In the legal dispute
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 Social Court of Hildesheim, in the oral proceedings of October 25, 2017, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, with modification of the cost decision in the defendant's objection decision of June 24, 2016, to reimburse the plaintiffs for the necessary extrajudicial costs of the objection proceedings concerning the objection of February 2, 2016 against the de facto cessation of benefits as of January 1, 2016, and to declare the involvement of the plaintiffs' authorized representative in the objection proceedings to be necessary.
2. The defendant shall reimburse the plaintiffs for their necessary extrajudicial costs.
FACTS OF THE CASE
The parties are in dispute over the reimbursement of the costs incurred by the plaintiffs in the objection proceedings (objection dated 02.02.2016).
The first plaintiff lives with her children, the second and third plaintiffs, in a shared household. During the period in dispute, the plaintiffs received benefits under the Asylum Seekers' Benefits Act (AsylbLG). The defendant issued corresponding benefit approvals to the plaintiffs up to and including December 2015.
On January 1, 2016, the defendant suddenly ceased payments to the plaintiffs without prior notice or issuing a cancellation notice, as it presumed that the plaintiffs' stay within its jurisdiction had ended on November 30, 2015. It only later became apparent to the defendant that the plaintiffs' stay had been extended until May 31, 2016 (see the internal memo from the defendant's case worker xxx dated February 8, 2016, on page 162 of the defendant's administrative file).
After the husband of the first plaintiff inquired with the defendant on February 1, 2016, about the status of the Asylum Seekers' Benefits Act (AsyIBLG) payments, and it became clear that the stay had been extended, the defendant ordered the resumption of payments to the plaintiffs on February 1, 2016. On February 3, 2016, the first plaintiff confirmed receipt of the resumed payments in her account.
In the meantime, however, the plaintiffs had already filed an objection on February 2, 2016, through their legal representative, against the de facto cessation of benefits as of January 1, 2016, and at the same time submitted an application to the local social court for an interim injunction to resume payments (file number S 42 AY 8/16 ER).
After the plaintiffs finally confirmed receipt of the payments in their account on February 3, 2016, they declared the preliminary injunction proceedings before the local Social Court concluded. Subsequently, on April 20, 2016, a cost order was issued in the preliminary injunction proceedings, ordering the defendant to reimburse 50% of the plaintiffs' incurred extrajudicial costs for the preliminary injunction proceedings. In its reasoning for the cost order, the court stated that while the preliminary injunction proceedings had indeed become moot due to the resumption of payments, the plaintiffs had a legitimate interest in initiating the preliminary injunction proceedings. This was because, at the time of filing the application, they had been unaware of the resumption of payments, and it would have been unreasonable to expect them to contact the defendant before initiating the preliminary injunction proceedings, given that the defendant was already one month in arrears with payments at the time the application for the preliminary injunction was filed with the court.
The defendant rejected the objection filed in parallel to the preliminary injunction proceedings with a formal notice of rejection dated June 24, 2016. The defendant argued that no grounds for appeal existed at the time the objection was filed, as the defendant had resumed payments one day prior. Consequently, the defendant concluded that the plaintiffs were not entitled to reimbursement of costs incurred in the objection proceedings.
The plaintiffs filed a lawsuit against the decision on their objection with the competent social court on July 5, 2016.
The plaintiffs argue that they are entitled to reimbursement of the costs incurred in the appeal proceedings concerning their appeal of February 2, 2016. They maintain that, prior to filing the appeal on February 2, 2016, no administrative action was apparent to them that could have prevented the need to file an appeal and retain legal counsel, given their predicament. The plaintiffs claim they were simply unaware that the defendant had already ordered the resumption of their wrongfully suspended benefits under the Asylum Seekers' Benefits Act one day earlier, on February 1, 2016. Furthermore, the plaintiffs argue that the defendant provoked the appeal proceedings by effectively terminating the benefits on January 1, 2016. Therefore, they contend, the defendant must now bear the costs of these proceedings. The court, they assert, had already established this principle in its cost order for the preliminary injunction proceedings S 42 AY 8/16 ER.
The plaintiffs request that
The defendant is ordered, in principle, to reimburse the plaintiffs for the necessary extrajudicial costs for the objection proceedings against the cessation of benefits for the period from 1 January 2016 onwards, thereby setting aside the cost decision in the objection decision of 24 June 2016, and to declare the involvement of the plaintiffs' authorized representative in the preliminary proceedings against the cessation of benefits from 1 January 2016 onwards as necessary.
The defendant requests that
to dismiss the lawsuit.
The court considers the contested decision in the appeal decision of June 24, 2016, to be lawful and denies the plaintiffs' claim for reimbursement of the costs of the appeal proceedings. A claim for reimbursement is precluded because the resumption of benefits on February 1, 2016, cannot constitute a remedial decision. The appeal of February 2, 2016, was received after the defendant had already ordered the resumption of benefits. For the same reason, no causal link can exist between the filing of the appeal and the resumption of benefits. Furthermore, the defendant did not provoke the filing of the appeal: the plaintiffs could easily have inquired about the resumption of payments with the defendant before filing the appeal. Moreover, the cost order in the preliminary injunction proceedings is also irrelevant, as a different standard of review for cost reimbursement applies there.
For further details of the facts and the submissions of the parties, reference is made to the court file.
REASONS FOR THE DECISION
The admissible claim is well-founded.
The plaintiffs are entitled to reimbursement of the costs they incurred in the objection proceedings regarding the objection of 02.2.2016 pursuant to Section 63 Paragraph 1 Sentence 1 SGB X.
According to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the legal entity whose authority issued the contested administrative act must reimburse the person who has lodged an objection for the expenses necessary for the appropriate pursuit or defense of their legal rights, insofar as the objection is successful.
In principle, an objection is successful within the meaning of the law if the authority grants it (see 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 ed., § 63 para. 18). Accordingly, it is irrelevant what the objector put forward to justify their appeal and what reasons led to the granting of the objection (see judgment of the Federal Social Court of October 8, 1987 — 9a RVs 10/87 —, juris).
However, according to the established case law of the Federal Social Court (BSG), an objection is not successful within the meaning of Section 63 of the German Social Code, Book X (SGB X), if the remedial decision of the legal entity is not attributable to the objection but to another circumstance – for example, the subsequent fulfillment of cooperation obligations (see judgments of the BSG of July 21, 1992, loc. cit.; 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).
If the objection becomes moot during the ongoing objection proceedings, according to the prevailing opinion in case law and legal literature, a so-called "alternative review" must be carried out, i.e., it must be examined in light of the circumstances of the individual case whether the objection would have been admissible and justified without the event that rendered it moot (cf. Leitherer, in: Meyer-Ladewig, SGG Commentary, 11th ed. 2014, § 85 SGG para. 7e; furthermore Roos, in: von Wulffen, SGB X Commentary, 8th ed., § 63 SGB X, paras. 18, 19, 21).
Finally, the authority must bear the costs of the objection procedure pursuant to Section 63 of the German Social Code, Book X (SGB X), even if it provoked the objection. As an example, legal literature cites an incorrect instruction on legal remedies, according to which an objection can be lodged against a decision even though this decision has already become the subject of legal proceedings pursuant to Section 96 of the German Social Courts Act (SGG) (see Roos, in: von Wulffen, SGB X Commentary, 8th ed., Section 63 SGB X, para. 22).
Taking into account the principles and categories of cases listed above for a claim for reimbursement of costs, the defendant must bear the necessary extrajudicial costs of the objection proceedings in the case of the plaintiffs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X):
It can remain open whether the objection of February 2, 2016, was successful, i.e., whether it led to the resumption of the asylum seeker benefits that had been effectively discontinued on January 1, 2016. While the objection was filed on February 2, 2016, one day after the internal order to resume the asylum seeker benefits on February 1, 2016, it can be argued that the objection was therefore not the cause of the resumption of payments. This conclusion would also be plausible because the resumption of payments on February 1, 2016, apparently occurred primarily because the husband of the first plaintiff had inquired with the defendant about the whereabouts of the benefits, and in this context, it became clear to the defendant that the de facto discontinuation of benefits on January 1, 2016, based on a presumed end of the asylum seeker's stay on November 30, 2015, was erroneous. On the other hand, the question arises whether, in the context of a claim for reimbursement of costs, the relevant point in time for determining the success of an objection should not be the date of notification of the resumption of payments, and in particular the date of receipt of the funds, rather than the date of the internal order to resume payments. According to this view, the objection of February 2, 2016, would have been successful and causally related to the receipt of payment into the plaintiffs' account on February 3, 2016. However, the court did not need to definitively resolve the question of whether the objection of February 2, 2016, was causally related to the resumption of payments in order to accept a claim for reimbursement of costs.
It can also remain open whether, by way of a so-called "alternative review," the originally filed objection of February 2, 2016, would have been successful in the event of the resolution of an objection procedure, without the event that resolved it—namely, the resumption of asylum seeker benefits, ordered internally on February 1, 2016, and determinable for the plaintiffs on February 3, 2016. The alternative review in the event of the resolution of an objection during ongoing proceedings is generally intended for cases in which the resolution occurs after the objection has been filed. However, if one follows the legal opinion mentioned in the previous paragraph, namely that the remedial decision had already been made before the objection was filed on February 1, 2016, through the internal order to resume payments, then one must also assume, in the case of an alternative review, that the objection could not have been resolved before the objection was filed, and accordingly, according to the principles of the alternative review, reimbursement of costs must be ruled out. It would also be justifiable, however, to argue that the objection was ultimately withdrawn only on February 3, 2017, and thus during the ongoing objection proceedings, when the plaintiffs were able to access the reinstated benefits in their bank account. In this case, the objection would have been successful in the sense of an alternative review, and the defendant would accordingly owe reimbursement of costs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X). The court is inclined toward this latter view but ultimately did not need to make a final decision on this issue either.
Regardless of whether the objection of February 2, 2016, was successful and causally related to the remedy, or whether it would have been successful even without the matter being resolved, the plaintiffs are entitled to reimbursement of costs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X), due to the fact that the defendant provoked the filing of the objection. The court assumes that the erroneous de facto cessation of benefits on January 1, 2016, constitutes a comparable provocation to the plaintiffs as the drafting of an incorrect legal remedy notice by the authority, as described in case law and legal literature. While in the present case the plaintiffs were not provoked into filing an objection due to an incorrect decision, the de facto cessation of benefits is nonetheless a provocation. However, it must be taken into account that, unlike other areas of social law (such as the German Social Code, Book II or Book XII), benefits under asylum seeker benefits law are not always granted and paid out based on a written decision. Instead, the responsible authority often makes decisions through de facto administrative action and the actual disbursement of funds. Therefore, in the Chamber's view, the authority can, even without issuing a written decision, provoke the filing of an objection in the specific area of asylum seeker benefits law.
This is all the more true given that the authority suspended the plaintiffs' subsistence benefits for over a month (as of January 1, 2016) without informing them of the reason for the suspension. This timing also significantly provoked the plaintiffs' filing of the objection and the simultaneous application for preliminary legal protection. The situation might be assessed differently if the authority had withheld benefits from the plaintiffs for only a few days due to a legal error. However, given such a long period and the vital nature of the benefits, the court is of the opinion that less stringent standards should be applied to the question of provocation and the resulting claim for reimbursement of costs, so that a claim for reimbursement of costs must ultimately be affirmed.
This view, incidentally, corresponds – from a legal perspective – to the view already expressed by the court in the preliminary injunction proceedings S 42 AY 8/16 ER in its cost order of April 20, 2016, when it deemed the need for legal protection in preliminary injunction proceedings to exist despite the resumption of payments and simultaneously pointed out that, due to the default of payments for a period of over one month, it would have been unreasonable for the plaintiffs to contact the defendant again before initiating preliminary injunction proceedings. While the scope of review in the context of a cost decision under Section 193 of the Social Court Act (SGG) may differ from that in the question of a claim for reimbursement of costs under Section 63 of the German Social Code, Book X (SGB X), this does not prevent the court from applying the corresponding legal principle, and in particular the emphasis on the temporal connections, analogously in the present proceedings.
After all this, the plaintiffs are entitled to reimbursement of costs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X).
Due to the circumstances described above, and in particular the period of over one month during which benefits were withheld, the plaintiffs were not prevented from appointing a representative for the preliminary proceedings, so that the plaintiffs are also entitled to a declaration of necessity for the appointment of their legal representative in the preliminary proceedings pursuant to Section 63 Paragraph 2 of the German Social Code, Book X (SGB X).
Therefore, the complaint had to be granted.
The decision on costs is based on Section 193 of the Social Courts Act (SGG).
The appeal against this judgment requires leave to appeal pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), because the value of the subject matter of the appeal, namely the costs of the plaintiffs in the objection proceedings, will not exceed the amount of 750.00 euros, whereby the court assumes an average amount of legal work in the objection proceedings.
The appeal was inadmissible because the case is neither of fundamental importance, nor does the judgment deviate from a decision of the Higher Social Court, the Federal Social Court, the Joint Senate of the Supreme Federal Courts, or the Federal Constitutional Court, and is not based on such a deviation. The decision to deny leave to appeal need not necessarily be stated in the operative part of the judgment (see Keller, in: Meyer-Ladewig, SGG Commentary, 11th ed., § 136, para. 5a).
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