In the litigation
1. xxx,
2. xxx,
represented by
xxx,
3. xxx,
represented by
xxx,
– applicant –
Legal representative:
for 1-3: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, - Legal Department -, represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
- Respondent -
The 12th Chamber of the Hildesheim Social Court recognized the following at the oral hearing on October 25, 2017 by the social court judge xxx and the honorary judges xxx and xxx:
1. By modifying the cost decision in the defendant's objection notice of June 24, 2016, the defendant is obliged to reimburse the plaintiffs for the necessary out-of-court costs of the objection proceedings regarding the objection of February 2, 2016 against the de facto discontinuation of services as of January 1, 2016 and to involve the authorized representative of the Plaintiffs in the objection proceedings must be declared necessary.
2. The defendant must reimburse the plaintiffs' necessary out-of-court costs.
FACT
The parties involved are in dispute over the reimbursement of the costs incurred by the plaintiffs in the objection proceedings (objection dated February 2, 2016).
The first plaintiff lives with her children, the second and third plaintiffs, in the same household. During the period in dispute, the plaintiffs received benefits under the Asylum Seekers Benefits Act (AsylbLG). Up to and including December 2015, the defendant issued corresponding benefit approvals to the plaintiffs.
On January 1, 2016, the defendant suddenly stopped payments to the plaintiffs without prior notice and without issuing a notice of cancellation, as it assumed that the plaintiffs' stay in its area of responsibility would end on November 30, 2015. Only later did it become apparent to the defendant that the plaintiff's stay had been extended until May 31, 2016 (see the internal communication from the defendant's clerk xxx dated February 8, 2016 on page 162 of the defendant's administrative file).
After the husband of the first plaintiff inquired about the whereabouts of the AsyIBLG benefits from the defendant on February 1st, 2016 and it became clear that the stay had been extended, the defendant ordered the resumption of payments to the plaintiffs on February 1st, 2016. On February 3, 2016, plaintiff 1 noted receipt of the resumed payments in her account.
In the meantime, however, on February 2, 2016, the plaintiffs had already filed an objection via their legal representative against the de facto discontinuation of benefits as of January 1, 2016 and at the same time filed an application for an interim order to resume payments at the local social court (file number S 42 AY 8/16 HE).
After the plaintiffs finally discovered that the payments had been received in their account on February 3, 2016, they declared the urgent proceedings before the local social court to be over. A costs order was then issued on April 20, 2016 in the expedited procedure, after which the defendant had to reimburse 50% of the plaintiff's out-of-court costs incurred for the expedited procedure. As justification, the court stated in the costs order that the expedited procedure had been completed due to the resumption of payments. However, there was a need for legal protection for the plaintiffs to initiate the expedited proceedings, as they had not known about the resumption of payments at the time of the application and it was unreasonable to contact the defendant before initiating the expedited proceedings, after the defendant had been at the time When applying for the interim injunction to the court, the benefits were already a month in arrears.
The defendant rejected the objection filed in parallel to the expedited proceedings with an objection decision dated June 24, 2016. There was no longer any complaint when the objection was lodged, as payments had been resumed by the defendant one day before the objection was lodged. Consequently, no reimbursement of costs can be made to the plaintiffs in the objection proceedings.
On July 5, 2016, the plaintiffs filed a lawsuit against the objection decision with the adjudicating social court.
The plaintiffs are of the opinion that they are entitled to reimbursement of the costs of the objection proceedings regarding their objection of February 2, 2016. Until the objection was raised on February 2, 2016, the plaintiffs were not aware of any administrative action that could have avoided the need to file an objection and hire a lawyer given the plaintiffs' emergency situation. When the objection was lodged, the plaintiffs were simply not aware that the defendant had already ordered the resumption of the benefits that had been wrongly discontinued in accordance with the Asylum Seekers' Benefits Act the day before, namely on February 1, 2016. By effectively discontinuing services on January 1, 2016, the defendant also provoked the objection procedure. Therefore, she now also has to bear the costs of the objection procedure. The sentencing court had already established this in its decision on costs for the expedited proceedings S 42 AY 8/16 ER.
The plaintiffs request
to oblige the defendant to reimburse the plaintiffs for the necessary out-of-court costs for the objection proceedings against the discontinuation of services for the period from January 1, 2016 and to involve the plaintiffs' representative in the preliminary proceedings against to declare the discontinuation of services necessary from January 1, 2016.
The defendant requests
reject the complaint.
It considers the contested decision in the objection notice of June 24, 2016 to be legal and that the plaintiffs are not entitled to reimbursement of the costs of the objection proceedings. There is no claim for reimbursement of costs because the resumption of services on February 1, 2016 cannot constitute a remedial decision. The objection dated February 2, 2016 was received at a time when the defendant had already ordered the resumption of services. For the same reason, there can be no causality between the filing of an objection and the resumption of benefits. Ultimately, the defendant did not provoke the filing of the objection: the plaintiffs could have easily found out about the resumption of payments from the defendant before filing the objection. Furthermore, the decision on costs in the expedited procedure is also not relevant because a different standard of review applies there for the reimbursement of costs.
For further details of the facts and the arguments of those involved, reference is made to the court file.
REASONS FOR THE DECISION
The admissible action is well founded.
The plaintiffs are entitled to reimbursement of the costs they incurred in the objection proceedings to the objection of February 2, 2016 in accordance with Section 63 Paragraph 1 Sentence 1 SGB X.
According to Section 63 Paragraph 1 Sentence 1 SGB
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 Rn. 18). Accordingly, it is irrelevant what the opponent submitted to justify his appeal and what reasons led to the objection being upheld (cf. judgment of the BSG of October 8, 1987 - 9a RVs 10/87 -, juris).
However, according to the established jurisprudence of the BSG, an objection is not successful within the meaning of Section 63 SGB from July 21, 1992 ibid; from December 18, 2001 - B 12 KR 42/00 R - and from March 25, 2004 - B 12 KR 1/03 R = SozR 4-1300 § 63 No. 1).
If the objection is resolved during the ongoing objection procedure, according to general opinion in case law and literature, a so-called “alternative test” must be carried out, i.e. it must be examined based on the circumstances of the individual case whether the objection would have been admissible and justified without the event that resolved it ( see Leitherer, in: Meyer-Ladewig, SGG Comment, 11th edition 2014, § 85 SGG Rn. 7e; also Roos, in: von Wulffen, SGB X-Kommentar, 8th edition, § 63 SGB X, 18, 19, 21).
Ultimately, the authority must bear the costs of the objection procedure in accordance with Section 63 SGB X even if it provoked the objection. As an example, incorrect legal remedy instructions are cited in the literature, according to which an objection can be lodged against a decision, even though this decision has already become the subject of legal proceedings according to Section 96 SGG (cf. Roos, in: von Wulffen, SGB X-Kommentar, 8. Edition, § 63 SGB X, Rn. 22).
Taking into account the principles and case groups listed above for a claim for reimbursement of costs, the defendant in the case of the plaintiff must bear the necessary out-of-court costs of the objection procedure in accordance with Section 63 Paragraph 1 SGB X:
It remains unclear whether the objection of February 2, 2016 was successful, i.e. whether it led to the resumption of asylum seeker benefits that had actually been discontinued on January 1, 2016. The objection was lodged on February 2, 2016, one day after the internal order resuming asylum seeker benefits on February 1, 2016, so that the legal opinion can be taken that the objection was therefore not causal for the resumption of payments. This conclusion would also be obvious because the payments were resumed on February 1, 2016, primarily because the husband of the first plaintiff had asked the defendant about the whereabouts of the benefits and in this context it was clear to the defendant that the de facto benefit setting on January 1st, 2016 was incorrect due to an assumed end of the stay on November 30th, 2015. On the other hand, the question arises as to whether, in the context of a cost reimbursement claim for reasons of equity, the question of a successful objection should not be based on the time of knowledge of the resumption of payments and in particular on the time of receipt of the money instead of the time of the internal order to resume payments is to be stopped. According to this view, the objection of February 2, 2016 would have been successful and causal for the receipt of payment on the plaintiff's account on February 3, 2016. However, the question of whether the objection of February 2, 2016 was causal for the resumption of payments did not need to be conclusively clarified by the court in order to accept a claim for reimbursement of costs.
It can also remain unclear whether, by means of a so-called “alternative review” in the event of the settlement of an objection procedure, the originally filed objection of February 2nd, 2016 without the final event, namely the reopening, which was ordered internally on February 1st, 2016 and was ascertainable for the plaintiffs on February 3rd, 2016 the asylum seeker benefits would have been successful. The alternative examination in the case of the settlement of the objection during the ongoing proceedings is generally intended for cases in which the settlement occurs after the objection has been filed. However, if one follows the legal opinion stated in the previous paragraph that the remedial decision had already taken place before the objection was filed on February 1, 2016 through the internal order to resume payments, one must also assume in the case of the alternative examination that the objection request will not be settled before the objection is filed could take place and therefore reimbursement of costs must also be excluded according to the principles of the alternative examination. However, it would also be justifiable to assume that the objection request ultimately only disappeared on February 3, 2017 and thus during the ongoing objection proceedings, when the plaintiffs were able to access the resumed benefits in their bank account. In this case, the objection in the sense of an alternative examination would have been successful and the defendant owed the reimbursement of costs in accordance with Section 63 Paragraph 1 SGB
Regardless of the question of whether the objection of February 2, 2016 was successful and causal for the remedy or whether it would have been successful without settlement, the plaintiffs are entitled to reimbursement of costs in accordance with Section 63 Paragraph 1 SGB Circumstance that the defendant provoked the objection. The Chamber assumes that the incorrect de facto discontinuation of performance as of January 1, 2016 represents a comparable provocation to the plaintiffs as the drafting of incorrect legal remedy instructions by the authority mentioned in case law and literature: In the present case, the plaintiffs are indeed affected by the de facto discontinuation of performance was not provoked to file an objection due to an incorrect decision. However, it must be taken into account that in asylum seeker benefit law, in contrast to other areas of social law (e.g. in SGB II or SGB the actual disbursement of funds is regulated. In this respect, in the Chamber's opinion, the authority can provoke the filing of an objection in the special area of the Asylum Seekers' Benefits Act even without issuing a written decision.
This applies all the more since the authority suspended the living wage benefits for the plaintiffs for over a month without informing the plaintiffs in advance about the reason for the discontinuation of benefits (discontinuation on January 1, 2016). Due to this time component, the defendant significantly provoked the filing of the objection and at the same time the filing of an interim legal protection application. The situation might have been assessed differently if the authority had only withheld benefits from the plaintiffs for a few days due to a legal error. However, in the Chamber's opinion, with such a long period of time and with such subsistence benefits, less strict standards should be applied to the question of provocation and a resulting claim for reimbursement of costs, so that a claim for reimbursement of costs must ultimately be affirmed.
This view also corresponds - from a legal point of view - to the view that the court already took in the expedited procedure S 42 AY 8/16 ER in the costs order of April 20, 2016, when it recognized the need for legal protection for an expedited judicial procedure despite the payments having already been resumed took it for granted and at the same time pointed out that due to the late payment of benefits for a period of over a month, it was unreasonable for the plaintiffs to contact the defendant again before initiating the urgent legal proceedings. Although the scope of the examination in the context of a costs decision according to Section 193 SGG may be different than in the question of a claim for reimbursement of costs according to Section 63 SGB to apply.
After all this, the plaintiffs are entitled to reimbursement of costs according to Section 63 Paragraph 1 SGB X.
Due to the circumstances described above and in particular the one-month period in which benefits were withheld, the plaintiffs were also not prevented from calling in an authorized representative for the preliminary proceedings, so that the plaintiffs are also entitled to a declaration of necessity for the involvement of their legal representative in the preliminary proceedings in accordance with Section 63 Para .2 SGB X have.
After all this, the action was therefore allowed.
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 costs of the plaintiffs in the appeal proceedings, will not exceed the amount of 750.00 euros, whereby this The court assumes an average legal effort in the objection process.
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.
