DECISION
L 8 AY 8/24 B
S 5 AY 6/23 ER Social Court Stade
In the appeal proceedings
xxx,
represented by:
xxx,
– Applicant and appellant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Stade District,
represented by the District Administrator,
Am Sande 2, 21682 Stade
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on June 21, 2024 in Celle through Judge xxx and Judges xxx and xxx:
Upon the applicant's appeal, the decision of the Stade Social Court of January 19, 2024, insofar as it rejected the application for legal aid, is overturned.
The plaintiff is granted legal aid for the purposes of the preliminary injunction proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
Costs of the appeal proceedings are not to be reimbursed.
REASONS
The appeal, which was filed in due form and time (§ 173 SGG) and is also admissible in all other respects, in particular permissible (§ 172 para. 3 no. 2 lit. b SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is well-founded. The Social Court (SG) wrongly rejected the application for legal aid (PKH) for the purpose of conducting the expedited proceedings.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous. Sufficient prospects of success exist if the court, based on the description of the facts and the available documents, considers the plaintiff's legal position to be correct or at least tenable and assumes, in factual terms, that the plaintiff has the possibility of presenting evidence (Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, Section 73a marginal note 7a with further references). A certain probability of success is sufficient (Schmidt, ibid., Section 73a marginal note 7).
The urgent application filed on November 21, 2023, by the then six-year-old applicant for provisional treatment of lipodystrophy (Bernardineili Selp syndrome – AGPAT2 mutation), a serious and life-limiting metabolic disorder (see the report from Altona Children's Hospital dated May 5, 2023, and the discharge report from the University Medical Center Hamburg-Eppendorf dated March 27, 2023), seeking provisional treatment with the drug metreleptin, was found to have sufficient prospects of success at first instance. The legal action was also not frivolous. According to the Senate's most recent case law, the principles of Section 6 Paragraph 1 Sentence 1 Alternative 3 of the Asylum Seekers' Benefits Act (AsylbLG), which allows for the granting of other benefits necessary to meet the special needs of children, and Article 3 of the UN Convention on the Rights of the Child, which stipulates that the best interests of the child must be given priority in all legal decisions, require special justification when applying Section 6 Paragraph 1 Sentence 1 Alternative 2 of the AsylbLG if a medically necessary treatment measure for children or minors receiving basic benefits, which is generally required under local living conditions, is rejected as not essential for safeguarding their health (Senate judgment of June 1, 2023 – L 8 AY 19/22 – juris para. 27 and Senate decision of June 20, 2023 – L 8 AY 16/23 B ER – juris para. 20). Based on this case law, there was a high probability that the applicant had a claim for an injunction to obtain medication for her chronic illness pursuant to Section 6 Paragraph 1 Sentence 1 Alternative 2 of the Asylum Seekers' Benefits Act (AsylbLG). Even though the medical documents submitted with the application for preliminary relief do not definitively establish that the requested medication is medically indicated for the applicant's illness, it was not out of the question that such evidence could have been provided in the further proceedings – possibly through judicial and/or administrative investigations of the facts ex officio. Given the applicant's very serious illness, this also applies to demonstrating the urgency of the matter (grounds for the injunction). After all, a corresponding medical indication was confirmed for her sister, who suffers from the same illness, and the applicant is also said to have been treated with the medication before fleeing Colombia (see the report from Altona Children's Hospital dated May 5, 2023). Finally, the subsequent course of the preliminary relief proceedings supports this assumption. The appeal against the decision of the Stade Social Court of 19 January 2024 (S 5 AY 6/23 ER) rejecting the application for interim relief was withdrawn solely on the grounds of the commencement of benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) at the beginning of February 2024 and the associated healthcare provision at the level of statutory health insurance under Section 264 Paragraph 2 of the German Social Code, Book V (SGB V) (so-called quasi-insurance) (see the written submission of the applicant's legal representative of 20 February 2024 in the parallel proceedings B 8 AY 7/24 B ER).
Given her financial circumstances, it is unreasonable to expect the applicant to bear the costs of the litigation from her own resources, even partially or in installments.
The appointment of the lawyer is based on Section 73a SGG in conjunction with Section 121 Paragraph 2 ZPO.
The decision on costs is based on Section 73a 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 by the parties to the proceedings, § 177 SGG.
