DECISION
L 8 AY 32/20 B
S 42 AY 27/20 ER Social Court Hildesheim
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Holzminden District, represented by the District Administrator,
Bürgermeister-Schrader-Straße 24, 37603 Holzminden
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on May 4, 2020 in Celle through Judges xxx and xxx and Judge xxx:
Upon the applicant's appeal, the decision of the Hildesheim Social Court of March 20, 2020, insofar as it rejected the application for legal aid, is overturned.
The applicant is granted legal aid for the first-instance proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
Costs of the appeal proceedings are not to be reimbursed.
REASONS:
The applicant's appeal, which was filed in due form and time (§ 173 SGG) and is also admissible in all other respects, in particular permissible (cf. § 172 para. 3 no. 2 lit. b SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is well-founded. The Social Court (SG) Hildesheim wrongly rejected the application for legal aid.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous. Sufficient prospects of success in this sense are assumed if the court, based on a summary examination of the facts and the law, considers the applicant's legal position at least tenable and is convinced of the possibility of presenting evidence. The requirements for the factual and legal prospects of success must not be excessive (see Schmidt in Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th ed. 2017, Section 73a, marginal note 7a with further references).
Based on these criteria, the application for a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), seeking the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG), had sufficient prospects of success in the first instance. The legal action was also not frivolous.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)). The evidence must outweigh the evidence against the existence of a claim to performance. According to the jurisprudence of the Federal Constitutional Court (BVerfG, decision of May 12, 2005 – 1 BvR 569/05 –), if the court is unable to fully clarify the factual and legal situation in expedited proceedings, it must conduct a balancing of interests with regard to the protection of fundamental rights and comprehensively consider the applicant's fundamental rights interests. This applies in particular when it concerns the protection of human dignity and the safeguarding of a minimum standard of living.
Notwithstanding the allegation of an abuse of rights pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (the applicant's disappearance from the beginning of May 2017 to mid-March 2018), the prospects of success of the urgent application were already considered sufficient for the granting of legal aid because the granting of benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act, taking into account the standard benefit level 2 for beneficiaries in collective accommodations, was also (or had been) disputed. The compatibility of this method of calculating benefits pursuant to Section 3a Paragraph 1 No. 2 lit. b and Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (or pursuant to Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act) with the fundamental right to a guaranteed minimum standard of living that ensures human dignity (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law) is – measured against the procedural requirements established by the jurisprudence of the Federal Constitutional Court (see in detail Federal Constitutional Court of 9 February 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – juris para. 133-139) – a subject of controversial debate in case law and legal literature (Social Court Landshut, decision of 24 October 2019 – S 11 AY 64/19 ER – juris para. 53). ff.; Social Court of Hanover, decision of 20 December 2019 – S 53 AY 107/19 – juris para. 6 ff.; Social Court of Frankfurt, decision of 14 January 2020 – S 30 AY 26/19 ER – juris para. 16 ff.; Social Court of Munich, decision of 10 February 2020 – S 42 AY 82/19 ER – juris para. 53 ff.; Frerichs in jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG para. 42 ff.). In some cases, a constitutionally compliant interpretation of the regulations is advocated, according to which the application of needs level 2, as an unwritten criterion, presupposes the actual and verifiable communal household management of the benefit recipient with other persons housed in the collective accommodation (Social Court Landshut, judgment of 23 January 2020 – S 11 AY 79/19 ER – juris para. 40 et seq.; Social Court Landshut, judgment of 28 January 2020 – S 11 AY 3/20 ER – juris para. 63 et seq.; Social Court Munich, judgment of 10 February 2020 – S 42 AY 82/19 ER – juris para. 56 et seq.; see also Frerichs in jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG para. 44).
It is unreasonable to expect an applicant who relies on benefits under the Asylum Seekers' Benefits Act (AsylbLG) to cover his living expenses to bear the costs of legal proceedings himself, even partially or in installments.
The appointment of the lawyer is based on Section 73a of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
The decision on costs follows from § 73a SGG in conjunction with § 127 para. 4 ZPO.
This decision is final and cannot be appealed, § 177 SGG.
