DECISION
L 8 SO 121/19 B
S 34 SO 129/17 Social Court Hildesheim
In the appeal proceedings
xxx,
– Plaintiff and appellant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District, Legal Department, represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on June 24, 2019 in Celle through Judges xxx, xxx and xxx:
Upon the plaintiff's appeal, the decision of the Hildesheim Social Court of April 15, 2019 is overturned.
Costs of the appeal proceedings are not to be reimbursed.
REASONS:
I.
In the context of granting legal aid, the change in the appointment of another lawyer instead of the relieved one is in dispute, in particular the reservation of additional costs in favor of the state treasury.
To enforce his claim for initial furnishings for his apartment, including household appliances, using social assistance funds, the plaintiff was granted legal aid without payment of court fees (PKH) by a decision of the Hildesheim Social Court (SG) dated March 1, 2018, with the appointment of a lawyer. After payment of an advance from the state treasury, the plaintiff, who had already decided at the beginning of March 2018 no longer wished to be represented by the (initially) appointed lawyer, was granted a motion to appoint a different lawyer without payment of court fees, as amended by the decision of March 1, 2018 (decision of the SG dated February 19, 2019). With the withdrawal of the lawsuit at the end of March 2019, the now appointed lawyer also applied to the SG for reimbursement of the fees and expenses by the state treasury.
The Social Court (SG) subsequently decided – without hearing the plaintiff and without providing reasons – “clarifying the decision of February 19, 2019,” among other things, that fee claims already incurred during the appointment of the dismissed attorney must be credited to the newly appointed attorney, insofar as the same fee-generating event is concerned (decision of April 15, 2019). On April 24, 2019, the Social Court also set the attorney's fees and expenses at €380.80, but refused payment of this amount, citing the Social Court's decision of April 15, 2019. As far as can be ascertained, no decision has yet been made on the appeal filed against this decision.
The plaintiff's appeal of April 26, 2019, is directed against the Social Court's decision of April 15, 2019. He argues that the appointment of counsel by the Social Court's decision of February 19, 2019, was not conditional upon the state incurring no additional costs, and that the decision of April 15, 2019, therefore cannot retroactively have any effect in this respect. Under these conditions, the appointed lawyer would not have accepted the representation in the proceedings.
The appeal, filed in due form and time (§ 173 SGG), is admissible, in particular pursuant to § 172 para. 1 SGG; the exclusion of appeals under § 172 para. 3 no. 2 b) SGG does not apply to the revocation or, in this case, the amendment of a previously granted legal aid order pursuant to § 73a SGG in conjunction with § 124 ZPO (see Karl in juris-PK-SGG, 1st ed. 2017, § 172 para. 165 with further references). The appeal is also well-founded. The Social Court wrongly amended its decision of February 19, 2019, concerning the dismissal of the initially appointed attorney and the appointment of the new attorney, by its decision of April 15, 2019.
The possible legal basis for the contested decision is Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 124 Paragraph 1 of the Code of Civil Procedure (ZPO). According to this provision, the court is to revoke the grant of legal aid in certain cases, such as an incorrect representation of the dispute (No. 1) or incorrect information about personal or financial circumstances (No. 2). The Senate leaves open the question of whether the scope of application of Section 124 ZPO – beyond the provision of Section 120a ZPO (subsequent amendment of the grant due to a significant change in personal or financial circumstances) – can also include the amendment of a legal aid decision for other reasons (cf., for example, Kießling in Sänger, ZPO, 8th ed. 2019, Section 124, marginal note 2). Before a legal aid grant is revoked or amended, the person concerned must be heard (see, for example, Brandenburg Higher Regional Court – OLG –, decision of August 22, 2018 – 13 WF 147/18 – juris para. 7 with further references).
In accordance with these provisions, the decision of the Social Court of April 15, 2019, does not merely clarify the conditions for the appointment of the new lawyer, but rather constitutes a substantive amendment to the decision of February 19, 2019. In addition to the possibility of resignation upon application by the appointed lawyer pursuant to Section 48 Paragraph 2 of the Federal Lawyers' Act (BRAO), a party or participant may also request the resignation of their appointed lawyer at any time, without the need for a compelling reason. However, she is only entitled to the appointment of a different lawyer if this does not result in higher costs for the public treasury, unless further cooperation with her previous lawyer was no longer reasonable through no fault of her own (see, for example, Higher Regional Court of Nuremberg, decision of January 13, 2003 – 4 W 66/03 – juris para. 6 et seq. with further references; see also Federal Court of Justice, decision of October 31, 1991 – XII ZR 212/90 – juris para. 2). This reservation of additional costs in favor of the state treasury was subsequently ordered by the contested decision. It is not a mere clarification of the decision of February 19, 2019, because its wording provides no basis whatsoever for such a (determined) reservation.
The decision is unlawful both formally and substantively because the plaintiff was not heard. The requirements for amending the decision of the Social Court of February 19, 2019, pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Procedure Act (SGG) in conjunction with Section 124 Paragraph 1 of the Code of Civil Procedure (ZPO), are not met. The plaintiff did not provide any incorrect information in connection with his application to dismiss his previous attorney and appoint a new one, nor with the question of the reasonableness of continued cooperation with the initially appointed attorney; moreover, the grounds for amending the decision under Section 124 Paragraph 1 of the Code of Civil Procedure are not applicable.
The decision on costs is based on Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed, § 177 SGG.
