Hessian State Social Court – Decision of 13 May 2024 – Case No.: L 4 AY 1/24 B
DECISION
In the appeal proceedings
1. xxx,
Plaintiff and appellant,
2. xxx,
represented by:
xxx,
Plaintiff and appellant,
3. xxx,
represented by:
xxx,
Plaintiff and appellant,
Legal representative: for 1-3: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
State of Hesse, represented by the Gießen Regional Council
– Initial Reception Center of the State of Hesse –,
Lilienthalstraße 2, 35394 Gießen,
Defendant and respondent,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on May 13, 2024, through Judge Vogl as Chair, Judge xxx and Judge xxx:
Upon the plaintiffs' appeal, the decision of the Gießen Social Court of January 23, 2024 is amended and the plaintiff in case 1) is granted legal aid for the proceedings before the Gießen Social Court, file no. S 18 AY 76/22 B, without installment payments, with the appointment of attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen, under the conditions of an attorney residing in the district of the court.
Furthermore, the complaint is dismissed.
Costs of the appeal proceedings are not to be reimbursed.
REASONS
The plaintiffs filed an appeal with the Social Court on February 17, 2024, with the corresponding request,
to overturn the decision of the Gießen Social Court of January 23, 2024, and to grant the plaintiffs legal aid for the legal proceedings before the Gießen Social Court under file number S 18 AY 76/22, with the appointment of attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
is permissible and justified to the extent indicated in the operative part of the judgment.
The plaintiff in case 1) is entitled to the granting of legal aid for the proceedings at first instance.
According to Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party who, according to his or her personal and economic circumstances, cannot afford the costs of litigation, can only afford them in part or in installments, is entitled to legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear frivolous.
The standard for the required prospects of success must be determined in light of the constitutionally guaranteed equality of access to justice. This follows from the principle of equality enshrined in Article 3 Paragraph 1 of the Basic Law (GG) in conjunction with the rule of law principle enshrined in Article 20 Paragraph 3 GG. Accordingly, the legal remedies available to an indigent person must be aligned with those of a person of means who reasonably weighs their prospects of success, taking into account the risk of costs. A sufficient prospect of success in this sense exists if the court considers the applicant's legal position at least tenable based on the description of the facts and the available documents, and is convinced of the necessity and possibility of proving the case, i.e., if there is a not remote possibility of achieving the legal objective by resorting to judicial review, at least with the aid of all procedural remedies provided for (BVerfGE 81, 347 <357>; established case law, see also: BVerfG, decisions of April 16, 2019, 1 BvR 2111/17; of September 4, 2017, 1 BvR 2443/16 and of February 14, 2017, 1 BvR 2507/16 – juris – regarding questions of taking evidence). If the court deems it necessary to obtain an expert opinion or to gather other evidence ex officio, the prospects of success cannot generally be denied (Schmidt in: Meyer-Ladewig/Keller/Leitherer, SGG, Commentary, 14th edition 2023, § 73a para. 7a). Legal aid may not be denied to an indigent party under constitutional law, particularly if the decision on the merits depends on the answer to a difficult, previously unresolved legal question (Federal Constitutional Court, decision of February 12, 2020, 1 BvR 1246/19).
The subject of the legal proceedings is the decision of March 24, 2022, by which the defendant rejected the plaintiffs' application of February 10, 2022, pursuant to Section 44 of the Tenth Book of the German Social Code (SGB X) – Social Administrative Procedure and Social Data Protection – for full benefits under the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 for plaintiff 1) for the period from January 20, 2021, until her deportation (to Spain on October 11, 2021). By decision on the objection dated July 18, 2022, the Gießen Regional Council overturned the review decision only for the period from January 28, 2021, to October 11, 2021, with regard to plaintiff 1). The Gießen Regional Council, the state of Hesse's initial reception center (EAEH), lacked jurisdiction to decide on benefits for the plaintiff (1) for the period from January 28, 2021, until her deportation. Regarding the period from January 20, 2021, to January 27, 2021, the plaintiff (1) was not entitled to higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Until her transfer to the Gießen district on January 28, 2021, she resided at the EAEH and received benefits at standard benefit level 2b in accordance with Sections 3, 3a Paragraph 1 No. 2 lit. b, and Paragraph 2 No. 2 lit. b of the AsylbLG. These benefits were lawfully reduced from January 15, 2021, pursuant to Section 1a Paragraph 7 of the AsylbLG. The conditions for a reduction in benefits under Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) are met in the case of the first plaintiff. Her asylum application was rejected as inadmissible by the Federal Office for Migration and Refugees in a decision dated October 5, 2020, pursuant to Section 29 Paragraph 1 Number 1 of the Asylum Act (AsylG), and her deportation to the state responsible for her asylum procedure was ordered pursuant to Section 34a Paragraph 1 of the Asylum Act. There are no prohibitions on deportation pursuant to Section 60 Paragraphs 5 and 7 Sentence 1 of the Residence Act (AufenthG), and no court order suspending the deportation order was issued. She was therefore subject to enforceable deportation from January 20, 2021, until her departure on October 11, 2021. The first plaintiff's entitlement to benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) is therefore precluded due to the fulfillment of the conditions of Section 1a Paragraph 7 Sentences 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG). The requirements of Sections 3 Paragraph 1 Sentence 1, 4 Paragraph 1 Sentence 1, and 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. Therefore, there is also no entitlement to the appellant's classification in standard benefit level 1 of Sections 3 and 3a Paragraph 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG).
The timely filed action against this offers sufficient prospects of success with regard to the plaintiff in case 1).
In calculating the benefit reduction pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), the defendant proceeded from a special needs level that was determined with sufficient certainty in an unconstitutional manner.
In its decision of October 19, 2022 (1 BvL 3/21), published on November 23, 2022, the Federal Constitutional Court ruled that the special needs allowance for a single adult housed in communal accommodation, as stipulated in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), is incompatible with the Basic Law (Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG) (fundamental right to a dignified minimum standard of living). The Court found that the legislature's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in the accommodations, and that the resulting savings should be taken into account when calculating the subsistence level (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not constitutionally objectionable under the principle of subsidiarity. This obligation to manage resources collectively is only proportionate in the narrower sense if it is sufficiently ensured that the necessary conditions for this actually exist in the collective accommodations, that these conditions are met, and that corresponding savings can thus be achieved. No evidence of this has emerged in the case of shared accommodation (§ 53 Asylum Act) or reception facilities (§ 44 Asylum Act) (cf. Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 – juris para. 74 et seq.). This decision of the Federal Constitutional Court provides sufficient grounds for the unconstitutionality of the provision relevant for calculating the benefits in dispute, namely Section 3a Paragraph 1 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2 lit. b of the AsylbLG (Senate decision of December 20, 2022 – L 4 AY 28/22 B ER –, juris para. 39; cf. Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 3a AsylbLG [as of May 1, 2024], para. 53: “without doubt”).
The Federal Constitutional Court's restriction of the continued validity order under the application of standard benefit level 1 to decisions that are not yet legally binding (Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 – juris para. 98) does not preclude the prospects of success for an action to amend the decisions pursuant to Section 44 of the German Social Code, Book X (SGB X), because this limitation in the ruling of the Federal Constitutional Court only applies to the parallel provision of Section 2 para. 1 sentence 4 no. 1 of the Asylum Seekers' Benefits Act (AsylbLG). Regardless of this, there are sufficient prospects of success under Section 44 of the German Social Code, Book X (SGB X), because even before the decision of the Federal Constitutional Court, a constitutionally compliant interpretation of Section 3a Paragraph 1 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG) was considered necessary and possible according to widespread opinion (for the state of opinion at that time, see Senate decision of April 13, 2021 – L 4 AY 3/21 B ER –, juris Rn. 51).
Therefore, it is unnecessary to decide whether, even in light of the view partially held in case law that Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) should be reduced teleologically in conformity with the constitution due to its purpose not being geared towards benefit-related needs, such that – as an unwritten element of the offense – the persons entitled to benefits must be accused of conduct contrary to their obligations (cf. Social Court Munich, decision of February 10, 2020 – S 42 AY 82/19 ER –, juris Rn. 36 – 37 with further references; see also Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG [as of May 1, 2024], Rn. 167 with further references), there are sufficient prospects of success for the plaintiff's (1) request for legal protection.
In contrast, the plaintiffs in case 2 and 3 have no reasonable prospect of success, as although they are formally aggrieved by the contested decisions as addressees, they lack standing to sue. According to the case file, neither the plaintiff in case 2 nor the plaintiff in case 3 is affected by a restriction of benefits under Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, it is neither apparent nor has it been asserted that they would be entitled to higher benefits due to the unconstitutionality of Sections 3, 3a Paragraph 1 No. 2 lit. b, Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG): As the child of the first plaintiff, born in 2018, the claim of the second plaintiff is assessed according to Sections 3, 3a Paragraph 1 No. 6 and Paragraph 2 No. 6 of the AsylbLG, while the third plaintiff, who according to the file was born on December 31, 2021, was born only after the end of the period in dispute.
According to the declaration concerning her personal and economic circumstances, plaintiff no. 1 is still unable to bear the costs of the litigation herself.
The decision on costs is based on Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
