VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
District of Göttingen, represented by the District Administrator, Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 12th Chamber of the Social Court of Hildesheim, in the oral proceedings of November 1, 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 objection decision of 07.06.2017, to reimburse the plaintiff for the necessary extrajudicial costs of the objection proceedings concerning the objection of 24.1.2017 against the assessment of reminder fees in the defendant's letter of 18.1.2017 and to declare the involvement of the authorized representative in these objection proceedings to be necessary.
2. The defendant shall reimburse the plaintiff for the necessary extrajudicial costs incurred in these proceedings.
FACTS OF THE CASE
The parties are in dispute over the reimbursement of the legal fees incurred by the plaintiff in the objection proceedings (objection dated 24 January 2017).
During the period in dispute, the plaintiff received benefits to secure her livelihood under the Twelfth Book of the Social Code (SGB XII).
By a cancellation and reimbursement order dated December 7, 2016, the defendant demanded repayment of €2,833.28 in overpaid benefits under Book XII of the German Social Code (SGB XII) from the plaintiff. The plaintiff, through her legal representative, filed an objection to this cancellation and reimbursement order.
The parties dispute whether the plaintiff subsequently received a reminder letter from the defendant dated December 12, 2016, or whether such a reminder letter even exists, in which reminder fees were first set due to the outstanding repayment.
Undisputedly, the plaintiff subsequently received a letter from the defendant dated January 18, 2017, entitled "Notification of Enforcement Proceedings" (see page 6 of the court file), in which the defendant threatened the plaintiff with enforcement proceedings if the amount owed, plus a late payment fee of €16, was not paid within one week. A statement of claim, which was part of this letter, also mentioned a late payment fee of €16.
The plaintiff, through her legal representative, subsequently filed an objection on January 24, 2017, against "the assessment of late payment fees in the notice dated January 18, 2017" (see page 5 of the court file). In support of her objection, she stated that the claim arising from the cancellation and reimbursement notice of December 7, 2016, was not yet legally binding and therefore not enforceable. In this respect, her objection to this notice had suspensive effect. Furthermore, the objection threatened the initiation of preliminary legal protection proceedings should the defendant not refrain from enforcement measures by January 31, 2017.
On June 7, 2017, the defendant issued a notice of withdrawal, rescinding the assessment of late payment fees in the amount of €16 (see page 15 of the defendant's administrative file). On the same day, the defendant rejected the plaintiff's objection as inadmissible (see page 4 of the court file), stating as grounds that the defendant's letter of January 18, 2017, did not constitute an administrative act. According to the defendant, a simple letter to the district treasury would have sufficed to prevent enforcement proceedings. Furthermore, the provision regarding the assessment of a late payment fee was not contained in the letter of January 18, 2017, but rather in a previous reminder letter dated December 12, 2016.
The plaintiff filed a lawsuit against the appeal decision with the local social court on June 9, 2017.
She maintains that she is entitled to reimbursement of the necessary extrajudicial costs incurred in the objection proceedings against the late payment fee imposed in the letter dated January 18, 2017. She argues that the defendant misunderstood her objection of January 24, 2017. The objection was not directed against the entire letter, including the notice of enforcement, but only against the late payment fee of €16 contained therein. According to the Federal Social Court's jurisprudence, the imposition of late payment fees constitutes an administrative act subject to objection. Insofar as the defendant claims that this is a repetitive order because the late payment fee was already imposed in a reminder letter dated December 12, 2016, the plaintiff denies the existence of such a reminder letter. She also maintains that she never received such a reminder letter.
The plaintiff requests that
to order the defendant, setting aside the cost decision in the objection decision of June 7, 2017 (file number: 20.2-PK00100575), to reimburse the plaintiff for the necessary extrajudicial costs for the objection proceedings concerning the objection of January 24, 2017 against the assessment of reminder fees in the letter of January 18, 2017, and to declare the involvement of the authorized representative in these proceedings necessary.
The defendant requests that
to dismiss the lawsuit.
He considers the contested decision lawful and initially refers to his reasoning in the challenged appeal decision of June 7, 2017. In addition, the defendant argues against a claim for reimbursement of costs, claiming that the appeal of January 24, 2017, was inadmissible. Firstly, the letter of January 18, 2017, is not an administrative act, as it merely announces enforcement proceedings and contains no content subject to appeal. Secondly, the appeal against the imposition of a late payment fee in the letter of January 18, 2017, is also inadmissible. The late payment fee had already been imposed in a reminder letter dated December 12, 2016. Therefore, the mention of the late payment fee in the letter of January 18, 2017, is at most a reiteration of the previous order, with the consequence that it does not constitute an administrative act. Regarding the existence of the reminder letter dated December 12, 2016, the printout from the electronic file presented at the hearing on November 1, 2017, constitutes sufficient evidence. In this respect, testimony from the responsible case worker can also be offered to attest to the existence and dispatch of the reminder letter dated December 12, 2016.
For further details of the facts and the submissions of the parties, reference is made to the court file and to the administrative file of the defendant.
REASONS FOR THE DECISION
The admissible claim is also well-founded on the merits.
The plaintiff is entitled to full reimbursement of the necessary extrajudicial costs incurred in the objection proceedings regarding the imposition of a reminder fee in the letter of January 18, 2017, pursuant to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (see section 1 below). Furthermore, the involvement of her legal representative in the entire objection proceedings was deemed necessary pursuant to Section 63 Paragraph 2 of the German Social Code, Book X (see section 2 below).
In detail:
1.
The plaintiff has a claim for reimbursement of the costs of the objection proceedings pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (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, provided that the objection was at least a contributing cause (see judgment of the Federal Social Court of October 8, 1987 — 9a RVs 10/87 juris).
According to the established case law of the Federal Social Court, an objection is only considered unsuccessful 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 Federal Social Court 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).
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 these principles into account, the plaintiff is entitled to reimbursement of costs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X): Firstly, the plaintiff's objection of January 24, 2017, was at least a contributing factor to the defendant's remedy in the form of the withdrawal notice of June 7, 2017, and thus successful within the meaning of Section 63 SGB X (see a. below). Secondly, the defendant provoked the objection by mentioning the late payment fee in the letter of January 18, 2017 (see b. below).
In detail:
a)
The plaintiff's objection of 24 January 2017 was successful within the meaning of Section 63 Paragraph 1 of the German Social Code, Book X (SGB X), and in particular was the cause of the defendant's remedy in the form of the withdrawal notice of 7 June 2017.
With the withdrawal notice of June 7, 2017 (see page 15 of the defendant's administrative file), the defendant granted the plaintiff's objection of January 24, 2017, insofar as the assessment of a late payment fee of €16 was revoked. According to the principles outlined above, it is initially irrelevant whether the defendant refers to this substantive remedy as a "remedy" or generally as a "withdrawal." It is also immaterial that the defendant erroneously states in the instructions on legal remedies accompanying this notice that an action can be brought "against this objection decision" within one month of notification. The matter at hand is a remedial decision in favor of the plaintiff. The plaintiff's request was granted, and thus the objection was successful in its entirety.
The fact that the defendant issued a notice of objection on the same day on which he ordered the withdrawal of the assessment of the reminder fee in the withdrawal notice of 07.6.2017, formally rejecting the plaintiff's objection and refusing reimbursement of costs, is also harmless to the plaintiff's claim for reimbursement of costs.
Firstly, this regulation by the defendant cannot change the fact that the remedy was already provided in substance in the parallel withdrawal notice of 07.6.2017 and that the cost consequence of the reimbursement of the costs of the objection procedure already arises directly from the law, namely from Section 63 Paragraph 1 SGB X.
Furthermore, the plaintiff's objection to the imposition of late payment fees in the defendant's enforcement notice of January 18, 2017, was also not inadmissible: The imposition of late payment fees constitutes an administrative act subject to objection, as the Federal Social Court has repeatedly ruled (see, for example, Federal Social Court (BSG), judgment of May 26, 2011 – B 14 AS 54/10 R). It is irrelevant that the late payment fees were imposed in a notice of enforcement, which in itself does not constitute an administrative act. The decisive factor is solely the substantive provision regarding the imposition of late payment fees in the defendant's letter of January 18, 2017, irrespective of the letter's external format and, in particular, its heading "Notification of Enforcement.".
Whether the determination of the reminder fees — as the defendant claims — had already been made in a previous reminder letter dated December 12, 2016, and whether the mention of the reminder fee in the subsequent letter dated January 18, 2017 was merely an informational mention of the reminder fee or a non-objectionable “repeated order”, ultimately has no bearing on the plaintiff’s claim for reimbursement of costs. The court ultimately did not need to address the evidentiary questions raised at the hearing on November 1, 2017, regarding the existence and notification of the reminder letter of December 12, 2016, because, regardless of the existence of the reminder letter of December 12, 2016, the determination of the reminder fee in the letter of January 18, 2017, constitutes a regulation subject to objection, and moreover, a claim for reimbursement of costs also follows from the legal principle of provoking an objection, which will be explained in more detail in the next section of this judgment.
b)
The defendant ultimately “provoked” the plaintiff’s objection of 24 January 2017 when he included the reminder fee of €16 in the letter of 18 January 2017.
Based on the provocation principle described above, the authority may, under certain circumstances, also have to bear the costs of an objection procedure that it considers unnecessary, even if it ultimately provoked the recipient's objection. In this respect, the Chamber sees a comparability between the (renewed) assessment of late payment fees in the letter of January 18, 2017, and the categories of cases mentioned in case law and legal literature concerning incorrect instructions on legal remedies that provoke an objection.
From the court's perspective, it is unnecessary to determine whether the late payment fee assessment of January 18, 2017, was the first such assessment—as the plaintiff claims—or whether it was merely mentioned a second time after already being included in the reminder letter of December 12, 2016—as the defendant claims. In either case, the imposition of a late payment fee was ultimately unlawful due to the objection filed against the defendant's contested cancellation and reimbursement order of December 7, 2016, which had suspensive effect. Therefore, to avoid legal disadvantages, the plaintiff was obligated to file an objection against this fee assessment, regardless of whether it was the first or second time it was issued to her. The defendant's argument that the late payment fees were already set in the letter of December 12, 2016, and merely repeated in the letter of January 18, 2017, further intensifies the provocative effect, because the defendant has thereby indicated that he is unlawfully insisting on the setting of late payment fees despite the objection being lodged.
After all this, the plaintiff is entitled to reimbursement of costs pursuant to Section 63 Paragraph 1 of the German Social Code, Book X (SGB X).
2.
Finally, the involvement of legal counsel in the objection proceedings was also declared to be entirely necessary.
According to social court rulings and legal literature on Section 63 Paragraph 2 of the German Social Code, Book X (SGB X), the involvement of legal counsel should not only be deemed necessary in complex and extensive cases. The question of whether such involvement is necessary also depends on the individual's knowledge of the relevant facts and the law, assessed from the perspective of a reasonable party. As a rule, the involvement of legal counsel should be deemed necessary unless there are special circumstances that would render it unnecessary (see Roos, in: von Wulffen/Schütze, Commentary on the SGB X, 8th ed. 2014, Section 63 SGB X, marginal note 26).
Special exceptional circumstances and a lack of necessity to involve a lawyer exist, for example, only in cases where the person concerned was entitled to rely on the authority correcting itself, because the authority had already promised in its decisions the possibility of later correction after submission of documents (cf. judgment of the Social Court of Hildesheim of 25 May 2016 — S 12 SO 117/14, not yet published).
Based on these premises, the Chamber considers the involvement of legal counsel in the preliminary proceedings against the assessment of late payment fees dated January 18, 2017 to be entirely necessary:
The defendant had explicitly not promised the plaintiff any opportunity for correction. Rather, before engaging her legal counsel and filing the objection of January 24, 2017, the plaintiff had to assume that, despite the objection to the cancellation and reimbursement order of December 7, 2016, the defendant intended not only to assess late payment fees against her but also, if necessary, to enforce them. This is all the more true if one accepts the defendant's assertion and assumes that late payment fees were assessed in the reminder letter of December 12, 2016, and that this assessment was communicated to the plaintiff. The defendant would then have mentioned the late payment fee twice and included a threat of enforcement.
Apparently, the defendant only issued the requested remedial decision on June 7, 2017, in the form of a withdrawal notice, after pressure from his lawyer.
The claim was therefore to be granted in full.
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 Number 1 of the Social Court Act (SGG), because the value of the subject matter of the appeal, namely the plaintiff's costs in the objection proceedings, will not exceed €750.00, with the court assuming average legal workload in objection proceedings.
Leave to appeal was not granted 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 Highest Courts of the Federation, or the Federal Constitutional Court, nor is it 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 edition, Section 136, marginal note 5a).
The following is information on legal remedies.
