DECISION
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
State of Hesse, represented by the Regional Council of Gießen,
Landgraf-Philipp-Platz 1-7, 35390 Gießen,
Defendant,
The 12th Chamber of the Social Court of Kassel decided on October 22, 2021, through its presiding judge, Judge xxx of the Social Court:
The defendant must reimburse the plaintiff for the costs of the legal proceedings.
REASONS
I.
The parties are still arguing about the costs of the legal dispute, an action for failure to act brought pursuant to Section 88 of the Social Courts Act (SGG).
By decision dated November 18, 2019, the defendant granted the plaintiff benefits under the Asylum Seekers' Benefits Act (AsylbLG) as benefits in communal accommodation, initially from November 13, 2019, in accordance with Sections 3, 3a Paragraph 1 No. 2 lit. b, Paragraph 2 No. 2 lit. b AsylbLG, at standard benefit level 2. The decision included the following instructions on legal remedies: "An objection may be lodged against this decision within one month of notification. The objection must be submitted in writing or recorded at the Gießen Regional Council, P.O. Box 10 03 54, 35333 Gießen." The sender's address was again listed as the Gießen Regional Council with the aforementioned P.O. Box, but the decision also included a street address, namely Lilienthalstraße 2, 35394 Gießen, the address of the Gießen Arrival Center for asylum seekers.
By a further amendment notice dated December 6, 2019, the aforementioned benefits were adjusted for the period from January 1, 2020, to the standard benefit rates and standard benefit levels applicable from January 1, 2020, in the Asylum Seekers' Benefits Act (AsylbLG). This was again accompanied by the aforementioned information on legal remedies.
The plaintiff, through his legal representative, filed separate objections to both decisions in April and May 2020, respectively, arguing, with detailed legal arguments, that granting benefits solely at standard benefit level 2 was unconstitutional and that benefits should instead be granted at standard benefit level 1. He maintained that the objections were not inadmissible due to being filed too late, as the instructions on legal remedies were incomplete and therefore incorrect, since objections could not be recorded by submitting them to a post office box. Consequently, the time limit for appeals never even began to run in either case. In the alternative, he requested a review pursuant to Section 44 of the German Social Code – Administrative Procedure.
Both objections were subsequently rejected separately as inadmissible due to being filed too late by notices of objection dated July 2, 2020, although the plaintiff had already been assigned to the Schwalm-Eder district with effect from June 2, 2020.
Against the decision of November 18, 2019, as amended by the appeal decision of July 2, 2020, the plaintiff, through his legal representative, filed a lawsuit with the Social Court in Kassel on July 30, 2020, under file number S 12 AY 30/20. He presented a detailed explanation of what he considered to be the applicable factual and legal situation and initially claimed that the benefits granted to him for the period from November 13, 2019, to December 31, 2019, should be granted according to standard benefit level 1 instead of standard benefit level 2. He further explained in detail that the appeal was admissible due to a defective instruction on legal remedies.
Against the decision of December 6, 2019, as amended by the appeal decision of July 2, 2020, the plaintiff, through his legal representative, also filed a lawsuit on July 30, 2020, with the Social Court in Kassel under file number S 12 AY 29/20, and, after a detailed explanation of what he considered to be the applicable factual and legal situation, initially claimed that the benefits granted to him for the period from January 1, 2020, should be based on standard benefit level 1 instead of standard benefit level 2, while maintaining, after a further detailed explanation, that the appeal had been admissible due to a defective instruction on legal remedies.
During the subsequent hearing in both of the aforementioned legal disputes regarding the intended decision by court order, the presiding judge of the chamber issued a further legal clarification, stating that even if the court were to conclude that the defendant had wrongly rejected the objections as inadmissible, a judgment against the defendant as requested would not be possible, despite the chamber's subsequent case law on the standard benefit rate in comparable cases, since a decision on the merits of the objection itself had not yet been rendered. The only possible course of action would be to order the defendant to reconsider the objection, this time also addressing the merits of the case.
Both lawsuits were then definitively dismissed as inadmissible by court order dated May 21, 2021.
Furthermore, the plaintiff had already filed actions for failure to act on October 28, 2020, under file number S 12 AY 75/20, and on November 21, 2021, under file number S 12 AY 78/20, due to the fact that, at least at those times, a decision had not yet been made on his alternative review applications pursuant to Section 44 of the German Social Code, Book X (SGB X). The legal dispute S 12 AY 75/20 concerned the review of the decision of December 6, 2019, and the present case S 12 AY 78/20 concerns the review of the decision of November 18, 2019.
Both review decisions were issued on April 20, 2021.
After both actions for failure to act have been settled, the parties then only dispute the costs of the legal proceedings.
II.
The defendant must reimburse the plaintiff for the costs of the legal proceedings in accordance with § 193 SGG.
Notwithstanding the fact that an objection procedure as a preliminary procedure and a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X) can generally be conducted concurrently, as otherwise the applicable one-year period would expire or be continually extended to the detriment of the benefit recipient, and since the plaintiff had only submitted his review application as a subsidiary claim and the six-month waiting period stipulated in Section 88 Paragraph 1 Sentence 1 of the German Social Courts Act (SGG) had not yet expired at the time the action was filed, meaning the action was initially inadmissible, this was remedied during the course of the legal proceedings because the aforementioned six-month period had begun to run at least upon issuance of the objection decision on July 2, 2020, and more than three months had elapsed by the time the review decision was issued on April 20, 2021.
This is ultimately independent of whether, based on the plaintiff's submissions, a review procedure should even have been initiated ex officio in response to his objection.
No legally sufficient reason is apparent for the failure to issue a decision within the six-month period, which began no later than the issuance of the objection decision on July 2, 2020. The defendant's erroneous application of the law, as argued by the plaintiff and as stated above, does not constitute such a sufficient reason.
The appeal against this decision is excluded, § 172 para. 3 SGG.
