VERDICT
In the legal dispute
xxx,
— Plaintiff —
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District, represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
— Defendant —
The 38th Chamber of the Social Court of Hildesheim, without oral proceedings, rendered the following judgment on July 14, 2020, by the judges of the Social Court xxx, as well as lay judge xxx and the lay judge for law:
1. The decision of 19 July 2017, as amended by the appeal decision of 26 October 2017, is hereby revoked.
2. The defendant shall reimburse the plaintiff for her necessary extrajudicial costs.
FACTS
The parties are in dispute over the legality of a reduction of unemployment benefit II amounting to 10% of the standard benefit applicable to the plaintiff due to a failure to report to the authorities within the framework of benefits to secure subsistence under the Second Book of the Social Code (SGB II).
The plaintiff was receiving ongoing benefits under the German Social Code, Book II (SGB II). Most recently, the defendant granted her benefits for the period up to August 2018 by decision dated July 19, 2017.
By letter dated May 8, 2017, the defendant invited the plaintiff to an initial consultation at the Hann. Münden Job Academy on May 22, 2017. The invitation letter stated that it was an invitation pursuant to Section 59 of the German Social Code, Book II (SGB II), in conjunction with Section 309 of the German Social Code, Book III (SGB III). Participation in the Job Academy is open to everyone. It offers immediate support in the job search. A fully equipped workspace and all necessary materials are available for this purpose. The staff and other participants support participants in their job search efforts. The goal is to enable participants to support themselves as quickly as possible. The information regarding the legal consequences of non-compliance with the invitation letter states, among other things:
"If you do not appear for your appointment on that day and cannot provide a valid reason, I will reduce your unemployment benefit II (§ 32 SGB II).".
One important reason for missing an appointment can be illness. A certificate of incapacity for work issued by your doctor is generally sufficient proof of illness. However, since not every illness prevents you from attending an appointment, you must submit a certificate of being bedridden instead of the general certificate of incapacity for work. This certificate should confirm that your doctor was unable to attend the appointment with the benefits provider on the specified date due to your illness
In an email dated May 10, 2017, the plaintiff cancelled the appointment, stating that she was fulfilling her obligation to end her unemployment by regularly applying for jobs and that the documentation she provided to her case managers ensured that her job search was up-to-date. She further stated that there was no obligation to attend this consultation.
On May 29, 2017, the defendant notified the plaintiff of a potential sanction amounting to 10% of her standard benefit payment for her unexcused absence from the aforementioned appointment. In response, she stated in a letter dated June 16, 2017, that she had already informed the defendant by email that she saw no need to participate in the program. She explained that she had completed job application training in 2010 and that there had been no objections to her applications to date.
By decision dated July 19, 2017, the defendant reduced the plaintiff's benefits by 10% for the period from August to October 2017, arguing that the plaintiff had failed to appear at the aforementioned appointment without excuse.
The plaintiff filed an objection to this decision by letter dated August 6, 2017, and her authorized representative filed a written objection by letter dated August 3, 2017. In support of her objection, the plaintiff argued that a sanction for missing an appointment for a measure could only be imposed after the conclusion of an integration agreement (EGV). A reporting obligation existed only to the case manager. Furthermore, the plaintiff argued that such a sanction was unconstitutional because it violated Articles 1, 2, 11, 12, and 20 of the Basic Law (GG).
On September 5, 2017, the defendant issued an administrative act to the plaintiff as a substitute for an integration agreement. Section 1 of this act stipulates the plaintiff's obligation to participate in the Job Academy as one of her responsibilities. It states that the program would commence on September 18, 2017, and that the plaintiff was obligated to attend 32 individual sessions, three times a week, for three hours each session.
By decision dated October 26, 2016, the defendant rejected the plaintiff's appeal of August 3/6, 2017. In support of this decision, the defendant essentially reiterated the arguments already presented in the administrative proceedings. The plaintiff's duty to cooperate was not limited to simply sending out job applications. The plaintiff had not submitted a certificate of being bedridden. Employable benefit recipients must actively participate in all measures aimed at their integration into the workforce. This duty to cooperate also included attending appointments at the Job Academy. The information regarding the legal consequences of failing to attend, included in the invitation letter, had informed the plaintiff that she would need a certificate of being bedridden in the event of illness and that a standard certificate of incapacity for work was insufficient. The meeting was not the plaintiff's first appointment at the Job Academy, but rather an interview to determine whether she was indeed suitable for participation in the Job Academy.
The plaintiff filed the present lawsuit with the local Social Court in Hildesheim by letter dated October 30, 2017.
The instruction regarding the legal consequences was insufficient, as the plaintiff was not informed in the instruction regarding the legal consequences that she could also appear at a later time on the day of the hearing.
The plaintiff requests in writing,
to overturn the defendant's decision of 19 July 2017 as amended by the appeal decision of 26 October 2017.
The defendant submits a written request,
to dismiss the lawsuit.
The statement that arriving later on the day of the appointment would also be harmless is not a mandatory part of the legal consequences information.
The appointment was also in accordance with Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 Paragraph 2 of the German Social Code, Book III (SGB III). The purpose of the appointment was job placement. The Job Academy is a special form of case management offered by the Göttingen district and, as such, is an essential component of the integration concept. An initial interview for this Job Academy thus serves a reporting purpose covered by the provisions of Section 59 SGB II in conjunction with Section 309 Paragraph 2 SGB III, namely, job placement. The initial interviews at the Job Academy are conducted by the Job Academy's case managers (job coaches) with the integration clients. They serve to integrate the clients into the placement process as quickly as possible. The exchange of information serves both for potential analysis and for preparation for participation in the Job Academy, including an explanation of the existing procedures and structures.
For further details of the facts and the legal arguments, reference is made to the court file (GA) and the defendant's administrative file (VA). These were available and formed the basis of the decision.
REASONS FOR DECISION
The court was able to decide the matter by judgment without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), because both parties agreed to this.
The admissible claim is unfounded.
The defendant's decision of July 19, 2017, as amended by the appeal decision of October 26, 2017, is unlawful and infringes the plaintiff's rights. The court is convinced that the prerequisites for the reduction of benefits pursuant to Section 32 of the German Social Code, Book II (SGB II), are not met.
Thereafter, unemployment benefit II or social assistance for beneficiaries is reduced by 10 percent of the standard benefit rate applicable to them under Section 20 if, despite written notification of the legal consequences or awareness thereof, they fail to comply with a request from the responsible agency to report to them or to appear for a medical or psychological examination. The court is convinced that these conditions are not met, as the notification of legal consequences was inaccurate. According to established case law, notification of legal consequences is sufficient if it is specific, correct, complete, and timely in connection with the required conduct and explains to the beneficiary in an understandable manner the immediate and concrete consequences of refusing the required conduct if there is no valid reason for doing so. However, according to established case law, notification of legal consequences must also not contain superfluous or incorrect information that could confuse or deter the beneficiary. This is precisely the case here. The information regarding legal consequences states that illness can constitute a valid reason for not attending an appointment. A certificate of being bedridden is required for this purpose. However, to prove that illness prevents someone from attending an appointment, even a standard certificate of incapacity for work is not necessary. The valid reason must be objectively verifiable, meaning that even without a certificate of incapacity for work, the illness-related impediment can be proven, if necessary, by other evidence such as witnesses (see Weber in Schlegel/Voelzke, jurisPK-SGB II, 5th edition, § 32, para. 49). By stating in the information regarding legal consequences that a certificate of being bedridden is necessary if illness constitutes a valid reason, the defendant creates the impression that this is the only way to prove the valid reason. Therefore, the information regarding legal consequences is incorrect—the superfluous or inaccurate information is likely to deter benefit recipients from asserting illness as a valid reason. According to higher court rulings, the benefit provider can indeed request that a medical certificate be submitted in the future, stating that the summoned person is unable to attend an appointment due to illness. However, according to case law, this is only permissible in justified exceptional cases, e.g., in cases of repeated failure to report (see Weber, loc. cit., para. 50 with further references). Such a case is not apparent here with regard to the invitation of May 8, 2017, nor has it been alleged by the defendant. However, by including in the general statement in the legal consequences information that such a certificate is necessary, the defendant falsely creates the impression—regardless of any potentially existing exceptional case—that it is necessarily required in every instance.
The defendant himself must have recognized that the legal consequences notice in the form used here is not lawful, since he omitted the requirement to submit a certificate of being bedridden in the legal consequences notices of the other invitation letters pending in parallel proceedings.
It is merely added that the court continues to have considerable doubts about the admissibility of a reduction in benefits pursuant to Section 32 of the German Social Code, Book II (SGB II). The court is convinced that the invitation is not a simple appointment for reporting, but rather an invitation to a training measure as defined in Section 2, Paragraph 1, Sentence 2 of the SGB II. The defendant himself appears to share this view, as the administrative act, issued on September 5, 2017, as a replacement for an integration agreement (EGV), obligates the plaintiff to participate in the job academy and states that the measureis scheduled to begin on September 18, 2017. Furthermore, the fact that this is not a one-off appointment, but rather that the plaintiff is subsequently obligated to attend at least 32 sessions, three times a week, supports this conclusion. This is evident both from the administrative act, which replaced an integration agreement (EGV) dated September 5, 2017, and from the detailed explanation provided by the Job Academy to the defendant in the expedited proceedings under file number S 38 AS 4303/17 ER. However, a refusal to participate in a measure must be sanctioned under Section 31 of the German Social Code, Book II (SGB II), and cannot be sanctioned under Section 32 SGB II. Furthermore, a prerequisite for sanctioning a refusal to participate in a measure is that the plaintiff was assigned to that measure, which in this case only occurred with the administrative act, which replaced an integration agreement (EGV) dated September 5, 2017. The simple invitation letters to the "initial interview" for the measure are insufficient to conclude that the plaintiff was assigned to the measure. Contrary to the defendant's assertion in the contested appeal decisions, this was not merely a consultation appointment intended to determine the plaintiff's suitability for participation in the Job Academy. The wording of the invitations, which refer to an "initial interview," contradicts this interpretation. While the defendant is correct that the invitation initially only called for a "conversation," the use of the term "initial interview" suggests—especially from the perspective of someone without legal expertise—that this was already the first meeting of the program to determine its further implementation. The rest of the invitation's wording also supports this interpretation. It states verbatim that everyone participates in the job academy and that the staff and other participants support the plaintiff in her efforts. Even with a reasonable interpretation of the wording, this can only be understood to mean that participation is already confirmed and that the initial interview is the first appointment of the program, at which the course for further participation will be set.
The decision on costs follows from Section 193 Paragraph 1 Sentence 1 of the Social Court Act (SGG).
The following is information on legal remedies.
