VERDICT
In the legal dispute
xxx,
— Plaintiff —
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
— Defendant —
The 42nd Chamber of the Social Court of Hildesheim, without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), rendered the following judgment on October 2, 2019, through Judge xxx of the Social Court and the lay judges xxx and xxx:
- The defendant is ordered, by amending the decision of March 22, 2019 as modified by the appeal decision of April 29, 2019, to grant the plaintiff privileged benefits for April 2019 in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with SGB XII analogously in the amount of 315.47 euros.
- The defendant must reimburse the plaintiff for his extrajudicial costs.
- The appeal is admitted.
FACTS
The plaintiff seeks the granting of higher privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) — Social Assistance — by analogy for the month of April 2019.
The plaintiff, born in 19xx, is a Gambian national and entered Germany in 2015. On July 18, 2017, he entered into a vocational training contract as a roofing technician, commencing on August 1, 2017, and running until the end of July 2020. During his second year of apprenticeship, he was to receive a training allowance of €800. In April 2019, he earned €880 gross, or €705.98 net. He had no assets of value.
By decision dated March 22, 2019, the defendant granted the plaintiff privileged benefits for the period from December 1, 2018 to April 30, 2019, whereby 0,– euros were allocated to the month of April because she did not credit any allowance against the training allowance.
The plaintiff filed an objection on April 5, 2019, arguing that the pro rata heating costs had been wrongly disregarded. Furthermore, the failure to consider the income allowance under Section 82 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) violated the decision of the Lower Saxony-Bremen State Social Court (LSG) of February 13, 2018 — L 8 AY 1/18 B ER —.
By a remedial decision dated April 29, 2019, the defendant granted partial reimbursement of heating costs and rejected the objection in all other respects. The defendant reasoned that, according to the decree issued by the Lower Saxony Ministry of the Interior and Sport on March 4, 2019, the deduction of the allowance pursuant to Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII) was not required.
The plaintiff filed a lawsuit on May 15, 2019.
He argues:
The defendant correctly assumes the existence of a hardship case pursuant to Section 22 Paragraph 1 of the German Social Code, Book XII (SGB XII). However, he wrongly failed to consider the allowance from April 1, 2019. This defeats the purpose of equating benefit recipients with those under the German Social Code, Book II (SGB II). The purpose of the benefit, to create incentives for employment, remains unchanged.
The plaintiff requests that
The defendant is ordered, by amending the decision of March 22, 2019 as modified by the appeal decision of April 29, 2019, to grant the plaintiff the requested benefits monthly in the statutory amount from April 1, 2019, in accordance with the legal opinion of the court.
The defendant requests that
to dismiss the lawsuit.
Referring to the issued decisions, he argues that
the plaintiff has no entitlement to a deduction of the allowances pursuant to Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII), based on the decree and the supplementary information. For reasons of equal treatment, no allowance can be granted.
The parties unanimously waived their right to an oral hearing.
Regarding the further submissions of the parties, reference is made to the contents of the court file and the administrative file.
REASONS FOR DECISION
The lawsuit is successful.
The chamber was able to decide the legal dispute without an oral hearing because the parties had waived this right in accordance with Section 124 Paragraph 2 of the Social Court Act (SGG).
The defendant's decision of March 22, 2019, as amended by the decision on the objection of April 29, 2019, is unlawful to the extent stated and infringes the plaintiff's rights in this respect.
The plaintiff is entitled to privileged benefits in the amount of €315.47 for the disputed month of April 2019. The plaintiff is eligible for benefits under Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act (AsylbLG) and, after a 15-month reservation period, without having abused his rights by influencing the duration of his stay in Germany, meets the eligibility requirements of Section 2 Paragraph 1 of the AsylbLG, especially since the defendant rightly affirmed a hardship case under Section 22 Paragraph 1 of the German Social Code, Book XII (SGB XII).
The plaintiff had an undisputed need for assistance in the amount of €804.25 in April 2019. The court is convinced that the adjusted income must be deducted from this amount. The plaintiff received a training allowance of €880.00 gross, or €705.98 net. According to Section 82 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), an allowance of 30 percent of the gross income, or a maximum of 50 percent of the standard benefit level I, must be deducted. The defendant's argument that the decree of the Lower Saxony Ministry of the Interior of March 4, 2019, should be followed is unconvincing. The federal legislator's provision in Section 82 Paragraph 3 of the SGB XII cannot be overridden by a decree of a state ministry of the interior, nor by any state regulation whatsoever, because this is "not required." The authority to amend or suspend the normative provision of Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII) rests solely with the federal legislature, not with a state ministry. As long as federal norms are in force and have not been declared unconstitutional, the administration and courts are bound by them in the application of the law, pursuant to Article 20 Paragraph 3 of the German Basic Law (GG). The Chamber is therefore convinced that the decree is irrelevant to the application of the law in the present case, which is determined solely by federal norms. Furthermore, the non-application of Section 82 Paragraph 3 SGB XII to those receiving analogous benefits who are in vocational training would constitute unequal treatment compared to those receiving benefits under Section 19 Paragraph 1 or 2 SGB XII, who also have a hardship case under Section 22 Paragraph 1 SGB XII and are undertaking vocational training. This is because the exemption provision applies to these latter groups, particularly since it serves an incentive function. It is not apparent why this incentive function should not apply to those receiving analogous benefits. The Chamber is convinced that the legislator did not have such an intention, nor is it reflected in the wording of the law, so that unequal treatment contradicts the principle of equal treatment, since no permissible criterion for differentiation can be used.
Therefore, in addition to the allowance of €212 pursuant to Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII), the flat-rate allowance for work equipment of €5.20 must be deducted from the net income (€705.98), resulting in adjusted income of €488.78, which can be credited against the need for assistance, analogous to Section 82 of the SGB XII. This yields the calculated benefit entitlement of €315.47 (€804.25 minus €488.78). The contested decision of March 22, 2019, as amended by the appeal decision, only concerns the period from December 2018 to April 2019, so the subsequent period cannot be the subject of these legal proceedings.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Pursuant to Section 144, Paragraph 1, Sentence 1, No. 1, and Paragraph 2 of the Social Court Act (SGG), the appeal requires leave to appeal because the defendant's claim, amounting to €315.47, is below the threshold of €750.00. Leave to appeal is granted because the case is of fundamental importance.
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