DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Waldeck-Frankenberg district, represented by the district council,
Südring 2, 34497 Korbach
Respondent,
The 9th Chamber of the Marburg Social Court decided on August 28, 2020, through its presiding judge, Judge xxx:
The suspensive effect of the applicant's objection of 28 April 2020 is ordered.
The respondent is ordered by way of preliminary injunction to grant the applicant benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act, in analogous application of Book Twelve of the Social Code, based on standard benefit level 1, from April 29, 2020, until a decision is reached in the main proceedings initiated by the objection of April 28, 2020, against the granting of benefits from April 1, 2020, and, in the event of rejection of the objection and subsequent timely filing of an action against the objection decision to be issued in this respect, beyond that date, but at the latest as long as the applicant receives benefits under the Asylum Seekers' Benefits Act from the respondent while living in communal accommodation and at the latest until March 2, 2021.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The parties are in dispute over the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born on xx.xx.1984, is an Ethiopian national and was assigned to the respondent for admission by a decision of the Darmstadt Regional Council dated 03.02.2016.
She initially lived with her husband and their two children, aged four and nine. After separating from her family, she lived alone in municipally rented apartments in xxx (pp. 40/106/294 of the administrative file). The separation from her family resulted from incidents of domestic violence perpetrated by the applicant against the children (pp. 17 et seq. of the administrative file). According to the administrative file, the applicant suffered from mental health problems since her referral (p. 18 of the administrative file). From January 25, 2018, to February 6, 2018, she was an inpatient at the Vitos Clinic for Psychiatry and Psychotherapy in Haina. In the clinic's preliminary discharge report dated February 6, 2018, the applicant was diagnosed with, among other things, post-traumatic stress disorder. The medical history shows that the applicant cited the death of many family members, including nine of her twelve siblings, as well as concern for her siblings still living in crisis regions as the cause of her psychological problems (pp. 19 ff. of the administrative file).
By decision of the respondent dated January 6, 2020, following a prior hearing by letter dated December 20, 2019, the applicant was provided with accommodation in the communal accommodation xxx for foreign refugees in xxx (p. 285 of the administrative file). The applicant has been living in this communal accommodation since March 3, 2020 (p. 327 of the administrative file).
The applicant's asylum application was rejected. This decision became legally binding on November 28, 2017, following the judgment of the Kassel Administrative Court of September 5, 2017. The subsequent asylum application of September 18, 2018, was also rejected. This decision became legally binding on February 25, 2020, following the judgment of the Kassel Administrative Court of November 25, 2019 (page 345 of the administrative file).
The applicant has been receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) from the respondent for some time. By decision dated February 15, 2018, the respondent granted the applicant benefits under Section 2 of the AsylbLG (old version) for the month of February 2018 (pp. 13 et seq. of the administrative file).
During the months of March to July 2018, the applicant also received benefits from the respondent in accordance with Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version.
By decision dated July 26, 2018, following a prior hearing by letter dated July 12, 2018, the respondent granted the applicant reduced benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in its former version for the month of August 2018, because the applicant had not cooperated in obtaining a travel document for her return. Specifically, despite a request from the Kassel Regional Council, she had not signed an application form for a passport. The reduction in benefits was limited to a period of six months. The benefit was granted in monthly increments (pp. 62 ff. of the administrative file).
The applicant, through her legal representative, filed an objection to the benefit reduction by letter dated September 18, 2018 (pp. 67 et seq. of the administrative file). This objection procedure is still pending today (p. 18 of the court file).
During the months of September 2018 to January 2019, the applicant also received reduced benefits from the respondent in accordance with Section 1a AsylbLG a. F.
By decision dated February 19, 2019, the respondent again granted the applicant reduced benefits in accordance with Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in its former version for the month of February 2019. The reduction in benefits was limited to a period of six months. The benefit was granted for one month at a time (pp. 99 et seq. of the administrative file).
The applicant, through her legal representative, filed an objection to the benefit reduction by letter dated March 13, 2019 (pp. 118 et seq. of the administrative file). This objection proceeding is still pending today (p. 18 of the court file).
In the months from March 2019 onwards, the applicant also received reduced benefits from the respondent in the form of vouchers or cash benefits in accordance with Section 1a AsylbLG a. F.
On March 2, 2020, the applicant submitted a new application for benefits under the Asylum Seekers' Benefits Act (page 319 of the administrative file).
By letter dated March 18, 2020, the applicant was notified by the respondent of a proposed reduction in benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG). The reason given for the proposed reduction was that the applicant had failed to cooperate in obtaining a travel document for her return. Despite a request from the Kassel Regional Council, the applicant refused to sign the passport application (page 330 of the administrative file).
In the months from March 2020 onwards, the applicant received reduced benefits from the respondent in the form of vouchers or cash benefits in accordance with Section 1a AsylbLG.
By letter dated 28 April 2020, the applicant, through her legal representative, lodged an objection against the granting of benefits for the period from 1 April 2020 (pp. 12 et seq. of the court file).
On April 29, 2020, the applicant, through her legal representative, filed an application for a preliminary injunction against the respondent. In the application, the applicant's legal representative argued that the principle of cost savings, which is generally intended for couples living in need levels 2, is not applicable to individuals living in communal accommodations. The underlying legal provisions are unconstitutional. The applicant maintains that she is entitled to the full standard benefit rate on a provisional basis. The reductions made pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are unlawful, particularly due to their implementation without a formal decision. She asserts that she is entitled to benefits under Section 2 of the AsylbLG.
The applicant requests that
to order the respondent, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, in accordance with the legal opinion of the court, until a final and binding decision is reached on the applicant's objection of April 28, 2020, against the de facto provision of benefits by the respondent (file no.: 4.1.6-KB-I-12/314-159746).
The respondent requests that
to reject the application.
He believes that the assumption that single adult benefit recipients in communal accommodations could benefit from cost savings is realistic. An economic advantage already arises from the infrastructure provided in the communal accommodation. In any case, it is not the responsibility of the respondent, as part of the executive branch, to question the constitutionality of laws. The reduction of benefits due to a lack of cooperation in obtaining a replacement passport is lawful. This reduction was also not carried out without a formal decision.
For further details of the facts and the legal arguments, reference is made to the administrative file of the respondent and to the court file, which were the subject of the decision-making process.
II.
The application is admissible and well-founded.
The applicant seeks, by way of preliminary legal protection, to be granted provisional benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) by analogy with the German Social Code, Book XII (SGB XII), based on standard benefit level 1 without any restrictions on her entitlement pursuant to Section 1a AsylbLG. The legal basis for the claim, the allocation to the standard benefit level, and the question of any restrictions on the claim are all disputed.
According to Section 86b Paragraph 3 of the Social Courts Act (SGG), an application for preliminary legal protection can also be filed before the main action is brought.
The application for the month of April 2020 is to be interpreted as a combination of an application under Section 86b Paragraph 1 and Section 86b Paragraph 2 of the Social Court Act (SGG) pursuant to Section 123 SGG and is admissible as such. With regard to the period from May 2020 onwards, it is admissible as an application under Section 86b Paragraph 2 SGG.
Since the applicant's objection of April 28, 2020, against the respondent's implied grant of benefits for April 2020, which established the restriction of her entitlement to benefits pursuant to Section 11 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), does not have suspensive effect, the Chamber would be prevented from issuing a preliminary injunction granting benefits for April 2020 in an amount exceeding the established restriction, unless the objection itself has suspensive effect. Conversely, ordering suspensive effect is insufficient because, in the present situation, there is no benefit grant in the claimed amount that could be reinstated. The applicant's request is open to such an interpretation due to the express reference to the objection filed on April 28, 2020, and the overall justification aimed at preventing the reduction in benefits and enforcing the entitlement to benefits under Section 2 of the Asylum Seekers' Benefits Act (see, in general, Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER –, Juris para. 4 f.).
The applicant essentially seeks a benefit exceeding that currently granted, thus creating a "situation of obligation" in which a combined action for annulment and performance would be required in the main proceedings. Therefore, an application for a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG) is the appropriate form of legal protection. Specifically, this concerns a provisional expansion of the applicant's legal position through an obligation to provide higher benefits, and thus a regulation of a provisional state of affairs with regard to a disputed legal relationship (regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 SGG).
The application is justified with regard to the order for suspensive effect (I.) as well as with regard to the interim order (II.).
I. The suspensive effect of the applicant's objection of 28 April 2020 was to be ordered because the respondent's implicitly issued administrative act is manifestly unlawful.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Act (SGG), the court may, upon application, order the suspension of enforcement in whole or in part in cases where – as here due to Section 11 Paragraph 4 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) – an objection or appeal does not have suspensive effect. The balancing of interests required when deciding on the order of suspensive effect under Section 86b Paragraph 1 SGG must encompass all public and private interests that are relevant in the individual case. In the summary review generally required in preliminary legal protection proceedings, the legislative decision to waive suspensive effect must, in principle, be considered, thus initially giving priority to the public interest in immediate enforcement. A deviation from this is only warranted if an overriding interest of the person burdened by the administrative act can be established. The order of suspensive effect must therefore remain an exception that requires compelling arguments. The court's review is not based on a rigid examination scheme. The greater the prospects of success, the lower the requirements for the interest in a stay of execution. If the administrative act is manifestly unlawful and the affected party's subjective rights are violated by it, the proceedings will be stayed because there is then no public interest or interest of a third party in its enforcement (see Keller in: Meyer-Ladewig et al., SGG, 13th ed. 2020, § 86b para. 12c et seq.; Hess. LSG, decision of 26.02.2020 – L 4 AY 14/19 B ER –, Juris para. 8).
Taking these criteria into account, the suspensive effect of the applicant's objection must be ordered in the present case. The existence of the prerequisites of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) and the question of its applicability (cf. Hessian State Social Court, decision of March 31, 2020 – L 4 AY 4/20 B ER –, Juris Rn. 33 ff.) can remain undecided here, because the respondent's implicitly issued administrative act is already manifestly unlawful due to the lack of a time limit pursuant to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
If an authority resorts to the measure of restricting benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), Section 14 Paragraph 1 of the AsylbLG expressly stipulates the obligation to limit the duration of the restriction. This requirement for a time limit necessarily implies that the specific date of commencement and, above all, the end of the restriction must be explicitly determined. An administrative act that includes a restriction of entitlement pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), without setting a time limit for this restriction pursuant to Section 14 Paragraph 1 of the AsylbLG, is unlawful (see Bavarian State Social Court, decision of March 19, 2018 – L 18 AY 7/18 B ER –, Juris para. 24; Mecklenburg-Western Pomerania State Social Court, decision of June 21, 2018 – L 9 AY 1/18 B ER –, Juris para. 47; Baden-Württemberg State Social Court, decision of June 18, 2018 – L 7 AY 1511/18 ER-B –, Juris para. 10; Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, Section 14 AsylbLG para. 18).
In the present case, the applicant is granted the reduced benefits by the respondent's implied approval. Since no time limit was agreed upon, the benefit reduction is unlawful.
The applicant was last granted reduced monthly benefits for February 2019 by written decision on February 19, 2019, in accordance with Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). The reduction was limited to six months and therefore could not have extended beyond July 2019. Since then, i.e., for the past 13 months, the benefit reduction has been implicitly implemented through the continued granting of the reduced benefits. At least for the benefit period in dispute here, there is no written administrative act from the respondent concerning the requirements of Section 1a Paragraph 3 of the AsylbLG.
The respondent's decision of January 6, 2020, and the hearing notice of March 18, 2020, do not address whether the requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) are met and do not alter this finding. By decision of January 6, 2020, following a prior hearing notice dated December 20, 2019, the respondent provided the applicant with accommodation in the communal accommodation "xxx" for foreign refugees in xxx. The decision expressly refers to the benefit reductions previously imposed by decisions of July 26, 2018, and February 19, 2019, and presupposes these reductions. The decision does not, however, contain any independent provision regarding a reduction in benefits. The hearing notice dated March 18, 2020 serves solely to prepare an administrative decision, which is beyond doubt evident from the wording ("Therefore, it is planned to […]") to the satisfaction of the Chamber, and does not contain any independent regulation.
II. The prerequisites for issuing a preliminary injunction pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) are met.
Pursuant to Section 86b Paragraph 2 Sentences 1 and 2 of the Social Court Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant. 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 2 Sentence 4 of the Social Court Act (SGG) in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for the injunction and the grounds for the injunction must be substantiated.
There is a reciprocal relationship between the grounds for an injunction and the claim for an injunction. The requirements for establishing grounds for an injunction are less stringent if, upon examination of the facts and the law, success in the main proceedings is probable. Conversely, if a claim brought in the main proceedings is or would be manifestly inadmissible or unfounded, the issuance of a preliminary injunction must be denied due to the lack of a claim for an injunction. If the prospects of success in the main proceedings are uncertain, the grounds for an injunction become decisive. Insofar as subsistence-level benefits are at stake, the requirements for grounds for an injunction and the claim for an injunction are less stringent. In this case, a balancing of interests, taking into account the applicants' fundamental rights, may also be necessary (see Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05 –, Juris para. 26). The issuance of a preliminary injunction must be necessary to avert substantial disadvantages; that is, there must be an urgent emergency requiring an immediate decision (established case law of the Hessian State Social Court, cf. decision of January 29, 2008 – L 9 AS 421/07 ER –, Juris para. 29 with further references). Such an emergency exists when there is a threat to one's livelihood or significant economic disadvantages (cf. Keller in: Meyer-Ladewig et al., SGG, 13th ed. 2020, § 86b para. 29a).
1. Measured against these prerequisites, a claim for an order to grant benefits pursuant to Section 2 Paragraph 1 Sentence 1 AsylbLG in analogous application of the SGB XII (a) on the basis of the standard benefit level 1 (b) without restriction of entitlement pursuant to Section 1a AsylbLG (c) has been credibly demonstrated in the present case.
a) The outcome of the main proceedings regarding the question of whether the respondent is obligated to grant benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) by analogy with Book XII of the German Social Code (SGB XII) is uncertain, as a complete clarification of the facts and the law is not possible in preliminary injunction proceedings. It is undisputed that the applicant belongs to the group of persons entitled to benefits under Section 1 Paragraph 1 of the AsylbLG and fulfills the waiting period requirement under Section 2 Paragraph 1 Sentence 1 of the AsylbLG. Furthermore, there is no evidence of a significant interruption of her stay in Germany. However, based on the summary review required in preliminary injunction proceedings, the court could not conclusively determine whether the applicant had abused her rights by influencing the duration of her stay. The court is convinced that there are substantial indications that argue against subjective culpability. The subsequent balancing of interests favors the applicant.
In contrast to the benefits currently granted to the applicant under Section 3 Paragraph 3 in conjunction with Section 3a Paragraph 1 No. 2b, 2nd alternative, of the Asylum Seekers' Benefits Act (AsylbLG), the granting of so-called analogous benefits under the German Social Code, Book XII (SGB XII), pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), requires that the duration of the stay was not influenced by the applicant through abuse of rights.
The concept of abuse of rights is not defined anywhere in the Asylum Seekers' Benefits Act (AsylbLG). It is rooted in the principle of good faith, which also applies in public law. It requires reprehensible misconduct consisting of an objective and a subjective component – the element of abuse and culpability. The underlying principle is that no one may invoke a legal position that they themselves have brought about in bad faith. Likewise, it is not sufficient that the duration of the stay is based on reasons that lie within the sphere of responsibility of the person seeking assistance. In particular, the state cannot invoke abuse of rights if it itself acts unlawfully or abusively (Federal Social Court, Judgment of June 17, 2008 – B 8/9b AY 1/07 R –, Juris para. 32/34).
In the present case, the fulfillment of the objective elements of abuse can remain undecided, as the court has significant doubts regarding the subjective culpability of the misconduct, which preclude a conclusive examination of the legality of withholding benefits in expedited proceedings. The respondent's implicit approval practice and the lengthy duration of the appeal proceedings further complicate the final clarification.
Given the punitive nature of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), not just any conduct that might be considered objectionable is sufficient. The nature, extent, and consequences of the breach of duty must be so serious for the benefit recipient that the breach itself, i.e., the subjective culpability, must also be given considerable weight within the framework of the principle of proportionality. Intentional conduct is required. The conduct must be dishonest and disapproved of by the legal system. Therefore, only conduct that is inexcusable, i.e., socially unacceptable, considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG), leads to the exclusion of analogous benefits under Section 2 Paragraph 1 of the AsylbLG (see Federal Social Court (BSG), judgment of June 17, 2008 – B 8/9b AY 1/07 R –, Juris para. 33; judgment of February 2, 2010 – B 8 AY 1/08 R –, Juris para. 12; Hessian State Social Court (Hess. LSG), decision of June 2, 2020 – L 4 AY 7/20 B ER –, Juris para. 21; decision of February 26, 2020 – L 4 AY 14/19 B ER –, Juris para. 17). Any remaining doubts regarding the determination of subjective culpability are to the detriment of the authority (Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 2 AsylbLG Rn. 140 ff.; cf. also Hess. LSG, decision of 04.06.2020 – L 4 AY 5/20 B ER –, Juris Rn. 37).
According to the administrative file, the applicant suffered and continues to suffer from a serious physical and psychological impairment. In February 2018, the applicant was diagnosed with post-traumatic stress disorder, which may have been caused by the death of nine of her twelve siblings and the worry about the whereabouts of the remaining siblings. This impairment is directly linked to the applicant's separation from her husband and her two children, now four and nine years old, as a result of domestic violence. In the court's view, it is plausible that this complex situation presented and continues to present a significant potential for overwhelming the applicant. The extent to which these circumstances influenced the applicant's decision to initially refrain from the required cooperation in April 2018, and whether this omission is subjectively reprehensible, i.e., socially unacceptable, within this overall context, cannot be conclusively determined in these expedited proceedings.
In this context, it was also important to consider that the final clarification in the present expedited proceedings is complicated by the respondent's implicit approval practice and the lengthy duration of the objection proceedings. The applicant was last granted monthly benefits for the month of February 2019 by written notification on February 19, 2019. Since then, i.e., for a period of 18 months, the withholding of benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) has been implicit. At least for the benefit period in dispute here, there is no written administrative act from the respondent concerning the requirements of Section 2 Paragraph 1 Sentence 1 of the AsylbLG. The applicant's objection of September 18, 2018, against the initial withholding of benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), issued by written decision of July 26, 2018, has not been decided upon to this day, exceeding the deadline stipulated in Section 88 Paragraph 2 of the Social Courts Act (SGG) and without any apparent reason. Likewise, the applicant's objection of March 13, 2019, against the withholding of benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), issued by written decision of February 19, 2019, has not been decided upon to this day, exceeding the deadline stipulated in Section 88 Paragraph 2 of the Social Courts Act (SGG) and without any apparent reason.
In principle, authorities have complete discretion in how they regulate their administrative procedures, in particular by means of a written administrative act or by implied approval through cash payment, and also over what period of time (see Section 33 Paragraph 2 Sentence 1 of the German Social Code, Book X). The authorities must make this clear. In cases of doubt, the decisions are to be interpreted from the perspective of an objective, reasonable recipient (Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020, Section 2 Asylum Seekers' Benefits Act, marginal note 266; see also Federal Social Court, judgment of June 17, 2008 – B 8/9b AY 1/07 R –, Juris marginal note 11).
The Asylum Seekers' Benefits Act (AsylbLG) also does not contain any legal provision that stipulates a written form requirement for the withholding of benefits under Section 2 AsylbLG.
In areas sensitive to fundamental rights, the administration's implied granting practices are subject to particularly strict judicial review, especially when these practices are applied over a long period. The court already has considerable doubts as to whether Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) even provides a basis for the permanent exclusion of analogous benefits (see also Social Court Landshut, decision of May 6, 2019 – S 11 AY 38/19 ER –, Juris para. 36). In any case, the granting practice chosen by the respondent in the present case, namely to completely forgo written notification of the withholding of benefits for a very long period, carries the risk of the withholding of benefits becoming permanent, while simultaneously diminishing the legal protection afforded to benefit recipients. The intensity of the withholding of benefits under Section 2 para. 1 sentence 1 AsylbLG, by analogy with the German Social Code, Book XII (SGB XII), is considerable. The court's doubts about the subjective culpability of the applicant's misconduct are reinforced by the outlined approval practice and the long duration of the objection proceedings, leading to the assumption of an open outcome in the main proceedings.
In expedited proceedings, a comprehensive balancing of interests must be undertaken when the outcome of the main proceedings is uncertain, taking into account the likelihood of success in the main proceedings. The consequences that would arise if the court did not issue the preliminary injunction but the claim were subsequently found to be valid must be weighed against those that would arise if the court issued the preliminary injunction but the claim were subsequently found to be invalid (see Keller in: Meyer-Ladewig et al., SGG, 13th ed. 2020, § 86b para. 29a). In particular, the applicant's fundamental rights must be fully considered in this balancing of interests. According to the jurisprudence of the Federal Constitutional Court, the courts must protect and promote the fundamental rights of the individual (cf. Hess. LSG, decision of 30.01.2006 – L 7 AS 1/06 ER –, Juris Rn. 30).
In the present case, the disadvantages to the applicant if the preliminary injunction is denied, despite the subsequent finding of abuse of process, significantly outweigh the advantages, as she has had to live with considerably reduced benefits for many months without the respondent having provided a legally binding clarification of this reduction. Due to the lengthy duration of the objection proceedings, the applicant has thus far been prevented, through no fault of her own, from seeking judicial protection in a main proceeding. The withholding of benefits to secure her socio-cultural subsistence minimum could constitute an unreasonable hardship for the applicant in the long term. Compared to this hardship, the respondent's financial interests—in only having to provide lower benefits if the withholding is confirmed as lawful—and the risk of non-repayment must take a back seat. While the applicant's contributory negligence for the resulting adverse situation must also be considered in the balancing of interests, the court has already stated that there are considerable doubts as to the applicant's subjective culpability for the misconduct.
b) The claim for an order regarding the assignment to standard benefit level 1 has been substantiated, as the outcome of the main proceedings is also uncertain. The required balancing of interests weighs in favor of the applicant.
Section 2, paragraph 1, sentence 4, number 1 of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that Section 28 of the German Social Code, Book XII (SGB XII) applies accordingly, with the proviso that, in the case of accommodation in communal accommodation as defined in Section 53, paragraph 1 of the Asylum Act, a standard allowance in the amount of standard allowance level 2 is granted for each adult. Comparable provisions can be found in Section 3a, paragraph 1, number 2b and paragraph 2, number 2b of the AsylbLG.
The court, however, assumes that the application of standard benefit level 2 requires actual joint financial management by the persons housed with the applicant. No evidence of such joint financial management is apparent in the present case.
The court is convinced that there is no plausible evidence to support the assumption that persons living in communal accommodations generally manage their finances jointly like partners in a household receiving social assistance. In this respect, the chamber concurs with the prevailing opinion on this issue in social court jurisprudence, as far as can be ascertained. A constitutionally compliant interpretation of the provision requires that, as an unwritten element of the offense, the actual and demonstrable communal household management of the benefit recipient with other persons housed in the collective accommodation is presupposed, for which the objective burden of proof and, in expedited proceedings, the burden of presentation lies with the benefit provider (see LSG Meckl.-Vorp., decision of 10 June 2020 – L 9 AY 22/19 B ER –, Juris para. 17 et seq.; Sächs. LSG, decision of 23 March 2020 – L 8 AY 4/20 B ER –, Juris para. 38; SG Landshut, decision of 28 January 2020 – S 11 AY 3/20 ER –, Juris para. 59 et seq.; decision of 23 January 2020 – S 11 AY 79/19 ER –). Juris para. 38 et seq.; Decision of 24 October 2019 – S 11 AY 64/19 ER –, Juris para. 53 et seq.; Social Court Frankfurt, Decision of 14 January 2020 – S 30 AY 26/19 ER –, Juris para. 12 et seq.; Social Court Bremen, Decision of 3 July 2020 – S 39 AY 55/20 ER –, Juris para. 20 et seq.; Social Court Munich, Decision of 10 February 2020 – S 42 AY 82/19 ER –, Juris para. 57; Social Court Freiburg (Breisgau), Decision of 20 January 2020 – S 7 AY 5235/19 ER –, Juris para. 33 et seq.; Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 2 AsylbLG Rn. 170; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG Rn. 41 ff.).
The Chamber is also convinced that, due to the societal and partly state-imposed, and undoubtedly sensible, contact restrictions, the outlined savings effect is even less likely to actually occur during the Corona pandemic (cf. SG Berlin, decision of 19.05.2020 – S 90 AY 57/20 ER –, Juris Rn. 36 ff.).
In the context of the necessary balancing of interests, the applicant's interests in securing her minimum subsistence level, respecting the principle of human dignity, were to be given greater weight than the respondent's fiscal interests in avoiding potentially unjustified benefit payments.
c) With regard to the exclusion of claims under Section 1a AsylbLG, no balancing of interests is required to establish a claim for an injunction, since the applicant's success in the main proceedings – as already explained under I. – is likely due to the obvious illegality of the respondent's administrative decision.
2. The applicant has also credibly demonstrated grounds for an injunction. The regulatory order is necessary to avert significant disadvantages for the applicant, as the benefit restrictions would exclude her from the level of benefits that, in the legislator's assessment, is necessary to cover the socio-cultural minimum subsistence level to be guaranteed under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law after a stay lasting longer than 18 months.
The obligation was to be issued no later than March 2, 2021, as the length of the appeal proceedings precluded the respondent from obtaining a legally binding decision for the current benefit period significantly earlier. Due to the paramount importance of the fundamental rights to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG, as well as the rights to life and physical integrity under Article 2 Paragraph 2 Sentence 1 GG, and the applicant's situation as outlined in the balancing of interests, benefits must be granted provisionally for this period. The application was therefore to be granted in full.
The decision on costs follows from the applicable Section 193 of the Social Court Act (SGG) and corresponds to the outcome of the proceedings.
The following is information on legal remedies.
