VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter City of Kassel,
represented by Managing Director Christian Nübling,
Lewinskistraße 4, 34127 Kassel
Defendant,
The 4th Chamber of the Social Court of Kassel, in the oral proceedings of May 12, 2022, with the presiding judge, Judge xxx, as well as the lay judge Ms. xxx and the lay judge Mr. xxx, rendered the following judgment:
The defendant's decision on the objection dated February 5, 2020 is hereby revoked.
The defendant is ordered to reimburse the plaintiff for the expenses necessary for the appropriate pursuit of legal action in the preliminary proceedings against the decision of October 1, 2019, and to declare the involvement of the plaintiff's authorized representative in the preliminary proceedings against the decision of October 1, 2019, to be necessary.
The defendant must reimburse the plaintiff for the necessary extrajudicial costs.
FACTS
The parties are in dispute over the reimbursement of expenses for an objection procedure in which the plaintiff was represented by a lawyer.
The plaintiff was receiving basic income support benefits under the German Social Code, Book Two (SGB II), from the defendant. By decision dated October 1, 2019, the defendant granted him provisional SGB II benefits for the period from October 1, 2019, to March 31, 2020.
The plaintiff, represented by counsel, filed an objection on October 6, 2019, requesting reimbursement of housing costs (KdU) in the amount of the actual costs incurred. On October 10, 2019, the defendant confirmed receipt of the objection. At the same time, the defendant requested that the plaintiff's attorney submit a power of attorney by October 31, 2019, and pointed out that the objection would be rejected as inadmissible if the power of attorney was not submitted by the deadline.
Subsequently, on November 5, 2019, the plaintiff's authorized representative submitted a power of attorney dated August 2, 2019, concerning the objection of October 14, 2019 – relating to a different performance period (period from April 1 to July 31, 2019) – indicating that this should also be submitted to the further preliminary proceedings.
By amended decision dated November 26, 2019, the housing costs were adjusted to the currently applicable limits, and the plaintiff was granted provisionally higher benefits. Instead of €393, a gross monthly amount of €416.50 (excluding utilities) was now taken into account for the entire benefit period.
By decision dated February 5, 2020, the defendant rejected the objection as inadmissible. He stated that the objection had not been validly filed. The power of attorney submitted by the plaintiff's representative had been submitted in connection with an objection proceeding against a preliminary amended decision dated July 25, 2019, for the period from August 1 to September 30, 2019. This power of attorney did not sufficiently demonstrate authorization in the proceedings against the decision of October 1, 2019; rather, it was evident from the wording used that representation was intended only for the specific individual case. Furthermore, the power of attorney was dated prior to the issuance of the contested decision. The defendant also ruled that any necessary expenses incurred in the objection proceedings would not be reimbursed.
On March 3, 2020, the plaintiff filed a lawsuit with the Kassel Social Court against the decision on his objection. He seeks, with the annulment of the cost decision made there, reimbursement of the costs of the preliminary proceedings by the defendant. In support of his claim, he argued that the objection had been successful on its merits, as he had been granted higher housing costs by an amended decision dated November 26, 2020.
During the course of the court proceedings, the defendant issued a final decision on April 14, 2020, for the benefit period from October 1, 2019 to March 31, 2020, whereby the amount of the benefits for housing and utilities remained unchanged.
The plaintiff's representative requests that
the decision on the objection dated February 5, 2020 be overturned and that the defendant be ordered to reimburse the plaintiff for the expenses necessary for the appropriate pursuit of legal action in the preliminary proceedings against the defendant's decision of October 1, 2019, and to declare the involvement of the plaintiff's representative in the preliminary proceedings against the defendant's decision of October 1, 2019, to be necessary.
The defendant requests
that the action be dismissed.
In support of his claim, he refers to the explanations in the contested decision on the objection. He further argues that the power of attorney granted in the legal proceedings is not valid pursuant to Section 73 Paragraph 6 Sentence 4 of the Social Court Act (SGG).
Regarding the further submissions of the parties, reference is made to the contents of the court file and the administrative file of the defendant that was also consulted.
REASONS FOR DECISION
I. The action is admissible pursuant to Section 54 Paragraph 4 of the Social Courts Act (SGG) as a combined action for annulment and performance (Sections 54 Paragraph 1 and 4 SGG). The subject matter is the mere challenge of the objection decision, which—being substantively flawed—failed to consider the amended decision of November 26, 2019, issued prior to the objection decision, which granted the plaintiff's substantive request. In this respect, the isolated challenge of an objection decision is also admissible. By rejecting the objection as inadmissible and disregarding the amended decision, which effectively provided relief, this decision constitutes a "new" grievance. In addition, the decision regarding the reimbursement of necessary expenses for the preliminary proceedings is challenged and was decided by ordering the defendant to bear these costs.
The defendant's objection regarding the lack of authorization for the legal proceedings (§ 73 para. 6 sentence 4 SGG) has become moot, as the plaintiff was personally present at the oral hearing on May 12, 2022, and thus also implicitly approved the previous procedural actions of his legal representative.
II. The claim is also well-founded.
The decision on the objection is unlawful because it rejected the objection as inadmissible (1.). Furthermore, it is also unlawful because the cost decision made therein is flawed and the defendant is obligated to reimburse the costs; the involvement of a legal representative was also necessary (2.).
1. The decision on the objection is unlawful because it rejected the objection as inadmissible.
a) Contrary to the defendant's view, the objection was lodged in a permissible manner. The lodging by the plaintiff's authorized representative was legally valid.
The power of attorney granted by the plaintiff to his authorized representative also applies to the objection proceedings at issue here. Pursuant to Section 13 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X), the power of attorney authorizes all procedural acts relating to the administrative proceedings, unless otherwise specified in its content.
To the extent that the defendant relies on the wording of the power of attorney submitted by the authorized representative on August 2, 2019, and argues that legal representation in the present objection proceedings is not included in the plaintiff's power of attorney, the court does not agree. While the power of attorney does contain the wording that it extends to "representation in administrative proceedings (§ 13 SGB X) also in preliminary and objection proceedings…" and it is certainly plausible to assume that this refers to a specific procedure, this is not the only possible interpretation. The designation "in my social law case…" on the power of attorney also initially suggests a specific procedure. However, the description of the "social law case" as "against the Kassel Job Center regarding benefits under SGB II" can also be understood more broadly. A specific decision or a specific benefit period is not mentioned. It is also not uncommon for a power of attorney to cover multiple administrative proceedings, particularly when several decisions are issued in quick succession, covering different benefit periods but the same legal issue. Therefore, the wording of the power of attorney dated August 2, 2019, does not preclude its extension to the objection proceedings at issue here. Furthermore, the plaintiff's legal representative expressly stated that this power of attorney should also be applied to the other objection proceedings. He thus clearly indicated that this power of attorney should also be used for the present objection proceedings.
The authorized representative also provided written proof of his power of attorney at the defendant's request, in accordance with Section 13 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X). Following the defendant's request to submit the power of attorney by October 31, 2019, the authorized representative complied – albeit belatedly – on November 5, 2019, submitting the power of attorney dated August 2, 2019, with the stipulation that it also be included in the preliminary proceedings. In doing so, the authorized representative essentially complied with the defendant's request.
No further correspondence regarding the power of attorney issue ensued. In particular, the defendant did not inform the plaintiff's attorney that the submitted power of attorney was considered insufficient. Instead, the defendant continued to communicate with the plaintiff's attorney (even without the allegedly missing power of attorney) and also served the attorney with the notice of objection dated February 5, 2020.
Therefore, the chamber assumes that the objection was admissible.
b) The objection was also successful on the merits. With the issuance of the amended decision of November 26, 2019, the plaintiff's request for reimbursement of his actual housing costs was granted, which constitutes a remedy in the objection proceedings. This remedy on the merits is contradicted by the rejection of the objection in the contested objection decision. The rejection was substantively incorrect and must therefore be overturned.
2. The cost decision made in the objection decision is also flawed, and the plaintiff has a claim against the defendant for reimbursement of the necessary expenses for the preliminary proceedings and for a determination that the involvement of a representative was necessary.
In the present case, the court based its decision on the assumption that the cost decision was being challenged separately. Such a separate challenge to the cost decision is generally permissible, as the cost decision is not part of the substantive decision but rather a separate administrative act to be issued separately (see Federal Social Court [BSG], judgment of October 17, 2006 – B 5 RJ 66/04 R – para. 13, juris). If the cost decision is challenged separately as the initial ground of appeal in the objection decision, this leads directly to the admissibility of the action, without the need for separate preliminary proceedings regarding the underlying cost decision (cf. Federal Social Court [BSG], judgment of June 19, 2012 – B 4 AS 142/11 R – para. 10, juris).
The legal basis for the reimbursement of preliminary proceedings costs is Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). According to this provision, the public body whose authority issued the contested administrative act must reimburse the person who filed an objection for the expenses necessary for the appropriate pursuit or defense of their legal rights, "insofar as the objection is successful." As previously explained, this is the case here. With the application of the increased threshold values resulting from the (new) relevant housing cost concept of the City of Kassel, the plaintiff received benefits in the amount of the housing costs he requested and actually paid during the disputed benefit period from October 1, 2019, to March 31, 2020. While the reason for the change favorable to the plaintiff lies in the (higher) threshold values determined by the new housing cost concept, this does not preclude the concept of a "successful" objection. If the legal circumstances change during the objection procedure and this leads to a favorable outcome for the objector, the objection is generally still considered "successful" (Roos/Blüggel in: Schütze, SGB X, 9th ed. 2020, § 13 para. 21)
According to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), a successful objection has the consequence that the defendant must reimburse the plaintiff for the expenses necessary for the appropriate pursuit or defense of their legal rights. The costs of a lawyer in the preliminary proceedings are reimbursable if the involvement of a representative was necessary (Section 63 Paragraph 2 SGB X).
That is the case here. The involvement of a representative was also necessary. There is generally a need to involve a representative because, only in exceptional cases will the citizen be able to adequately protect their rights vis-à-vis the administration (Fichte in: Knickrehm/Kreikebohm/Waltermann, Commentary on Social Law, 7th ed., 2021, § 63 SGB X para. 11 with further references).
If one were to follow the view that the cost decision for the objection proceedings should not have been made via § 63 SGB X, but rather, because the objection decision was also challenged on the merits, in accordance with § 193 SGG, this would ultimately also lead to the defendant being liable for the costs.
The claim was therefore to be granted in full.
III. The decision on costs for the legal proceedings follows from § 193 SGG.
The following is information on legal remedies.
