State Social Court, decision of March 23, 2017, L 4 SO 36/17 B ER). The decisive factor is therefore the recipient's perspective, whereby, in addition to the aforementioned information, reference can also be made to the certificate of exemption from broadcasting fees attached to the decision of August 16, 2017, which also refers to a benefit period until August 31, 2018, and expressly certifies an entitlement to benefits under Book XII of the German Social Code (SGB XII) until August 31, 2018. The fact that long-term benefits should also be granted here is further clarified by the fact that the respondent had already asserted a claim for reimbursement with the pension insurer responsible for the applicant on August 14, 2017, in anticipation of a benefit award under Book XII of the German Social Code (SGB XII) "from September 1, 2017." Finally, a partial revocation of the decision of August 16, 2017, effective October 1, 2017, by the subsequent decision of September 28, 2017, which the respondent did not even consider legally valid, would not have been necessary if the respondent had not also previously argued that a long-term administrative act existed. The specific legal status of the decisions of August 17, 2017, and September 28, 2017, is and remains irrelevant in this context and can be left open, at least for the purposes of determining the suspensive effect.
In light of all this, the application should have been granted with regard to the main application submitted most recently.
The decision on costs follows from a corresponding application of Section 193 of the Social Court Act (SGG).
Finally, the requirements for granting legal aid pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Sentence 1 of the Code of Civil Procedure (ZPO) were met, not only with regard to a sufficient prospect of success, but also insofar as the applicant, according to his personal and economic circumstances, which he credibly demonstrated by submitting an updated declaration, cannot afford the costs of litigation, can only afford them in part or in installments.
The appeal against this decision is excluded with regard to points 1 and 2 pursuant to Section 172 Paragraph 3 of the Social Court Act (SGG), since the value of the appeal does not exceed 750.00 euros and no benefits for more than one year are in dispute in the aforementioned approval period, which is the only relevant period here.
The appeal against the granting of legal aid is inadmissible as a decision in its favor.
