DECISION
In the legal dispute
xxx,
represented by her mother, xxx,
Applicant,
Legal representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Werra-Meißner district, represented by the district committee, legal department 3.1,
Schlossplatz 1, 37269 Eschwege
Respondent,
The 12th Chamber of the Social Court of Kassel decided on May 17, 2019, through its presiding judge, Judge xxx of the Social Court:
1. The respondent is ordered to provisionally authorize the applicant, upon medical referral, to receive the requested services for neurological diagnostics pending a decision on the merits and to indemnify her accordingly against the resulting costs.
2. The respondent shall reimburse the applicant for the costs of the application proceedings.
REASONS
I.
The applicant, born in 2011, is of Turkish origin and receives benefits from the respondent under the Asylum Seekers' Benefits Act (AsylbLG). She was diagnosed with West syndrome with grand mal epilepsy as an infant. According to medical certificates dated February 12, 2019, and February 27, 2019, submitted during the pre-trial hearing, her family doctor and pediatrician have determined that she exhibits developmental delays and sometimes self-harming behavior, including bleeding lips and fingers, due to severe anxiety. She is on medication for her epilepsy and requires regular checkups at a neuropediatric clinic to adjust the medication and minimize seizures. The last medical examination, including an EEG, took place in Turkey in March 2018. The applicant's mother had noticed increasing facial twitching and vocalizations over several months, which she considered indicative of recurrent seizures. This prompted the two aforementioned doctors to urgently recommend, due to the complexity of the symptoms, that the applicant undergo an evaluation/examination/diagnosis in neuropediatrics/neurology and to issue corresponding referrals, which the applicant then submitted to the respondent for approval in early December 2018 and mid-February 2019.
After obtaining an official medical opinion dated December 12, 2018, and hearing the applicant, during which the aforementioned medical certificates were submitted, and after a further official medical opinion dated March 12, 2019, which revealed no new findings, the respondent, by decision dated March 26, 2019, rejected the applicant's request for authorization/coverage of costs for a referral to neurology, citing Section 4 of the Asylum Seekers' Benefits Act (AsylbLG) and the aforementioned medical opinion. According to Section 4 of the AsylbLG, in cases of acute illness and pain, the necessary medical treatments, including the provision of medications and dressings, as well as other services necessary for recovery, improvement, or alleviation of illness, must be granted. However, treatment in neurology was not necessary in this case. The diagnosis had already been made in infancy. With appropriate medication, the applicant was seizure-free. The relevant medications should continue to be taken and could be prescribed by the treating pediatrician. However, on December 12, 2018, the public health officer had indicated that while developmental diagnostics at the Social Pediatric Center were advisable, they did not need to be carried out immediately, but could wait until the applicant's residency status allowed for coverage under the German Social Code – Statutory Health Insurance (SGB V). At the same time, it was also noted that during the school entry examination at the center, a developmental delay had been observed, along with a suspicion of intellectual disability, and schooling in a school for children with intellectual disabilities had been recommended.
The applicant, through her legal representative, filed an objection on April 3, 2019, against the decision of March 26, 2019, by letter dated April 1, 2019. The grounds for the objection initially stated that the applicant suffers from recurrent epileptic spasms and had recently required treatment at the University Medical Center Göttingen (UMG). The applicant therefore urgently requires a neurological evaluation. Attached to the objection was a report from the UMG's Department of Pediatrics and Adolescent Medicine dated March 20, 2019, which diagnosed recurrent epileptic spasms of the trunk and upper extremities with a progressive increase in seizure frequency over the past few months, in the context of a known West syndrome. The report indicated that the applicant's medication had been changed and that emergency medication had been prescribed. Simultaneously, a follow-up appointment with the pediatrician was recommended, as well as a follow-up appointment if symptoms persisted with continued seizure frequency. To further substantiate the objection, access to the files was requested, which was granted to the applicant's legal representative by the respondent through the sending of the relevant "file" by letter dated April 9, 2019.
On April 11, 2019, the applicant's legal representative filed a motion for preliminary injunction seeking approval of the requested neurological diagnostic services, citing the aforementioned medical certificates and the previously submitted grounds for the objection. The applicant stated that she urgently required a neurological evaluation of her condition. Despite medication, her epileptic seizures were becoming more frequent, and she exhibited self-harming behavior. A further medical certificate from the treating pediatrician, dated May 1, 2019, was also submitted. This certificate, issued by the pediatrician, further noted, among other things, severe developmental delay and behavioral disorder as a consequence of West syndrome. The certificate emphasized that regular neurological monitoring, including EEG, neurological examination, medication adjustments, etc., is essential for children with such severe epileptic disorders. Normal laboratory results and a normal pediatric-internal examination do not rule out a worsening of the epilepsy in this most severe form, so a more detailed neurological examination with EEG should be performed as soon as possible. Furthermore, a further certificate from the aforementioned clinic at the University Medical Center Göttingen (UMG) dated May 2, 2019, was also submitted, stating that follow-up care by a pediatrician is insufficient. This is a severe and therapy-resistant epilepsy that urgently requires pediatric neurological care in a specialized outpatient clinic for childhood epilepsy, either in Kassel or Göttingen.
The respondent opposed the application. He argued that neither a claim for nor grounds for the order had been substantiated, and that the local employment office's medical service, consulted again on this matter, concurred with the aforementioned recommendations of the University Medical Center Göttingen (UMG) of March 20, 2019, which precluded urgency and furthermore made it clear that the disputed benefit was not essential within the meaning of Section 6 of the Asylum Seekers' Benefits Act (AsylbLG). The additional medical documents submitted did not alter this conclusion, and no further official medical opinion had been provided.
Regarding the respective further submissions of the parties, reference is made to the contents of the court file as a whole; likewise, reference is made to the administrative files of the respondent, the essential content of which, relevant to the present application proceedings, was also the subject of the decision-making process.
II.
The application for a preliminary injunction, received by the Social Court in Kassel on April 11, 2019, is admissible and, to the extent decided, is also well-founded in its entirety within the framework of the balancing decision to be made by the court here.
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) 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.
Pursuant 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. Pursuant to Sentence 1 No. 2, the court may also order immediate enforcement in whole or in part in cases where an objection or appeal does not have suspensive effect, and pursuant to No. 3, reinstate immediate enforcement in whole or in part in the cases specified in Section 86a Paragraph 3 of the SGG. If the administrative act has already been enforced or complied with at the time of the decision, the court may, pursuant to Section 86b Paragraph 1 Sentence 2 of the SGG, order the revocation of enforcement. According to Sentence 3, the reinstatement of suspensive effect or the order of immediate enforcement may be subject to conditions or limited in time. 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 Court Act (SGG), if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of a right. 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 substantial disadvantages. Pursuant to Section 86b, paragraph 4 of the SGG, the court then decides by order.
Regarding the merits of the applicant's request as a so-called action matter or regulatory order, based on the above statements, only Section 86b Paragraph 2 of the Social Court Act (SGG) is relevant.
The decision must therefore primarily be based on the prospects in the main proceedings. If a claim is clearly well-founded, the order is generally issued; if it is clearly unfounded, it is generally rejected.
If neither of these prerequisites is clearly met, a balancing of interests must be carried out within the scope 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 and the lower the probability that they can be reversed if the plaintiff prevails in the main proceedings, the less the interest in a preliminary ruling may be disregarded. In this respect, it suffices in such cases that a preliminary review of the facts and the law reveals 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), including those of November 22, 2002, 1 BvR 1586/02 and March 19, 2004, 1 BvR 131/04, the interest in a preliminary ruling or safeguarding of the asserted legal position may not be disregarded the more severe the burdens on the affected party that are associated with the denial of preliminary legal protection. Article 19 Paragraph 4 of the Basic Law (GG) requires preliminary legal protection in this respect, at least in cases concerning enforcement actions, if, 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 (see BVerfGE 79, 69 <74>; 94, 166 <216>). If courts base their decisions not on a balancing of conflicting interests but on the prospects of success in the main proceedings, they are obligated under Article 19, Paragraph 4, Sentence 1 of the Basic Law to justify the denial of preliminary legal protection on a thorough examination of the facts and the law. This also means that the examination of the prospects of success in the main proceedings must include questions of fundamental rights protection if there is cause to do so (see the 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, they are interrelated 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 the main action is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for the injunction, because no right worthy of protection exists. If, however, the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. As a rule, the application for a preliminary injunction should then be granted, even though a ground for the injunction cannot be entirely dispensed with in this case. 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 expedited proceedings, a decision must be made by weighing the consequences. This weighing regularly favors 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 must 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 amounts to a level of benefit indispensable for socio-cultural participation and is to be granted for a period that is not merely short-term, is generally to be provisionally satisfied if the factual or legal situation cannot 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 must regularly yield to the need to secure 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).
Taking these guidelines into account, it must first be further explained that, as the Social Court of Dresden (decision of December 6, 2018 – S 20 AY 63/18 ER, juris) ruled, it violates human dignity to deny a person entitled to benefits under Section 4 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) treatment deemed "urgently necessary" or "indicated" and "recommended" by the treating physicians, despite undisputed pain symptoms, even though this form of treatment is, according to the benefit provider, "common in the Federal Republic of Germany." Furthermore, considerations of migration policy, namely keeping benefits for asylum seekers and refugees low in order to avoid creating incentives for migration through a potentially high level of benefits compared internationally, cannot justify lowering the standard of benefits below the physical and socio-cultural minimum for subsistence, since the human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law (GG) is, according to the Federal Constitutional Court (BVerfG, judgment of July 18, 2012, 1), a fundamental right to human dignity. BvL 10/10) should not be relativized in terms of migration policy.
Furthermore, according to the Hessian State Social Court (decision of July 11, 2018, L 4 AY 9/18 B ER –, juris), the criteria of indispensability and safeguarding of health in Section 6 Paragraph 1 Sentence 1 Alternative 2 of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted broadly due to Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG). Sufficient, therefore, is the necessity for safeguarding health in the sense of a need for treatment that goes beyond minor illnesses. At least for persons who are not merely staying in the Federal Republic of Germany for a short time, medical care with all services according to Sections 47 et seq. of the Social Code (SGB XII) or the Social Code (SGB V) is required.
The Chamber concurs with these findings after its own review, which, based on the aforementioned legal requirements, leads to the justification of the asserted claim, at least within the framework of the balancing of interests to be made here. The Chamber considers the aforementioned medical documents to provide not only a convincingly credible claim for an injunction, but also grounds for such an injunction, and thus to be entirely sufficient. The comprehensibly coherent explanations, particularly those of relevant specialists, in the submitted certificates speak for themselves. In contrast, the respondent and the aforementioned medical examiner's statements reduce their analysis solely to the applicant's epileptic seizures, completely disregarding the complex medical history outlined by the specialists. The applicant does not suffer solely from conventional epilepsy. The further consequences of West syndrome are simply ignored. In this respect, the aforementioned reference to a reasonable waiting period for care under the German Social Code, Book V (SGB V), proves to be downright cynical, at least in the present case, where a school entry examination had already taken place and thus misses the point of the specific individual case.
The application was therefore to be granted in its entirety.
The decision on costs follows § 193 SGG.
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