DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
– Respondent –
The 42nd Chamber of the Hildesheim Social Court decided on February 10, 2020, through Judge xxx of the Social Court:
- The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally subject to the right of recovery, further privileged benefits pursuant to Section 2 Paragraph 1 AsylbLG in conjunction with SGB XII analogously in the amount of 112 euros for the period from November 6th to November 30th, 2019, and a further 131.20 euros for December 2019.
- Furthermore, the application is rejected.
- The respondent must reimburse the applicant for his extrajudicial costs.
REASONS
The application for higher privileged benefits by way of preliminary legal protection has been largely successful for the still disputed period from November 6th to December 31st, 2019.
Pursuant to Section 86b, paragraph 2 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute, provided that a case under paragraph 1 does not apply, if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. 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. The court of first instance is the court of first instance.
A prerequisite for issuing the requested regulatory order pursuant to Section 86b, paragraph 2, sentence 2 of the Social Court Act (SGG) is, in addition to the particular urgency of the regulation (ground for the order), a claim by the applicant to the requested regulation (claim for the order). The ground for the order and the claim for the order must be substantiated (Section 86b, paragraph 2, sentence 4 SGG in conjunction with Section 920, paragraph 2 of the Code of Civil Procedure (ZPO)). Insofar as the prospects of success are considered in connection with the claim for the order, the factual and legal situation must be examined not merely summarily, but conclusively (cf. decision of the Federal Constitutional Court of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing credibility relates only to the reduced intensity of the review and the need for a preponderance of probability to demonstrate the factual prerequisites of the claim for an order and the grounds for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, info also 2005, 3, 8).
The applicant has credibly demonstrated both his entitlement to and the grounds for the injunction. The court is convinced that he is entitled to higher privileged benefits for the period from November 6 to 30, 2019, and for December 2019. The entitlement to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is undisputed between the parties, particularly since the applicant has fulfilled the 15- or 18-month waiting period and has not abused his rights by manipulating the duration of his stay in Germany. A tax-free allowance of €200 is to be deducted from his income from the Federal Volunteer Service. The court follows the judgment of the Bavarian State Social Court (LSG) of September 27, 2018 – L 8 SO 18/16 – which applies Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII), whereby the discretion is reduced to zero insofar as the tax-free allowance of €200 must be deducted. The legislator closed this unintended regulatory gap by amending Section 82 Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII) as of January 1, 2020.
Based on this, the applicant's income of €345.26 received in November 2019 is subject to the following deductions: €200.00 plus €58.58.00 (Section 82 Paragraph 3 Sentence 1 SGB XII) and the flat-rate allowance for work equipment of €5.20, leaving €131.48 to be considered as income. The respondent incorrectly included €271.48, so the difference of €140.00 must be granted in proportion to 24/30. In December 2019, the applicant earned €245.26, from which €200.00, €13.58.00, and €5.20.00 are to be deducted, leaving €26.48 as adjusted income. With a standard allowance of 424 euros, this is reduced to 397.52 euros, from which the granted 212.32 euros and the 14 and 40 euros paid elsewhere must be deducted, leaving a claim for additional payment of 140 euros.
The Chamber is convinced that there is a particular urgency, indicated by the not insignificant claim to benefits, especially since the deduction of tax allowances has a motivational function for those performing federal voluntary service.
The decision on costs follows analogously from Section 193 of the Social Court Act (SGG). Due to the partial admission of liability and the minor share of the loss, no cost allocation was to be determined.
This decision is final and unappealable (§ 172 paragraph 1 no. 3, 144 paragraph 1 sentence 1 no. 1 SGG), because the amount in dispute for the period from November 6th to December 31st, 2019, which is contested after the partial admission, is less than 750 euros.
