DECISION
S 58 AS 4177/20 ER
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Jobcenter Northeim,
represented by the management,
Scharnhorstplatz 14, 37154 Northeim
– Respondent –
The 58th Chamber of the Hildesheim Social Court decided on December 2, 2020, through Judge xxx of the Social Court:
- The suspensive effect of the applicant's objection of October 29, 2020 against the respondent's decision of October 22, 2020 is ordered.
- The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The parties are arguing, within the framework of an application for preliminary legal protection, about the legality of a withdrawal of unemployment benefit II due to a failure to report in the context of benefits to secure subsistence under the Second Book of the Social Code (SGB II).
The applicant is currently receiving benefits under the German Social Code, Book II (SGB II). Most recently, the respondent granted him benefits totaling €805.45 per month (€432.00 standard benefit and €373.45 costs for accommodation and heating) for the period from February 1, 2020 to January 31, 2021, by decision dated January 14, 2020.
By letter dated July 16, 2020, the respondent invited the applicant by regular mail to an appointment at the Northeim Job Center on Friday, July 24, 2020, at 8:15 a.m. The invitation 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). According to the invitation, the appointment was to discuss the applicant's current employment situation. The invitation contained the following information under the heading "Legal Consequences, Legal Remedies, and Other Information":
“[…] Legal consequences notice:
- A violation of the reporting obligation pursuant to Section 59 SGB II in conjunction with Section 309 SGB III exists if you fail to comply with the request of your responsible job center to report in person or to appear for a medical or psychological examination.
- In case of a breach of the reporting obligation, unemployment benefit II or social assistance will be reduced by 10 percent of the standard allowance applicable to you to secure your livelihood according to § 20 SGB II.
- The reduction or cessation of benefits generally lasts three months and begins in the calendar month following the delivery of the corresponding notice of sanctions (§ 31b SGB II). During this period, there is no entitlement to supplementary assistance under the Twelfth Book of the Social Code (social assistance).
- Violations of the aforementioned obligations may result in overlapping sanction periods (example: 10 percent reduction due to a first violation of the reporting obligation from May 1st to July 31st and a 10 percent reduction due to a further violation of the reporting obligation from June 1st to August 31st –> overlap from June 1st to July 31st with a total reduction of 20 percent). Even in cases of multiple violations of the reporting obligation, the monthly reduction amount may not exceed 30 percent of the relevant standard benefit rate.
- Reductions due to violations of reporting obligations may be added to reductions under Section 31 of the German Social Code, Book II (SGB II).
However, the monthly reduction amount may not exceed 30 percent of the applicable standard benefit rate. Reductions should not be imposed if they would result in exceptional hardship. Declarations to subsequently comply with the cooperation obligations or to cooperate properly in the future may, taking into account the individual case, limit the period of the reduction. - According to Section 32 Paragraph 2 Sentence 2 in conjunction with Section 31b Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), the sanction period can be reduced to six weeks in individual cases for employable benefit recipients under 25 years of age.
[…]“
Since the applicant failed to attend the appointment, the respondent notified the applicant on August 19, 2020, of a potential sanction of 10% of the standard benefit rate applicable to him due to his unexcused absence from the aforementioned appointment. By decision dated September 21, 2020, the respondent reduced the applicant's benefits by 10% for the period from October 2020 to December 2020, stating that the applicant had failed to appear at the aforementioned appointment without excuse. This resulted in a reduction of unemployment benefit II by €43.20 per month. The objection filed against this decision by letter dated October 19, 2020, has not yet been decided, as far as can be ascertained.
By further letter dated August 20, 2020 (which is not in the applicant's electronic file), served on the applicant on August 22, 2020, the respondent again summoned the applicant to an appointment at the Northeim Job Center on August 31, 2020, via registered mail with return receipt requested. Since the applicant also failed to attend this appointment, the respondent notified the applicant on September 4, 2020, of a sanction of 10%, amounting to €43.20 per month, of the standard benefit rate applicable to him, due to his unexcused absence from the aforementioned appointment. By decision dated October 15, 2020, the respondent reduced the applicant's benefits by 10% for the period from November 2020 to January 2021, stating that the applicant had failed to appear at the aforementioned appointment without excuse. This results in a reduction of unemployment benefit II by €43.20 per month. The notification also contained the following passage: “Please note that during the period from November 1, 2020 to December 31, 2020, the reductions from several concurrent sanctions overlap. Your benefits have already been reduced due to a failure to report (see notification dated September 21, 2020). The objection filed against this by letter dated October 27, 2020 has not yet been decided.”.
In a further letter dated September 4, 2020 (served on the applicant on September 9, 2020), the respondent invited the applicant for the third time to an appointment at the Northeim Job Center on October 9, 2020, at 9:00 a.m. Should the applicant fail to appear at the aforementioned appointment, benefits would be completely suspended until the applicant cooperated. The relevant legal provisions are attached as an appendix (which were not included in the respondent's electronic file).
The plaintiff again failed to attend the hearing. The respondent again notified the plaintiff of the potential withdrawal of benefits due to the plaintiff's unexcused absence from the aforementioned hearing. This hearing notice is not in the respondent's file and was not promptly provided even after a court request.
By further decision dated October 22, 2020, the respondent revoked the applicant's rights entirely, effective November 1, 2020. He justified this by stating that the applicant had failed to appear without excuse at the aforementioned hearing on October 9, 2020.
The applicant, represented by his legal counsel, filed an objection to this decision by letter dated October 29, 2020. In support of his objection, the applicant argued that the benefit decision for the period from February 1, 2020, to January 31, 2021, had already been issued by decision dated January 14, 2020. Therefore, Section 61 of the German Social Code, Book I (SGB I), was not applicable. It was unclear why the applicant should be summoned. Nor was it clear what further decision was required, given that the benefit period had already been approved until January 31, 2021.
By letter dated October 30, 2020, the applicant, represented by his legal counsel, filed an application for preliminary legal protection with the Hildesheim Social Court. He argued that he had a right to an injunction because the decision would prove unlawful in the main proceedings. The respondent could not rely on Section 61 of the German Social Code, Book I (SGB I) regarding the denial of benefits, as the benefit decision had already been issued for the period from February 1, 2020, to January 31, 2021. It was unclear why the applicant was to be summoned, nor what the decision was to be made on. Since the applicant's constitutionally guaranteed minimum subsistence level was currently no longer secure, grounds for an injunction also existed. The respondent's pleadings and summonses did not indicate that the respondent fundamentally doubted the applicant's entitlement to benefits. The respondent could have dispelled the alleged doubts about the applicant's continued eligibility for benefits, for example, by requesting proof of registration regarding the applicant's continued residence within the respondent's jurisdiction, by requesting bank statements, or by conducting a social data comparison himself to verify the applicant's failure to take up employment. The applicant continues to live in the apartment known to the respondent and has no income whatsoever. He did not attend his appointments with the respondent due to concerns about the Covid-19 pandemic. The respondent is aware that the applicant suffers from obesity. According to the Robert Koch Institute, people with obesity belong to a risk group.
The applicant submitted sworn affidavits dated November 25, 2020, and November 30, 2020, to the court file, in which he affirmed his existing obesity with a BMI of 38 and that he was neither absent from his place of residence nor employed in 2020. Furthermore, the applicant submitted bank statements to the file (see pages 117 to 136 of the court file).
In letters dated November 3, 2020, and November 16, 2020, the applicant personally informed the respondent, among other things, that he was not attending and would not attend any appointments with the respondent due to the COVID-19 pandemic. He stated that he belonged to a high-risk group due to his obesity, blood type A, gender, and receipt of benefits under Book II of the German Social Code (SGB II). Furthermore, he had only received the summons for his appointment on July 24, 2020, after the appointment had already taken place, around 3:00 p.m. He also stated that he was at risk of homelessness due to the suspension of his benefits and/or the termination of his electricity and gas supply.
The applicant requests in writing
that the suspensive effect of the applicant's objection of October 29, 2020 against the respondent's decision of October 22, 2020 be ordered.
The respondent requests in writing that
the application be rejected.
The respondent stated as grounds for the decision that the last contact with the applicant had occurred in February 2020. Since May 2020, all attempts to contact the applicant had failed. The applicant had also failed to comply with simple requests to report to the authorities. Given that the applicant had "disappeared," the respondent had reason to suspect that the applicant was prevented from responding to the respondent's attempts to contact him, for example, due to employment or a prolonged absence from the area. Accordingly, the applicant's entitlement to benefits had to be reviewed. With the request for cooperation dated September 4, 2020, the applicant was obligated to appear in person pursuant to Section 61 of the German Social Code, Book I (SGB I). He failed to comply with this obligation to cooperate. No notification was received. To this day, it remains unclear to the respondent whether the applicant is still within the respondent's jurisdiction. Instead of complying with the required cooperation after the termination of benefits on November 1, 2020, the applicant's sole response was to file an objection. No explanation was provided as to why the applicant was unable to comply. Therefore, there is no legal basis for an injunction. Furthermore, the respondent disputes the applicant's legitimate interest in legal protection. Regarding the applicant's claim that he received the initial invitation, sent by regular mail, only after the scheduled appointment, the respondent considers this a pretext. The applicant's legal representative, in his statement of October 30, 2020, denied both the sending and receipt of this invitation. The applicant cannot identify any particular risk group. In particular, the references to "receipt of benefits under Book II of the German Social Code," "blood type A," and "male" are absurd. The fatal outcome is primarily observed in older individuals.
Upon request by the court, the respondent submitted the postal delivery certificates dated August 22, 2020 and September 9, 2020.
The respondent was ordered by court order of November 30, 2020, to submit as soon as possible the missing invitation of August 20, 2020, the "corresponding legal provisions" to the invitation of September 4, 2020 (which should have been attached as an exhibit), and the hearing regarding the decision of October 22, 2020. No response was received prior to the decision.
For further details of the facts and the legal arguments, reference is made to the court file and the (electronic) administrative file of the respondent, which were submitted to the court and formed the basis of the decision.
II.
The objection must be granted suspensive effect because there are significant doubts about the legality of the withdrawal decision. This means that the originally granted benefits, reduced by the previous sanction deductions, must be paid out.
An application for an order suspending the enforcement of the administrative act pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Courts Act (SGG) is admissible because the withdrawal is immediately enforceable under Section 39 Number 1 of the German Social Code, Book II (SGB II). The decision is at the court's discretion and is based on a balancing of interests. The applicant's private interest in being spared the enforcement of the administrative act until the proceedings are concluded with final legal effect must be weighed against the public interest in enforcing the administrative decision. The prospects of success of the legal remedy in the main proceedings are of significant importance in this balancing. Furthermore, it is relevant whether there is urgency for the matter raised in the preliminary injunction proceedings (Bavarian State Social Court, Decision of February 13, 2015, L 7 AS 23/15 B ER; Bavarian State Social Court, Decision of January 7, 2015, L 16 AS 734/14 B ER).
In this context, the assessment under Section 39 of the German Social Code, Book II (SGB II) must be taken into account, according to which the legislator, based on a standardized balancing of individual and public interests, generally gives priority to the public interest in immediate enforcement over conflicting private interests. A deviation from this rule-exception relationship is only conceivable if there are serious doubts about the legality of the contested decisions or if, in exceptional cases, particular private interests prevail (Meyer-Ladewig, SGG, 12th edition 2017, Section 86b, marginal note 12c; Bavarian State Social Court, judgment of February 13, 2015, L 7 AS 23/15 B ER).
There are significant doubts about the legality of the withdrawal notice, because the failure to appear at three scheduled appointments alone does not mean that the eligibility requirements for benefits are no longer met within the meaning of Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I). Therefore, a prerequisite for the withdrawal is lacking.
Contrary to the prevailing opinion (cf. Eicher, SGB II, 4th edition 2017, § 32 para. 6 with further references), the reporting sanction under § 32 SGB II does not supersede the cooperation regulations under §§ 60 ff SGB I. The obligation to appear in person under § 61 SGB I can also be enforced under SGB II and, if the conditions of § 66 SGB I are met, may lead to a refusal or withdrawal of benefits.
The sanction rules under Sections 31 et seq. of the German Social Code, Book II (SGB II) do not supersede the regulations under Sections 60 et seq. of the German Social Code, Book I (SGB I) as special provisions within the meaning of Section 37 SGB I. The general cooperation provisions are applicable alongside the sanction provisions. These are two legal institutions with different prerequisites, legal character, and consequences (Federal Social Court [BSG], Judgment of May 14, 2014, B 11 AL 8/13 R, para. 28; Bavarian State Social Court [BayLSG], Decision of August 31, 2012, L 7 AS 601/12 B ER, para. 40).
This also applies to the summons to appear in person pursuant to Section 61 of the German Social Code, Book I (SGB I). The Federal Social Court (BSG) has ruled that three unexcused absences from a scheduled appointment do not automatically constitute grounds for a loss of availability for work under Section 138 Paragraph 5 of the German Social Code, Book III (SGB III), and thus do not automatically lead to the revocation of unemployment benefits under SGB III. However, the authority may alternatively proceed under Sections 61 and 60 of SGB I, because the regulations concerning the reporting obligation under Section 309 of SGB III do not preclude this (BSG, ibid., para. 28). Given that a failure to report under the German Social Code, Book III (SGB III) can be sanctioned with a one-week suspension of benefits (§ 159 para. 1 sentence 2 no. 6, para. 6 SGB III), this case law can be applied to the German Social Code, Book II (SGB II): A sanction of 10% of the standard benefit for three months according to § 32 SGB II does not fundamentally preclude the application of §§ 61, 66 SGB I.
However, one prerequisite for the withdrawal of benefits is lacking. According to Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), the withdrawal of benefits requires, among other things, that due to a lack of cooperation, "the prerequisites for the benefit have not been proven." According to the respondent, this here refers to the need for assistance as defined in Section 9 of the German Social Code, Book II (SGB II), or to an absence from the applicant's place of residence or a change in the area of responsibility.
Three missed appointments do not automatically constitute grounds for questioning eligibility for benefits. No such close connection between this behavior and the basic requirement for subsistence benefits under Book II of the German Social Code (SGB II) is apparent. The Federal Social Court (BSG) has already determined that no such connection exists with availability as defined in Section 138 Paragraph 5 of Book III of the German Social Code (SGB III). This requirement for unemployment benefits under SGB III, which is closely linked to failing to appear at appointments, does not exist in SGB II. The requirement of need for assistance under Section 9 of SGB II has less to do with appointments than availability. The conclusion that three missed appointments fail to demonstrate eligibility for benefits is therefore untenable. In that case, the prerequisite for benefit withdrawal—namely, that due to a lack of cooperation, "the requirements for benefits are not proven"—is lacking. Therefore, the suspensive effect of the objection must be ordered in this case.
Furthermore, the invitation dated September 4, 2020, did not state the reason for the appointment. The initial invitation, dated July 16, 2020, stated that the applicant's current professional situation was to be discussed and that his new caseworker wished to introduce herself to him personally. The respondent's administrative file contains no indication that there were any doubts regarding the applicant's eligibility for benefits, and this was only revealed during the court proceedings.
Furthermore, the applicant informed the respondent, albeit only during the court proceedings, that he did not wish to attend any appointments with the respondent at this time due to the COVID-19 pandemic. It is irrelevant in this case whether gender, blood type, or receipt of benefits under the German Social Code, Book II (SGB II), constitutes belonging to a risk group, since, at least according to the Robert Koch Institute, there is an increased risk associated with the undisputed presence of obesity. Therefore, this can even be considered a valid reason for his absence.
The respondent is not helpless in the face of the applicant's persistent non-appearance. Given the applicant's assertion that he is not employed, the respondent can conduct a social data comparison and, for example, arrange home visits to determine whether the applicant is absent from his place of residence without authorization, pursuant to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II). If further indications of a lack of need for assistance emerge, a withdrawal of benefits pursuant to Section 66 of the German Social Code, Book I (SGB I) would also be considered.
It should be added that the court must also assume that a hearing regarding the withdrawal of benefits did not take place, as this hearing is not in the respondent's files and was not subsequently submitted by the respondent upon request. For this reason as well, the withdrawal of benefits from November 2020 onwards is also unlawful.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and follows the outcome of the proceedings.
The following is the information on legal remedies!
