DECISION
in the legal dispute
xxx,
– Plaintiff –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen
against
Ludwigsburg District,
represented by the Ludwigsburg District Office, Asylum Department,
Hindenburgstr. 40, 71638 Ludwigsburg
– Defendant –
The 16th Chamber of the Social Court of Heilbronn
on September 25, 2023 in Heilbronn
through Judge xxx of the Social Court
without oral proceedings:
The defendant must reimburse the plaintiff's extrajudicial costs.
REASONS
I.
The plaintiff seeks reimbursement from the defendant for his extrajudicial costs incurred in the present proceedings, the action for failure to act filed on August 27, 2023.
On May 10, 2023, the defendant issued a decision withdrawing a decision pursuant to Section 44 of the German Social Code, Book X (SGB X), and granting benefits for April 2023. The plaintiff's authorized representative filed an objection to this decision on May 19, 2023.
On August 27, 2023, the plaintiff's attorney filed an action for failure to act. The defendant issued a decision on the objection on August 28, 2023. At the same time, the defendant stated that there was a sufficient reason for the delayed processing, as the plaintiff was litigating other proceedings before the Social Court. The action, case number S 9 AY 1043/23, against a decision on the objection dated May 17, 2023, has been pending since May 19, 2023. The background to this action is the plaintiff's view that benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are unconstitutional. Since constitutional concerns were also raised in the decision sought here, the defendant initially postponed the decision due to the unconstitutionality of benefits under Section 3 of the AsylbLG.
The plaintiff declared the action for failure to act settled after the decision on the objection was issued.
II.
The defendant shall bear the plaintiff's extrajudicial costs.
Pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG), the court must decide in its judgment whether and to what extent the parties are to reimburse each other's costs; it decides by order upon application if the proceedings – as in this case – have been concluded other than by judgment. The content of this decision is determined at the court's discretion, irrespective of the parties' applications (see Meyer-Ladewig, SGG, 13th ed. 2020, Section 193, marginal notes 13 et seq.). In principle, the court must consider all circumstances of the individual case when exercising its discretion appropriately or equitably.
When an action for failure to act is resolved pursuant to Section 88 of the Social Court Act (SGG), the following applies: If the action was filed before the expiry of the waiting period and the relevant administrative act or the decision on the objection is issued before its expiry, the plaintiff will generally not receive reimbursement of costs. If the action was filed after the expiry of the waiting period, the defendant must generally reimburse the plaintiff's extrajudicial costs because the plaintiff could have expected the decision or the decision on the objection before the expiry of the period. This does not apply if the defendant had a sufficient reason for their inaction and communicated this reason to the plaintiff or was aware of it (Schmidt in Meyer-Ladewig/Keller/Leitherer/Schmidt, Social Court Act § 193 para. 13c).
In cases where there are no special circumstances that would suggest a longer investigation by the authority or any other delay in processing, there is no reason to require the plaintiff, beyond the statutory requirements of Section 88 of the Social Court Act (SGG), to inquire with the authority about the status of the proceedings before filing an action for failure to act (Higher Social Court of Baden-Württemberg, decision of December 14, 2004, L 10 LW 4563/04 AK-B, juris para. 32). However, a different decision must be reached if the plaintiff was already aware at the time of filing the action for failure to act that his claim was unfounded because there was a sufficient reason for the inaction. This can be assumed if the authority has informed the plaintiff of the objective reasons delaying the decision or if the plaintiff was aware of these reasons (see Bavarian State Social Court [Bay. LSG] of June 9, 2009 – L 19 B 125/08 R – and Saxony-Anhalt State Social Court [LSG] of April 4, 2011 – L 8 B 13/07 AY –; Hesse State Social Court [Hss. LSG], ASR 2008, 165 and Baden-Württemberg State Social Court [LSG] of December 14, 2005 – L 10 LW 4563/04 AK-B – with further references – each available on Juris – as well as Rhineland-Palatinate State Social Court [LSG], Breithaupt 1998, 943, 945 with further references).
The reasons given by the defendant for postponing the decision due to the pending nature of court proceedings are not a sufficient reason within the meaning of Section 88 of the Social Court Act (SGG). If the administration were free to postpone decisions on unresolved legal issues, the guarantee of effective legal protection in areas with numerous unresolved legal questions, such as the German Social Code, Book II (SGB II), would be largely rendered meaningless. (cf. Claus in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., Section 88 SGG (as of June 15, 2022), para. 37 with further references)
This decision is final and cannot be appealed pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
