DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
City of Kassel, represented by the Magistrate's Legal Department,
City Hall, 34117 Kassel,
Respondent,
The 12th Chamber of the Social Court of Kassel decided on July 13, 2020, through its presiding judge, Judge xxx of the Social Court:
- Upon the application received by the Kassel Social Court on June 24, 2020, by the applicant, who lives in communal accommodation and receives benefits from the respondent under the Asylum Seekers' Benefits Act, the respondent is ordered to grant the applicant, from June 24, 2020, provisionally until the decision in the main proceedings, i.e., the objection proceedings against the decision of June 22, 2020, against the respondent's decision of June 5, 2020 (file no.: 5014012285693), and, if the objection is rejected and a subsequent timely action is filed against the objection decision to be issued in this respect, also beyond that point, but at the latest until the decision in the first instance and as long as the applicant lives in communal accommodation and receives benefits from the respondent under the Asylum Seekers' Benefits Act, these benefits on the basis of standard benefit level 1 instead of standard benefit level 2.
- The respondent must reimburse the applicant for the necessary costs of the proceedings.
REASONS
The admissible application is justified to the full extent for the reasons stated by the applicant, the social court case law cited by him, and the court's instructions of July 3, 2020, and the further social court case law cited therein, based on the balancing decision to be made by the deciding chamber here.
Based on the constitutional case law cited by the applicant regarding the requirements for the content and scope of subsistence benefits and the determination of a dignified minimum standard of living, the statement by the German Caritas Association cited by the applicant on the draft bill for a Third Act Amending the Asylum Seekers' Benefits Act of March 29, 2019, and beyond the social court case law cited by him (including the decision of the Landshut Social Court of October 24, 2019, S 11 AY 64/19 ER; and the Oldenburg Social Court of June 9, 2020, S 25 AY 21/20 ER), there are, among other things, significant concerns regarding the constitutionality of the provisions in § 10 AY 22/19 B ER, as also held by the Mecklenburg-Western Pomerania State Social Court (decisions of May 11, 2020, L 9 AY 22/19 B ER and of June 10, 2020, L 9 AY 22/19 B ER, juris). Section 3a paragraph 1 number 2 letter b and Section 3a paragraph 2 number 2 letter b of the Asylum Seekers' Benefits Act (AsylbLG) regulate the levels of need for adult benefit recipients without partners who are accommodated in reception centers, communal living arrangements, or comparable accommodations. In this respect, the Higher Social Court of Mecklenburg-Western Pomerania has ruled that a constitutionally compliant interpretation of the provision requires, as an unwritten element of the offense, the actual and verifiable shared household management of the benefit recipient with other persons accommodated in the communal accommodation, for which the objective burden of proof (and, in expedited proceedings, the burden of presentation) lies with the benefit provider.
The constitutional concerns regarding the resulting higher benefit entitlement, at least in preliminary legal protection proceedings, are shared not only by the Social Court of Landshut, but also by the Social Court of Frankfurt (decision of January 14, 2020, S 30 AY 26/19 ER, juris), and by the Social Court of Freiburg (Breisgau) (decisions of December 3, 2019, S 9 AY 4605/19 ER, juris and of January 20, 2020, S 7 AY 5235/19 ER, juris). The Social Court of Munich (decision of February 10, 2020, S 42 AY 82/19 ER) also finds that the legislative construction of Section 3a Paragraph 1 No. 2 b), Paragraph 2 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) raises various difficult and unresolved constitutional questions in this respect. Differences in benefits between recipients of benefits under the Asylum Seekers' Benefits Act (AsylbLG) and those under Book XII of the German Social Code (SGB XII) are only justified if and to the extent that the needs of both groups have been properly determined in a transparent process. However, a corresponding survey of the consumer spending of those receiving benefits under the AsylbLG is lacking here. Without such a survey, the legislator's blanket assumption that strangers regularly manage their finances together like spouses or partners in a cohabiting relationship appears untenable. Synergies can be partially negated if other residents have been granted restrictions on their entitlement under Section 1a of the AsylbLG or if they receive benefits at lower standard rates. Furthermore, communal accommodations typically house strangers from different nations and cultural backgrounds. In this respect, it is reasonable to assume that, given the generally limited benefits provided under the AsylbLG, there is no special relationship of closeness and trust among the residents that would typically underlie shared financial management.
According to the Berlin Social Court (decision of May 19, 2020, S 90 AY 57/20 ER, juris), the provisions of Section 3a Paragraph 1 No. 2 Letter b and Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in a manner consistent with the constitution during the period of contact restrictions to contain the coronavirus pandemic (SARS-CoV-2 Containment Measures Ordinance; juris: CoronaVV BE 3) in such a way that they presuppose, as an unwritten element of the offense, the reasonable communal household management of the benefit recipient with other persons housed in the collective accommodation. If this is not the case, the benefit recipient must be granted benefits at the level of the standard benefit rate 1.
All of this, after its own review and in consultation with the adjudicating chamber, has resulted in the conclusion that, at least within the framework of a balancing of interests, the respondent is obligated to grant the applicant benefits from June 24, 2020, provisionally until the decision in the main proceedings, i.e., the objection proceedings against the decision of June 22, 2020, against the respondent's decision of June 5, 2020 (file no.: 5014012285693), and, if the objection is rejected and a subsequent timely action is brought against the objection decision to be issued in this respect, also beyond that point, but at the latest until the decision in the first instance and as long as the applicant lives in communal accommodation and receives benefits from the respondent under the Asylum Seekers' Benefits Act (AsylbLG), these benefits should be based on standard benefit level 1 instead of standard benefit level 2.
The following also applies here:
Until January 1, 2002, the authority of social courts to issue preliminary injunctions in cases other than those expressly stipulated in the Social Courts Act (SGG) derived directly from Article 19 Paragraph 4 of the Basic Law (GG) (see BVerfGE 46, p. 166). However, preliminary injunctions were generally not permitted to anticipate the final decision. Only in exceptional cases, in the interest of effective legal protection, could it be necessary to anticipate the decision on the merits, if legal protection would otherwise be unattainable and this would be unreasonable for the applicant.
The prerequisite for granting preliminary legal protection was that the affected party faced serious and unreasonable disadvantages that could not be averted by other means and that a decision on the merits would likely no longer be able to remedy, or only partially remedy. This applied at least to so-called "action proceedings," i.e., proceedings in which a citizen challenged the omission or refusal of a requested official act. The same applied, however, to so-called "appeal proceedings," in which a citizen claimed that their rights had been violated by a detrimental measure taken by public authorities. According to the established case law of the Chamber, preliminary legal protection in "appeals" could, in accordance with the fundamental principle of Section 80 Paragraph 4 Sentence 3 of the Code of Administrative Court Procedure (VwGO), generally be granted if there were serious doubts about the legality of an administrative act, i.e., if the success of the legal dispute in the main proceedings, i.e., in subsequent legal action, was at least as likely as its failure, and if the enforcement of a contested administrative act would have resulted in an unreasonable hardship for the applicant that was not predominantly justified by public interests (cf. in this regard the decision of the Hessian State Social Court of March 9, 2000, L 1 KR 226/00 ER, which, in addition to the prospects of success in the main proceedings, required the existence of significant disadvantages that made waiting for the decision in the main proceedings unreasonable). Furthermore, in "actions concerning performance", the focus was to be placed on the risk that a change in the existing state could frustrate or significantly impede the realization of the applicant's right, in accordance with Section 123 of the Administrative Court Procedure Act. Furthermore, preliminary injunctions were also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appeared necessary, especially in the case of ongoing legal relationships, to avert significant disadvantages, prevent imminent violence, or for other reasons (see, in general, Hessian State Social Court, decision of July 29, 1987, L 8 Kr 362/87 A with numerous further references, and decision of November 11, 1992, L 6 Ar 461/92 A in info-also 1993, pp. 59 et seq.; State Social Court for the State of North Rhine-Westphalia, decision of August 30, 1990, L 3 S 42/90 in info-also 1991, pp. 74 et seq.; Meyer-Ladewig, SGG, § 97 para. 20 et seq.; Timme, Der einstweilige Rechtsschutz in der Rechtsprechung der Landessozialgerichte [Preliminary Legal Protection in the Case Law of the State Social Courts]). NZS, 1992, 91 ff.).
Since January 2, 2002, preliminary legal protection has been expressly regulated in the SGG (Social Code, Book X), whereby the above principles continue to be observed.
In this respect, Section 86a Paragraph 1 Sentence 1 of the Social Court Act (SGG) initially stipulates that objections and appeals have suspensive effect, which, according to Sentence 2, also applies to constitutive and declaratory administrative acts as well as administrative acts with third-party effect. However, according to Paragraph 2 No. 1, the suspensive effect is waived for decisions concerning insurance, contribution, and assessment obligations, as well as for the demand for contributions, assessments, and other public charges, including any ancillary costs. Likewise, the suspensive effect is waived, for example, according to No. 3, for appeals in social security matters concerning administrative acts that reduce or withdraw ongoing benefits.
Pursuant to Section 86b Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), the court of first instance may, upon application, order immediate enforcement in whole or in part in cases where an objection or appeal has suspensive effect. Pursuant to Sentence 1 No. 2, the court may also order immediate enforcement in whole or in part in cases where an objection or appeal does not have suspensive effect, and pursuant to No. 3, reinstate immediate enforcement in whole or in part in the cases specified in Section 86a Paragraph 3 of the SGG. If the administrative act has already been enforced or complied with at the time of the decision, the court may, pursuant to Section 86b Paragraph 1 Sentence 2 of the SGG, order the revocation of enforcement. According to Sentence 3, the reinstatement of suspensive effect or the order of immediate enforcement may be subject to conditions or limited in time. Furthermore, according to Sentence 4, the court of first instance may, upon application, amend or revoke the measures at any time. Unless a case under paragraph 1 applies, the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute pursuant to Section 86b, paragraph 2, sentence 1 of the Social Court Act (SGG), if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of a right. According to sentence 2, 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. Pursuant to Section 86b, paragraph 4 of the SGG, the court then decides by order.
Regarding the merits of the applicant's request as a so-called action matter or regulatory order, based on the above explanations, only Section 86b Paragraph 2 of the Social Court Act (SGG) is relevant.
The decision must therefore primarily be based on the prospects in the main proceedings. If a claim is clearly well-founded, the order is generally issued; if it is clearly unfounded, it is generally rejected.
If neither of these prerequisites is clearly met, a balancing of interests must be carried out within the scope of discretion. In preliminary injunction proceedings, the courts must, when interpreting the applicable provisions, take into account the particular importance of the fundamental rights affected and the requirements of effective legal protection, and in particular consider the consequences of denying preliminary legal protection. The more severe the resulting burdens and the lower the probability that they can be reversed if the plaintiff prevails in the main proceedings, the less the interest in a preliminary ruling may be disregarded. In this respect, it suffices in such cases that a preliminary review of the facts and the law reveals grounds to believe that a claim exists for the requested performance (claim for an injunction).
This is because, according to the decisions of the Federal Constitutional Court (BVerfG), including those of November 22, 2002, 1 BvR 1586/02 and March 19, 2004, 1 BvR 131/04, the interest in a preliminary ruling or safeguarding of the asserted legal position may not be disregarded the more severe the burdens on the affected party that are associated with the denial of preliminary legal protection. Article 19 Paragraph 4 of the Basic Law (GG) requires preliminary legal protection in this respect, at least in cases concerning enforcement measures, if, without it, serious and unreasonable disadvantages would arise that cannot be averted in any other way and that the decision on the merits would no longer be able to remedy (cf. BVerfGE 79, 69 <74>; 94, 166 <216>). If courts base their decisions not on a balancing of conflicting interests but on the prospects of success in the main proceedings, they are obligated under Article 19, Paragraph 4, Sentence 1 of the Basic Law to justify the denial of preliminary legal protection on a thorough examination of the facts and the law. This also means that the examination of the prospects of success in the main proceedings must include questions of fundamental rights protection if there is cause to do so (see the decision of the Second Chamber of the First Senate of the Federal Constitutional Court of July 25, 1996, NVwZ 1997, p. 479).
The Hessian State Social Court (decision of March 21, 2007, L 7 AY 14/06 ER, with further references) held that the claim for an injunction and the grounds for the injunction do not exist in isolation; rather, they are interrelated in that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened disadvantage (the grounds for the injunction), and vice versa. This is because the claim for an injunction and the grounds for the injunction form a dynamic system due to their functional connection.
If the main action is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for the injunction, because no right worthy of protection exists. If, however, the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. As a rule, the application for a preliminary injunction should then be granted, even though a ground for the injunction cannot be entirely dispensed with in this case. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the facts and the law is not possible in the expedited proceedings, a decision must be made by weighing the consequences. This weighing regularly favors the citizen if their right, derived from the constitutional principle of the protection of human dignity in conjunction with the social welfare principle, to lead a life of human dignity would be jeopardized. In this respect, the applicant's fundamental rights must be comprehensively considered in the balancing of interests. Particularly in cases involving claims aimed, for example, at securing the socio-cultural minimum standard of living as an expression of the constitutionally protected human dignity (Article 1, Paragraph 1 of the Basic Law in conjunction with the social welfare principle), a potentially existing claim for an injunction, especially if it amounts to a level of benefit indispensable for socio-cultural participation and is to be granted for a period that is not merely short-term, is generally to be provisionally satisfied if the factual or legal situation cannot be fully clarified in expedited proceedings. This is because, within the framework of the required balancing of interests, the interest of the benefit provider in avoiding unjustified benefits must regularly yield to the need to secure the socio-cultural minimum standard of living that is currently attainable for the applicant (see, among others, the decisions of the Hessian State Social Court of July 27, 2005, L 7 AS 18/05 ER and of June 19, 2008, L 7 AS 32/08 B ER).
Taking these requirements into account, the prerequisites for issuing a preliminary injunction are met to the full extent decided here. In this respect, the Chamber adopts the aforementioned constitutional concerns raised by the applicant regarding the provisions of Section 3a Paragraph 1 No. 2 Letter b and Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG).
In this respect, the Chamber agrees with the Frankfurt Social Court (decision of January 14, 2020) that, on the one hand, the lower benefit level under standard benefit level 2 is likely to result in the applicant's socio-cultural/humane minimum standard of living, protected by the fundamental right in Article 1 Paragraph 1 of the Basic Law, which also applies in his capacity as an asylum seeker, not being met. On the other hand, a violation of the principle of equality under Article 3 Paragraph 1 of the Basic Law is likely, because there are compelling reasons to believe that the needs of residents of collective accommodations or communal accommodations within the meaning of Section 53 Paragraph 1 of the Asylum Act are not comparable to those of life partners or partners in cohabiting relationships, and thus the legislator treats unequal situations equally in Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act. According to the aforementioned provision, Section 28 of the German Social Code, Book XII (SGB XII), in conjunction with the Standard Needs Assessment Act and Sections 28a and 40 of the SGB XII, applies accordingly to beneficiaries under Section 2 Paragraph 1 Sentence 1, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or in a reception facility under Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard need in the amount of standard need level 2 is recognized for each adult person (No. 1). This meant that, for the single applicant, he was treated like a partner in a marital or cohabiting relationship with regard to the standard benefit level 2 applicable to him, even though the explanatory memorandum to the law shows that the new legal regulation was not preceded by any determinations regarding the specific needs of benefit recipients under the Asylum Seekers' Benefits Act (AsylbLG) who live in collective or communal accommodations, but rather the legislator simply assumed that communal accommodation would result in the same cost savings for the residents of such accommodations as would be the case in couple households.
The required balancing of interests and consequences, in light of the aforementioned explanations, leads to the conclusion that the applicant's interest in securing his subsistence minimum, while respecting the principle of human dignity, should be given greater weight than the respondent's fiscal interest in avoiding potentially unjustified benefit payments. This is all the more true given that the applicant's still precarious health situation, as evidenced by the file, would preclude shared living arrangements, not only in general but especially in the current societal climate, rendering the aforementioned economic considerations irrelevant. The fact that the applicant is housed with the respondent, taking his health situation into account, does not alter this conclusion. The aforementioned presumption rule would in any case already be refuted in this respect, especially if, according to his own statements, the applicant lives in communal accommodation but has a single room, his own access to the courtyard and his own toilet/shower, and uses the kitchen for himself alone, thus, in the Chamber's opinion, there are no synergy effects that could justify granting only the standard benefit level 2.
Therefore, it must be assumed that the applicant's constitutionally guaranteed minimum subsistence level is currently no longer secured, and if subsistence-securing benefits are not available, it must also be regularly assumed, as further explained above, that there is a ground for an order within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG).
The application was therefore granted in its entirety.
The decision on costs follows § 193 SGG.
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