COURT ORDER
In the legal dispute
xxx,
Plaintiff,
Legal representative: Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Gießen Regional Council, Initial Reception Center, Department VII,
Lilienthalstraße 2, 35394 Gießen
Defendant,
The 9th Chamber of the Marburg Social Court, without oral proceedings, rendered the following judgment on December 31, 2020, through its presiding judge, Judge xxx:
The defendant's decisions of September 25, 2019, as amended by the appeal decision of December 16, 2019 (File No. VII 72 WB 115/2019 (Diallo)), of September 25, 2019, as amended by the appeal decision of December 18, 2019 (File No. VII 72 WB 123/2019 (Diallo)), of October 17, 2019, as amended by the appeal decision of March 4, 2020 (File No. VII 72 WB 128/2019 (Diallo)), of September 25, 2019, as amended by the appeal decision of December 16, 2019 (File No. VII 72 WB 126/2019 (Diallo)), and of September 25, 2019, as amended by the The decision on the objection dated 18 December 2019 (file no. VII 72 WB 127/2019 (Diallo)) is hereby revoked insofar as it rejected the continuation of benefits.
The defendant's decisions of 27 February 2018, 30 July 2018, 11 December 2018, 26 February 2020, 3 April 2019, 24 April 2019 and 25 September 2019 are amended.
The defendant is ordered to grant the plaintiff benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG), taking into account the standard benefit level 1, for the benefit period from February 27, 2018 to June 6, 2018 and from July 30, 2018 to December 31, 2018, based on a personal monthly need of €365.00 each, and for the period from January 1, 2019 to January 8, 2019 and from April 3, 2019 to September 30, 2019, based on a personal monthly need of €373.00 each.
Furthermore, the lawsuit is dismissed.
The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS
The parties are in dispute over the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from 27 February 2018 to 8 January 2019 and from 3 April 2019 to 30 September 2019.
The plaintiff, born on [date redacted], is single, originates from Guinea, and first entered the Federal Republic of Germany via Spain in December 2017. On February 27, 2018, he was registered at the initial reception center of the state of Hesse. On March 1, 2018, he applied for asylum at the responsible branch office of the Federal Office for Migration and Refugees (BAMF) in Gießen. The plaintiff's temporary residence permit expired on March 27, 2018. On June 6, 2018, he was transferred to Spain. On July 24, 2018, the plaintiff re-entered the Federal Republic of Germany and was admitted to the initial reception center of the state of Hesse on July 30, 2018. On July 30, 2018, he applied to the BAMF for further asylum proceedings. On January 8, 2019, the plaintiff was again transferred to Spain. On April 3, 2019, the plaintiff re-entered the Federal Republic of Germany and submitted an asylum application to the Federal Office for Migration and Refugees (BAMF). On July 26, 2019, the plaintiff submitted another asylum application.
By decision dated February 27, 2018, the defendant granted the plaintiff benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period beginning on February 27, 2018 (pp. 14 et seq. of the administrative file, case no. S 9 AY 4/20). By application for review dated September 10, 2019, the plaintiff's legal representative requested a review of the decision of February 27, 2018, for the period from February 27, 2018, to July 29, 2020 (pp. 92 et seq. of the administrative file, case no. S 9 AY 4/20). The benefits had not been continued. By decision of the defendant dated September 25, 2019, the review application was rejected (pp. 90 et seq. of the administrative file, case no. S 9 AY 4/20). An update could not be carried out because the legislature and the Federal Ministry of Labor and Social Affairs had remained inactive. The plaintiff's legal representative filed an objection to the decision of September 25, 2019, by letter dated September 26, 2019 (pp. 86 et seq. of the administrative file, case no. S 9 AY 4/20). The objection was rejected as unfounded by the defendant's decision on the objection dated December 16, 2019 (case no. VII 72 WB 115/2019 (Diallo)) (pp. 99 et seq. of the administrative file, case no. S 9 AY 4/20).
By decision dated July 30, 2018, the defendant granted the plaintiff benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period beginning July 30, 2018 (pp. 17 et seq. of the administrative file, case no. S 9 AY 2/20). By application for review dated September 10, 2019, the plaintiff's legal representative requested a review of the benefit payment for the period from July 30, 2018, to December 10, 2018 (pp. 30 et seq. of the court file, case no. S 9 AY 3/20). The benefits had not been continued. By decision of the defendant dated September 25, 2019, the application for review was rejected (pp. 28 et seq. of the court file, case no. S 9 AY 3/20). An update could not be carried out because the legislature and the Federal Ministry of Labor and Social Affairs had remained inactive. The plaintiff's legal representative filed an objection to the decision of September 25, 2019, by letter dated September 26, 2019 (pp. 25 et seq. of the court file, case no. S 9 AY 3/20). The objection was rejected as unfounded by the defendant's decision of December 18, 2019 (case no. VII 72 WB 123/2019 (Diallo)) (pp. 16 et seq. of the court file, case no. S 9 AY 3/20).
By decision of the defendant dated December 11, 2018, the plaintiff was granted reduced benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for a period of six months, beginning on December 11, 2018 (pages 14 et seq. of the administrative file, case no. S 9 AY 10/20). By application for review dated September 10, 2019, the plaintiff's legal representative requested a review of the decision of December 11, 2018 (pages 10 et seq. of the administrative file, case no. S 9 AY 10/20). The benefits had not been extended. By decision of the defendant dated October 17, 2019, the application for review was rejected (pages 7 et seq. of the administrative file, case no. S 9 AY 10/20). An extension could not be made because the legislature and the Federal Ministry of Labor and Social Affairs had remained inactive. The plaintiff's legal representative filed an objection to the decision of October 17, 2019, by letter dated October 18, 2019 (pp. 3 et seq. of the administrative file, case no. S 9 AY 10/20). By partial remedy decision of the defendant dated February 26, 2020, the reduction in benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) was lifted, and the plaintiff was granted benefits pursuant to Section 3 of the AsylbLG retroactively for the period from December 11, 2018, to January 8, 2019 (pp. 37 et seq. of the administrative file, case no. S 9 AY 10/20). The objection was otherwise rejected as unfounded by the defendant's decision of March 4, 2020 (file no. VII 72 WB 128/2019 (Diallo)) (pp. 39ff. of the administrative file no. S 9 AY 10/20).
By decision dated April 3, 2019, the defendant granted the plaintiff benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period beginning April 3, 2019 (pp. 24 et seq. of the administrative file, case no. S 9 AY 1/20). By application for review dated September 10, 2019, the plaintiff's legal representative requested a review of the decision of April 3, 2019, for the period from April 3, 2019, to April 23, 2019 (pp. 30 et seq. of the court file, case no. S 9 AY 2/20). The benefits had not been continued. By decision of the defendant dated September 25, 2019, the application for review was rejected (pp. 28 et seq. of the court file, case no. S 9 AY 2/20). An update could not be carried out because the legislature and the Federal Ministry of Labor and Social Affairs had remained inactive. The plaintiff's legal representative filed an objection to the decision of September 25, 2019, by letter dated September 26, 2019 (pp. 25 et seq. of the court file, case no. S 9 AY 2/20). The objection was rejected as unfounded by the defendant's decision of December 16, 2019 (case no. VII 72 WB 126/2019 (Diallo)) (pp. 16 et seq. of the court file, case no. S 9 AY 2/20).
By decision of the defendant dated April 24, 2019, the plaintiff was granted reduced benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for a period of six months, starting on April 24, 2019 (pages 7 et seq. of the administrative file, case no. S 9 AY 1/20). By application for review dated September 10, 2019, the plaintiff's legal representative requested a review of the decision of April 24, 2019, for the period beginning on April 24, 2019 (pages 15/49 et seq. of the administrative file, case no. S 9 AY 1/20). The plaintiff argued that the benefits should be adjusted accordingly. By amended decision of the defendant dated September 25, 2019, the reduction in benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) was lifted, and the plaintiff was retroactively granted benefits pursuant to Section 3 of the AsylbLG for the period from April 24, 2019, to September 30, 2019 (pages 13 et seq. of the administrative file, case number S 9 AY 1/20). For the period from September 1, 2019, to September 30, 2019, the standard benefit level 2b was applied, with reference to Section 3a Paragraph 1 Number 2b of the AsylbLG. The requested adjustment was not made. The plaintiff's legal representative filed an objection to the decision of September 25, 2019, by letter dated September 26, 2019 (pp. 43 et seq. of the administrative file, case no. S 9 AY 1/20). The objection was rejected as unfounded by the defendant's decision on the objection dated December 18, 2019 (case no. VII 72 WB 127/2019 (Diallo)) (pp. 52 et seq. of the administrative file, case no. S 9 AY 1/20).
On January 7, 2020, and March 6, 2020, the plaintiff, through his legal representative, filed lawsuits to pursue his claims from the objection proceedings. Specifically, he challenged the granting of benefits during the following approval periods:
- 27.02.2018 to 29.07.2018 (originally pending under file number S 9 AY 4/20)
- July 30, 2018 to December 10, 2018 (S 9 AY 3/20)
- December 11, 2018 to January 8, 2019 (S 9 AY 10/20)
- April 3, 2019 to April 23, 2019 (S 9 AY 2/20)
- April 24, 2019 to September 30, 2019 (S 9 AY 1/20)
Following a hearing of the parties by court order of 10 December 2020, the court, by consolidation order of 23 December 2020, joined the proceedings under file numbers S 9 AY 1/20, S 9 AY 2/20, S 9 AY 3/20, S 9 AY 4/20 and S 9 AY 10/20 for joint hearing and decision.
The plaintiff, through his legal representative, submitted a statement dated August 18, 2020, regarding his living circumstances and accommodation situation in the communal accommodation in Neustadt, dated December 16, 2020. He stated that he shared a room with five other people. During this time, he suffered greatly from back pain, which is why he remained in his room most of the time and sometimes was even unable to go to meals.
The plaintiff argues that the benefits were granted at too low a rate because no adjustment was made. The defendant was obligated to carry out the adjustment in accordance with Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version. Insofar as only benefits according to standard benefit level 2 were granted, the underlying regulations in Section 3a Paragraph 1 Number 2b of the AsylbLG are unconstitutional. There is no plausible evidence to support the assumption that benefit recipients living in communal accommodations manage their finances jointly like partners in a household.
The plaintiff requests that
the defendant be ordered to amend its decisions of September 25, 2019, as amended by the appeal decision of December 16, 2019 (Case No. VII 72 WB 115/2019 (Diallo)), of September 25, 2019, as amended by the appeal decision of December 18, 2019 (Case No. VII 72 WB 123/2019 (Diallo)), of October 17, 2019, as amended by the appeal decision of March 4, 2020 (Case No. VII 72 WB 128/2019 (Diallo)), of September 25, 2019, as amended by the appeal decision of December 16, 2019 (Case No. VII 72 WB 126/2019 (Diallo)), and of The court, in accordance with the decision on the objection dated 18 December 2019 (file no. VII 72 WB 127/2019 (Diallo)), orders the plaintiff, in accordance with the court's legal opinion, to be granted the requested benefits for the periods from 27 February 2018 to 29 July 2018, from 30 July 2018 to 10 December 2018, from 11 December 2018 to 8 January 2019, from 3 April 2019 to 23 April 2019, and from 24 April 2019 to 30 September 2019.
The defendant requests
that the action be dismissed.
He is of the opinion that without the full implementation of the procedure for adjusting the monetary amounts stipulated in Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version, there is no legally enforceable claim to higher benefits under the AsylbLG. The decision on the constitutionality of the provision in Section 3a Paragraph 1 Number 2b of the AsylbLG rests exclusively with the Federal Constitutional Court.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the defendant's administrative file, which formed the basis of the decision.
REASONS FOR DECISION
Pursuant to Section 105 of the Social Court Act (SGG), the Chamber was able to decide the case by written order without an oral hearing. The matter presents no particular difficulties of a factual or legal nature, and the facts are clear. The consent of the parties is not required by law. The Chamber notified the parties of its decision regarding a ruling by written order on December 10, 2020. The plaintiff's attorney declared his consent to a decision by written order in a letter dated December 15, 2020, and the defendant did the same in a letter dated December 16, 2020.
The lawsuit is admissible, in particular having been filed in due form and time before the competent court, and is largely well-founded.
The subject of the dispute, according to a reasonable assessment of the plaintiff's request, is the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 27, 2018 to January 8, 2019, and from April 3, 2019 to September 30, 2019. The correct type of action here is a combined action for annulment, performance, and enforcement (cf. Federal Social Court, judgment of February 13, 2014 – B 4 AS 22/13 R –, Juris para. 11). The plaintiff, by way of this action for annulment, seeks the annulment of the administrative acts rejecting the review, dated September 25, 2019, as amended by the objection decision of December 16, 2019 (File No. VII 72 WB 115/2019 (Diallo)), September 25, 2019, as amended by the objection decision of December 18, 2019 (File No. VII 72 WB 123/2019 (Diallo)), October 17, 2019, as amended by the objection decision of March 4, 2020 (File No. VII 72 WB 128/2019 (Diallo)), and September 25, 2019, as amended by the objection decision of December 16, 2019 (File No. VII 72 WB 126/2019 (Diallo)). of 25 September 2019, as amended by the decision on the objection of 18 December 2019 (file no. VII 72 WB 127/2019 (Diallo)). The action for performance seeks the issuance of decisions by the defendant that effect the requested amendment of the underlying benefit award notices (dated 27 February 2018, 30 July 2018, 11 December 2018, 26 February 2020, 3 April 2019, 24 April 2019 and 25 September 2019), an update of the benefits pursuant to Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in the version valid during the period in dispute (aF), and the consideration of standard benefit level 1. With his action for performance, he seeks the provision of higher benefits during the disputed period.
The action is largely justified. The defendant's challenged decisions are unlawful insofar as they rejected the continuation of benefits. Taking into account benefits already received, the plaintiff is entitled to continued benefits pursuant to Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version (1.). For the benefit period from February 27, 2018 to June 6, 2018 and from July 30, 2018 to December 31, 2018, a personal monthly allowance of €365.00 must be considered; for the period from January 1, 2019 to January 8, 2019 and from April 3, 2019 to September 30, 2019, an allowance of €373.00 must be considered. Benefits shall also be granted for the period from 01.09.2019 to 30.09.2019 taking into account the standard benefit level 1 (2.).
1. The right to continued benefits arises directly from the law. The defendant should have taken the legally stipulated benefit adjustment pursuant to Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG aF) into account when calculating the benefits.
According to Section 3 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG aF), the amount of money for all necessary personal needs pursuant to Paragraph 1 Sentence 8, as well as the necessary needs pursuant to Paragraph 2 Sentence 2, are adjusted annually on January 1st in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code (SGB XII) in conjunction with the regulation pursuant to Section 40 Sentence 1 Number 1 SGB XII. The resulting amounts are to be rounded down if less than €0.50 and rounded up if €0.50 or more, pursuant to Section 3 Paragraph 4 Sentence 2 of the AsylbLG aF. Pursuant to Section 3 Paragraph 4 Sentence 3 of the AsylbLG aF, the Federal Ministry of Labour and Social Affairs (BMAS) publishes the amount of the needs applicable for the following calendar year in the Federal Law Gazette no later than November 1st of each calendar year.
In the Chamber's view, an increase in benefit entitlement arises directly from the law. This benefit increase is linked to the increase in standard benefit rates under Book XII of the German Social Code (SGB XII). As soon as the change in benefits under SGB XII is established, benefits under the Asylum Seekers' Benefits Act (AsylbLG) must be adjusted accordingly. The benefit recipient therefore has an enforceable right to receive benefits at the adjusted amount. This legally mandated adjustment is not invalidated simply because the Federal Ministry of Labor and Social Affairs (BMAS) failed to publish the information required by sentence 3. The Chamber is not persuaded by the defendant's opposing view (and, for example, by Hohm, ZFSH/SGB 2/2019, pp. 68 ff.), according to which the BMAS's inaction impairs the effectiveness of the adjustment. The publication is not legally binding but serves to ensure the transparency of uniform application of the law. Its purpose is to ensure that all benefit providers are informed of the new amount by the Ministry, so that they do not have to perform the necessary calculations themselves. The main argument in favor of this is that the Federal Ministry of Labor and Social Affairs (BMAS) has no discretion regarding the amount of the benefit adjustment. Furthermore, the regular adjustment is based on constitutional considerations, according to which the fundamental rights review and further development of the benefit amount based on current circumstances to ensure a minimum standard of living is mandatory, even for recipients of benefits under the Asylum Seekers' Benefits Act (AsylbLG). The legislature enacted new legal regulations for the adjustment of benefit levels specifically in light of the courts' criticism of the lack of review of benefit amounts under the AsylbLG. The Chamber is convinced that the adjustment would not be precluded even if the conditions for a recalculation under Section 3 Paragraph 5 of the AsylbLG (old version) were met. If a possible reassessment does not occur, then, with a view to safeguarding the subsistence minimum, at least the benefit rates must be adjusted in accordance with Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version (see, in general, Higher Social Court of Mecklenburg-Western Pomerania, decision of September 26, 2019 – L 9 AY 3/19 B ER –, Juris para. 21 et seq.; Social Court of Stade, judgment of November 13, 2018 – S 19 AY 15/18 –, Juris para. 7; Social Court of Kassel, judgment of September 18, 2019 – S 12 AY 20/19 –; Frerichsin: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020 (as of December 15, 2020), Section 3a AsylbLG para. 95 et seq.).
For the last month in dispute, September 2019, the same result results from an application of Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in the version valid at the time in dispute.
For the benefit period in dispute, from February 27, 2018 to June 6, 2018 and from July 30, 2018 to December 31, 2018, a personal monthly allowance of €365.00 must be taken into account, because the rate of change for the year 2018 according to the 2018 Standard Needs Levels Update Ordinance is 1.63% (see Frerichsin: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020 (as of December 15, 2020), §3a AsylbLG para. 68).
For the benefit period in dispute, from January 1, 2019 to January 8, 2019 and from April 3, 2019 to September 30, 2019, a personal monthly allowance of €373.00 must be taken into account, because the rate of change for 2019 according to the 2019 Standard Needs Levels Update Ordinance is 2.02% (see Frerichsin: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020 (as of December 15, 2020), §3a AsylbLG para. 70)
2. The defendant's application of standard benefit level 2b for the period from September 1, 2019 to September 30, 2019, based on Section 3a Paragraph 1 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG), is also unlawful. The plaintiff is entitled to benefits based on standard benefit level 1.
Section 3a paragraph 1 number 2b of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that, when accommodated in communal accommodation as defined in Section 53 paragraph 1 of the Asylum Act, a necessary personal allowance is recognized for each adult person based on standard benefit level 2. However, the court assumes that the application of standard benefit level 2 requires actual shared financial management among the persons accommodated with the applicant. No evidence of such shared 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 is possible in the present case and requires that, as an unwritten element of the offense, the actual and demonstrable shared household management of the benefit recipient with other persons housed in the communal accommodation be presupposed, for which the objective burden of proof in the main proceedings lies with the benefit provider (see LSG Meckl.-Vorp., decision of 10 June 2020 – L 9 AY22/19 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 Kassel, judgment of 19 November 2020 – S 12 AY 22/20 –; SG Landshut, decision of 28 January 2020 – S 11 AY 3/20 ER –, Juris para. 59). ff.; Decision of 23 January 2020 – S 11 AY 79/19 ER –, Juris para. 38 ff.; Decision of 24 October 2019 – S 11 AY 64/19 ER –, Juris para. 53 ff.; Social Court Frankfurt, Decision of 14 January 2020 – S 30 AY 26/19 ER –, Juris para. 12 ff.; Social Court Bremen, Decision of 3 July 2020 – S 39 AY 55/20 ER –, Juris para. 20 ff.; 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 Rn. 33 ff.; Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 2 AsylbLG Rn. 170; Frerichsin: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG Rn. 41 ff.).
The court is convinced by the plaintiff's submissions, including his personal statement, that there is no legally relevant joint economic activity between the plaintiff and others, and that the corresponding presumption of the legislature is therefore refuted. Merely random actions and occasional shared cooking are insufficient to convince the court. Therefore, it cannot be assumed that the plaintiff is sharing resources and thereby achieving actual cost savings, as is the case in families, cohabiting couples, registered partnerships, benefit units, or similar situations. Furthermore, the defendant has not substantively contradicted the plaintiff's description of the living conditions in the communal accommodation.
The claim was therefore granted to the extent stated in the judgment. It was unsuccessful only with regard to the requested judgment for the period from June 7, 2018 to July 29, 2018, because the plaintiff was no longer entitled to compensation for this period after his transfer to Spain on June 6, 2018.
The decision on costs is based on Section 193 of the Social Court Act (SGG) and reflects the outcome of the proceedings. The dismissal of the claim for the period from June 7, 2018 to July 29, 2018 concerns only a very short period and is therefore not relevant here.
The admissibility of the appeal is based on §§ 143, 144 SGG.
The following is information on legal remedies.
