COURT ORDER
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter City of Kassel,
represented by the managing director Katja Kairies,
Lewinskistraße 4, 34127 Kassel,
Defendant,
The 10th Chamber of the Social Court of Kassel, without oral proceedings, rendered the following judgment on February 28, 2023, through the presiding judge, Judge xxx:
The defendant is obliged to decide on the plaintiff's objection of 22 December 2020 against the decision of 10 December 2020.
The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS
The parties are disputing, within the framework of an action for failure to act, whether the defendant has been inactive with regard to the plaintiff's letter of December 22, 2020.
The plaintiff, born on xx.xx.2000, is receiving benefits from the defendant under the German Social Code, Book Two (SGB II).
On October 28, 2020, the plaintiff submitted an application for continued benefits. Among other things, she stated that her part-time job at xxx had ended on August 31, 2020. By email dated November 2, 2020, the defendant returned the application for continued benefits to the plaintiff for completion (particularly point 5). By letter dated November 26, 2020, the plaintiff was reminded to complete the application. On December 9, 2020, the plaintiff resubmitted the application for continued benefits. Under point 5, she stated, among other things, that she had started an apprenticeship on October 1, 2020. The apprenticeship contract was available.
By decision dated December 10, 2020, the defendant rejected the application for benefits under the German Social Code, Book II (SGB II). The defendant determined that the plaintiff was not in need of assistance due to the amount of income to be taken into account. The defendant took into account a gross income of €858.00.
In a letter dated December 22, 2020, headed "Request for Review BG No. 43502 0028787," the plaintiff stated that her income had been incorrectly calculated as too high. She asserted that her apprenticeship contract indicated a lower income, which was also evident from the bank statements she had submitted. The plaintiff requested that her matter be reviewed as quickly as possible, as her current financial situation was causing her considerable hardship. The letter is listed in the defendant's administrative file as an "objection/appeal."
In a letter dated January 4, 2021, the defendant requested the plaintiff's cooperation, stating that the plaintiff had filed an objection to the rejection notice of December 10, 2020. The defendant further stated that specific documents were required for the final review.
The plaintiff subsequently submitted several documents, including a confirmation of termination from her former employer.
By letter dated January 26, 2021, the defendant requested the plaintiff's cooperation. In this letter, he informed her that she had submitted a request for review on December 22, 2020. It was necessary to examine whether and to what extent the plaintiff was entitled to benefits, or had been entitled to them, and therefore further documents were required.
By decision dated February 15, 2021, entitled "Application of December 28, 2020, for review of the decision of December 10, 2020, pursuant to Section 44 of Book Ten of the German Social Code (SGB X)," the defendant rejected the application of December 28, 2020, for review of the decision of December 10, 2020, verbatim. The defendant explained that the plaintiff had requested a review of the decision of December 10, 2020, by letter dated December 28, 2020. The review request was to be rejected because the decision of December 10, 2020, was not objectionable. The law had been correctly applied and the facts of the case had been accurate in its issuance. The text of Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), was also cited.
By letter dated June 15, 2021, the plaintiff's legal representative indicated that he was representing the plaintiff's legal interests. He stated that he joined the objection to the decision of December 10, 2020. The plaintiff's letter of December 10, 2020, constituted an objection, as the defendant had correctly determined on January 4, 2021. The employment relationship had ceased to exist in August.
In a letter dated June 25, 2021, headed "Review/Objection Proceedings of Ms. Alisha Bilsing, Your Letter of June 15, 2021," the defendant informed the plaintiff's legal representative that no objection from the plaintiff dated December 10, 2020, had been received. The letter of December 22, 2020, was not considered an objection. The plaintiff had requested a review of the rejection notice in her letter of December 22, 2020. This letter was explicitly headed "Review Request." A review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), is generally possible for any administrative decision, even if an administrative act has not yet become legally binding. Since a review procedure is therefore not generally excluded during the appeal or objection period, the applicant's request must be determined through interpretation. The plaintiff's request for a review of the benefit calculation could have been fully addressed within the framework of a review procedure. It is not apparent why the review request should have been interpreted as an objection. This would not have resulted in any advantage for the plaintiff. No objection was raised against the review decision of February 15, 2021, which itself is subject to appeal. The review procedure is therefore concluded. Since the defendant's letter of June 15, 2021, did not constitute an objection, no objection proceedings are currently pending.
In a letter from her attorney dated June 28, 2021, the plaintiff stated that her letter of December 22, 2020, was the intended subject and should be considered an objection to the decision of December 10, 2020. An objection offers advantages over a review procedure. A decision on the objection is now requested.
On September 24, 2021, the plaintiff, through her legal representative, filed an action for failure to act with the Kassel Social Court, seeking a decision on her objection to the decision of December 10, 2020.
She maintains that her letter of December 22, 2020, constitutes an objection that has not yet been decided. She argues that the deadline stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG) has expired. She asserts that the decision of February 15, 2021, is clearly not a decision on the objection. It contains neither a remedy nor was it issued by the defendant's appeals office.
The plaintiff requests that
the defendant be ordered to decide on the plaintiff's objection of 22 December 2020 against the decision of 10 December 2020.
The defendant requests
that the action be dismissed.
The defendant argues that there has been no inaction. Even if the plaintiff's letter of December 22, 2020, had been interpreted as an objection, the defendant would have already addressed it definitively. The decision of February 15, 2021, should also be interpreted as a decision on the "objection.".
The court notified the parties of its intention to issue a decision by way of a court order by letter dated December 3, 2021. The plaintiff agreed to a decision by way of a court order by letter dated December 9, 2021, and again by letter dated February 1, 2023, following a court clarification on the matter. The defendant also agreed to a decision by way of a court order by letter dated January 23, 2023.
For further details and documents, and for the further submissions of the parties involved, reference is made to the contents of the court file and the administrative file of the defendant, which were the subject of the decision.
REASONS FOR DECISION
Pursuant to Section 105 of the Social Courts Act (SGG), the court was able to decide by written order without an oral hearing, as the facts of the case were clear and presented no particular difficulties of a factual or legal nature. Furthermore, the parties involved were given reasonable notice of the intended decision by written order.
The action for failure to act, pursuant to Section 88 of the Social Court Act (SGG), seeking a decision on the objection of December 22, 2020, is successful. It is admissible and well-founded.
According to Section 88 Paragraph 1 Sentence 1 of the Social Court Act (SGG), an action for failure to act is inadmissible if an application for an administrative act has not been decided on its merits within a reasonable period without sufficient cause, and only after six months have elapsed since the application for the administrative act. Paragraph 2 stipulates the same applies if no decision has been made on an objection, with the proviso that a period of three months is considered reasonable.
The court is convinced that the plaintiff's letter of December 22, 2020, constitutes an objection to the decision of December 10, 2020. The plaintiff did not seek a review of the decision pursuant to Section 44 of the German Social Code, Book X (SGB X). Although her letter was headed "Request for Review," it is clear from the letter that the plaintiff filed an objection to the decision within the one-month objection period, which had not yet expired.
The content of her letter dated December 22, 2020, indicates that she believes her income was incorrectly calculated. She explicitly requested a review of her case. This explains the heading, "Request for Review." As an applicant who was not represented by counsel at the time, she could not have foreseen that this term has legal significance.
It is true that, according to its wording, the scope of application of Section 44 of the German Social Code, Book X (SGB X) is not limited to final administrative acts (see, for example, Federal Social Court (BSG), judgment of October 26, 2017 – B 2 U 6/16 R). However, the procedure under Section 44 SGB X is generally not required if the decision has not yet become final (see Federal Social Court (BSG), judgments of December 16, 2014 – B 9 V 6/13 R and of July 27, 2004 – B 7 AL 76/03 R). This is also the case for the plaintiff. A review procedure was not necessary here. Therefore, her letter was not to be interpreted by the defendants as a request for review. Rather, the defendants themselves initially correctly assumed that the plaintiff had filed an objection. This was also expressly communicated to her by the defendants in a letter dated January 4, 2021. It is unclear why their letter of 22 December 2020 was interpreted differently just a few days later, namely in their letter of 26 January 2021.
The defendant has failed to decide on this objection to date, thus not within the three-month period stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG), and without sufficient reason. Contrary to the defendant's view, his decision of February 15, 2021, cannot be interpreted as a decision on the objection.
The interpretation of an administrative act must be based on its operative provisions and the general legal principle expressly stated in Section 133 of the German Civil Code (BGB), namely that what matters is not the literal wording but the true intent of the authority, insofar as it is tangibly expressed in the decision. To determine this intent, circumstances and aspects that can clarify the content of the decision and that are known to the party concerned must also be considered, provided the administrative act clearly refers to them. The standard for interpretation is that of a reasonable and coherent party (see Federal Social Court, Judgment of June 28, 2018 – B 5 RE 2/17 R).
That the defendant's decision of February 15, 2021, is a review decision is evident from the repeated use of the terms "review of the decision of December 10, 2020." Furthermore, Section 44 of the German Social Code, Book X (SGB X), is mentioned or cited several times. In addition, the defendant expressly stated in a letter dated June 25, 2021, in response to the plaintiff's letter of June 15, 2021, that he assumed the plaintiff's letter of December 22, 2020, did not constitute an objection. If the defendant assumes that no objection exists, he cannot issue a formal decision on the objection. Moreover, in the aforementioned letter, the defendant expressly stated that, in his view, the review proceedings of December 22, 2020, were concluded. No further decisions were made in this matter. The court is convinced that the defendant has neither issued a formal decision on the objection with regard to the plaintiff's letter of December 22, 2020, which is to be interpreted as an objection, nor with regard to the letter from the plaintiff's attorney dated June 15, 2021. The defendant also failed to respond to the express request, made in a letter from the plaintiff's attorney dated June 28, 2021, to issue a decision on the objection.
There is neither apparent nor has the defendant presented a sufficient reason why the objection has not yet been decided.
The decision on costs is based on § 133 SGG.
The following is information on legal remedies.
