DECISION
In the litigation
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 the judge at the Social Court xxx:
- By way of an interim order, the respondent is obliged to provisionally provide the applicant with further privileged benefits in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with SGB and to grant a further 131.20 euros for December 2019.
- Otherwise the application is rejected.
- The respondent must reimburse the applicant for his extrajudicial costs.
REASONS
The application for the granting of higher privileged benefits by way of interim legal protection was largely successful for the still disputed period from November 6th to December 31st, 2019.
According to Section 86 b Paragraph 2 of the Social Court Act (SGG), the court in the main case can, if a case in paragraph 1 does not apply, issue an interim order with regard to the subject of the dispute if there is a risk that a change in the existing situation the realization of a right of the applicant could be thwarted or made significantly more difficult. Interim orders are also permissible to regulate a temporary situation in relation to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. The court of the main case is the court of the first court.
The prerequisite for the issuance of the requested regulatory order according to Section 86 b paragraph 2 sentence 2 SGG is, in addition to the particular urgency of the regulation (reason for the order), the applicant's claim to the requested regulation (claim for the order). The reason for the order and the claim for the order must be made credible (Section 86 b 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 taken into account in connection with the claim for an order, the factual and legal situation must be examined not only summarily but conclusively (see decision of the Federal Constitutional Court of May 12, 2005 - 1 BvR 569/05 -). Furthermore, the credible justification refers only to the reduced density of examinations and the certainty of belief, which only requires a preponderance of probability, for the actual requirements of the claim for an order and the reason for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 - L 7 AS 1/05 ER -, and from February 12, 1997 - L 7 AS 225/06 ER -; Berlit, info also 2005, 3, 8).
The applicant has credibly demonstrated both the entitlement to the order and the reason for the order. The chamber is convinced that he is entitled to higher privileged benefits for the period from November 6th to 30th, 2019 and for December 2019. The entitlement to benefits according to Section 2 Paragraph 1 AsylbLG is undisputed between those involved, especially since the applicant is aged 15 or He has fulfilled the 18-month waiting period and has not improperly influenced the duration of his stay in the federal territory. An allowance of 200 euros must be deducted from income from federal voluntary service. The Chamber follows the judgment of the Bavarian LSG of September 27, 2018 - L 8 SO 18/16 - which applies Section 82 Paragraph 3 Sentence 3 SGB is to be discontinued. The legislature closed this unplanned regulatory gap by amending Section 82 Paragraph 2 Sentence 2 SGB XII from January 1, 2020.
Based on this, the applicant's income of 345.26 euros in November 2019 is deducted from the 200 euros plus 58.58 euros (Section 82 Paragraph 3 Sentence 1 SGB 131.48 euros can be taken into account. The respondent wrongly credited 271.48 euros, so that the difference of 140 euros must be granted 24/30. In December 2019, the applicant earned 245.26 euros, of which 200 euros, 13.58 euros and 5.20 euros are to be deducted, leaving 26.48 euros as adjusted income. With a standard requirement of 424 euros, this is reduced to 397.52 euros, of which the 212.32 euros granted and 14 and 40 euros paid elsewhere must be deducted, so that a claim for additional payment of 140 euros remains .
The Chamber is convinced that there is a particular urgency and is indicated by the not insignificant benefit entitlement, especially since the deduction of the allowances has a motivating function for those who perform the federal voluntary service.
The cost decision follows analogously from Section 193 Paragraph SGG. Due to the partial recognition and the small proportion of defeat, no expense ratio was to be formed.
This decision is incontestable (Section 172 Paragraph 1 No. 3, 144 Paragraph 1 Sentence 1 No. 1 SGG) because the complaint for the period in dispute after the partial recognition from November 6th to December 31st, 2019 was less than 750 euros amounts.
