DECISION
In the legal dispute
1. xxx,
Applicant,
2. xxx,
Applicant,
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen,
against
Fulda District,
represented by the District Committee,
5300 Central Departmental Service,
Robert-Kircher-Straße 24, 36037 Fulda,
Respondent,
The 7th Chamber of the Fulda Social Court decided on November 28, 2024, through Judge xxx of the Social Court:
- The suspensive effect of the objection lodged on 20 October 2024 against the decision of 10 October 2024 is ordered.
- The respondent must reimburse the applicants for the necessary extrajudicial costs of the legal proceedings.
- The applicants are granted legal aid without installment payments for the first instance proceedings, effective November 12, 2024, with the appointment of attorney Adam in Göttingen. The appointment is subject to the same conditions as for an attorney established within the district of the court hearing the case.
REASONS
With the present application for preliminary legal protection, the applicants seek an order suspending the effect of their objection, filed on October 20, 2024, against the decision of October 10, 2024. This application is admissible pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG) and is also admissible in all other respects. The respondent's decision of October 10, 2024, by which the initial decision of August 27, 2024, was revoked with regard to the benefit amount as of October 31, 2024, and the monthly benefits were recalculated as of November 1, 2024, pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), constitutes an administrative act by which a benefit under the AsylbLG was partially withdrawn and against which objection and appeal pursuant to Section 11 Paragraph 4 No. 1 of the AsylbLG do not have suspensive effect.
The application is also well-founded.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Procedure Act (SGG), the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. The decisive factor in determining whether an application under Section 86b Paragraph 1 Sentence 1 Number 2 SGG is successful is whether, within the framework of an open balancing of interests, a public interest in the immediate enforceability of the administrative act takes precedence over the legitimate interests of the addressee. If the objection or appeal in the main proceedings is manifestly inadmissible or unfounded, the application for an order of suspensive effect must generally be rejected without further balancing of interests in the cases specified in Section 86a Paragraph 2 Numbers 2–4 SGG, because no legitimate interest of the addressee of the decision can oppose the legally mandated immediate enforceability of the administrative act. If, on the other hand, the objection and the main action are clearly admissible and well-founded, the application must be granted because there is then no public interest in immediate enforceability. If the prospects of success cannot be assessed, a general balancing of interests remains, taking into account the degree of likelihood of success in the main proceedings. The principle applies: the greater the prospects of success, the lower the requirements for the applicant's interest in a stay of execution. Conversely, the requirements for the prospects of success are lower the more severe the effect of the administrative measure. The consequences that would ensue if the preliminary injunction were not issued, but the action were later successful, must be weighed against the disadvantages that would arise if the requested preliminary injunction were issued, but the action were ultimately unsuccessful. In this assessment, it may be taken into account that the legislator has provided for immediate enforcement as a general rule, as long as the applicant's interest in legal protection is respected in accordance with their rights under Article 19 Paragraph 4 Sentence 1 of the Basic Law, and in particular, as long as immediate enforcement does not entail severe, unreasonable hardship for them. (Keller in: Meyer-Ladewig/Keller/Schmidt, Social Courts Act, 14th edition 2023, § 86b, marginal notes 12 f, 12c, 2a).
Measured against this standard, the application for an order suspending the effect of the objection against the decision of 10 October 2024 was to be granted, because it proves to be manifestly unlawful.
With the contested decision of October 10, 2024, the respondent revoked the initial decision of August 27, 2024, regarding the amount of benefits as of October 31, 2024, and recalculated the benefits granted to the applicants as of November 1, 2024. While the respondent does not specify the legal basis for its decision in the contested decision, given that the respondent assumes the applicants were only entitled to benefits pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) from the outset, and that the respondent also described its decision of October 10, 2024, as a "revocation," the only possible legal basis is Section 45 of the German Social Code, Book X (SGB X), which is to be applied accordingly pursuant to Section 9 Paragraph 4 Number 1 of the AsylbLG.
Section 45 of the German Social Code, Book X (SGB X) is a discretionary provision. If a social security agency is granted discretion, this does not mean that the decision regarding the legal consequences is entirely at its discretion. Section 39, paragraph 1, sentence 1 of the German Social Code, Book I (SGB I) stipulates that, in cases where social security agencies are authorized to act at their discretion when deciding on social benefits, they must exercise their discretion in accordance with the purpose of the authorization and comply with the legal limits of that discretion. According to Section 39, paragraph 1, sentence 2 of the SGB I, there is a right to the proper exercise of discretion. The respondent's discretionary decision is subject to judicial review only for so-called errors of discretion. In particular, the court may not substitute its own discretion for that of the administrative authority when reviewing the exercise of discretion. When reviewing the actual discretionary decision, only a legal review takes place, not a review of expediency (Keller in: Meyer-Ladewig/Keller/Schmidt, Sozialgerichtsgesetz, 14th edition 2023, § 54, Rn. 28).
Within the context of potential errors of discretion, an abuse of discretion is defined as imposing a legal consequence that is not provided for by law. Failure to exercise discretion or insufficient exercise of discretion occurs when the administration—for whatever reason—fails to consider any discretionary factors at all and acts as if it were required to make a mandatory decision. Insufficient exercise of discretion can also occur when the need for discretionary considerations is recognized and permissible but inadequate considerations are made. Finally, abuse of discretion or misuse of discretion occurs when the administration, contrary to Section 39 Paragraph 1 of the German Social Code, Book I (SGB I), fails to exercise its discretion in accordance with the purpose of the authorization. This is particularly the case if extraneous considerations are taken into account (see, in general: Groth in: Schlegel/Voelzke, jurisPK-SGB I, 4th ed., § 39 SGB I (as of June 15, 2024), para. 35 et seq.). The defendant must state the reasons underlying the discretionary decision in the administrative act. If the exercise of discretion is flawed, the administrative act is therefore unlawful pursuant to § 54 para. 2 sentence 2 of the Social Court Act (SGG).
Measured against this standard, it must be concluded that the decision of October 10, 2024, suffers from a failure to exercise discretion. The court cannot discern that the respondent was even aware, when issuing the decision of October 10, 2024, that the revocation decision was to be based on Section 45 of the German Social Code, Book X (SGB X), and that a discretionary decision was therefore required. The reasoning behind the decision does not cite the legal basis for the decision; instead, it merely presents and examines the factual prerequisites of Section 1a, Paragraph 4, Sentence 2, in conjunction with Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). Since, accordingly, there is no explanation of the prerequisites for the legal basis for the revocation decision in general, and consequently also with regard to the discretionary considerations to be made, the decision is, in light of all this, manifestly flawed due to an error in the exercise of discretion and therefore materially unlawful. The application for interim legal protection was therefore to be granted and the suspensive effect of the objection lodged on 20 October 2024 against the decision of 10 October 2024 was to be ordered.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The applicants were to be granted legal aid, as they are unable to pay the costs of litigation, even in installments, due to their personal and financial circumstances. Furthermore, the application has a reasonable prospect of success and does not appear frivolous (Sections 73a of the Social Courts Act (SGG) and 114 of the Code of Civil Procedure (ZPO)). Legal representation is required (Sections 73a of the Social Courts Act (SGG) and 121 Paragraph 2 of the Code of Civil Procedure (ZPO)).
Section 121, paragraph 3 of the German Code of Civil Procedure (ZPO) stipulates that a lawyer not established within the district of the court hearing the case can generally only be appointed if this does not result in additional costs. Since no special circumstances justifying the appointment of a lawyer from outside the district are apparent, the appointment of the lawyer from outside the district can only be made under the same conditions as for a lawyer established within the court's district (B. Schmidt in: Meyer-Ladewig/Keller/Schmidt, Sozialgerichtsgesetz [Social Courts Act], 14th edition 2023, § 73a, marginal note 9c with further references).
The following is information on legal remedies.
