VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen
against
City of Kassel,
represented by the Magistrate,
Legal Department,
Town Hall, 34117 Kassel,
Defendant,
The 12th Chamber of the Social Court of Kassel, in its oral hearing of January 28, 2025, through the presiding judge, Judge xxx, and the lay judges Ms. xxx and Ms. xxx, rendered the following judgment:
The defendant is ordered to decide on the plaintiff's application of 14 December 2022 (file no. 0871/21sva).
The defendant must reimburse the plaintiff for his necessary extrajudicial costs.
FACTS
The plaintiff seeks, by way of an action for failure to act, a decision on an application for the assessment of costs.
The plaintiff, born on [date redacted], lives in a household with his wife and their four children. The plaintiff is currently receiving benefits from the defendant under Book XII of the German Social Code (SGB XII), while his wife and children are currently receiving benefits from the Kassel Job Center under Book II of the German Social Code (SGB II).
Following a move on July 1, 2021, a dispute arose regarding the consideration of the amount of accommodation and heating costs. The Kassel Social Court, by way of a preliminary injunction, ordered the Jobcenter to take into account the actual accommodation and heating costs (5/6) when calculating benefits for the plaintiff's wife and children for the period from October 29, 2021 to April 30, 2022 (Kassel Social Court, decision of December 7, 2021 – S 1 AS 98/21 ER).
The plaintiff then requested, by letters from his legal representative dated November 24, 2021 and January 28, 2022, that the defendant review, pursuant to Section 44 of the Tenth Book of the Social Code (SGB X), the benefits granted by the decision of July 19, 2021, in accordance with Section 35 Paragraph 2 of the Twelfth Book of the Social Code (SGB XII), for the period from July 1, 2021 to March 31, 2022.
In a letter dated March 7, 2022, the defendant informed the plaintiff's legal representative regarding the review application for the decision of July 19, 2021, that the plaintiff's claims had been reviewed as of July 1, 2021. To avoid unnecessary proceedings and costs, the defendant incorporated the decision of the Kassel Social Court of December 7, 2021, into the review. Accordingly, the defendant applied the applicable maximum limit for the period from July 1, 2021, to October 28, 2022, 100% of the accommodation costs in accordance with the Kassel Social Court's ruling from October 29, 2021, to April 30, 2022, and, provisionally, the applicable maximum limits again from May 1, 2022. When determining the maximum limit, the maximum limit for a household of six persons was applied due to the disability of the youngest child. Further details can be found in the attached decision.
By notice dated March 7, 2022, the defendant informed the plaintiff that he would receive basic income support benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), for the period from April 1, 2022, to March 31, 2023. The benefits had been recalculated due to changes in his financial and personal circumstances. According to the recalculation, the plaintiff was entitled to the following total benefits: €66.70 for each month from July 2021 to September 2021, €70.82 for October 2021, €109.09 for each month from November 2021 to December 2021, €112.09 for each month from January 2022 to April 2022, and €70.41 for May 2022. Calculation sheets for the months of July 2021 to May 2022 were enclosed.
By two letters dated March 11, 2022, the plaintiff's legal representative filed an objection against the decision of March 7, 2022: firstly, under file number 0257/22 sva, arguing that the decision was too vague because the header referred to the benefit period from April 1, 2022 to March 31, 2023, but the calculation sheets from July 1, 2021 to May 31, 2022 were attached; and secondly, under file number 0871/21sva, arguing that the defendant had to take into account the actual costs of accommodation, including heating costs, when calculating benefits from July 1, 2021 onwards.
The plaintiff then filed two actions for failure to act, requesting a decision on the two objections dated March 11, 2022 (file numbers S 11 SO 44/22 and S 12 SO 45/22, consolidated under S 11 SO 45/22). The actions for failure to act were indisputably resolved after the issuance of a participation assistance decision on October 9, 2022. By order dated April 1, 2023, the 11th Chamber of the Social Court then ruled that the defendant was only required to bear the plaintiff's necessary extrajudicial costs in proceedings S 11 SO 44/22 and that no costs were to be reimbursed in proceedings S 11 SO 45/22.
In the partial remedy decision dated December 9, 2022, the defendant informed the plaintiff's legal representative that his objections of March 11, 2022, against the decision of March 7, 2022, were partially granted. For the period from July 1, 2021, to October 28, 2021, the defendant took into account the actual amount of accommodation and heating expenses. The plaintiff will receive a back payment of €165.45. The involvement of a lawyer in these proceedings was recognized as necessary, and it was declared that the necessary expenses and fees would be reimbursed, pursuant to Section 63, paragraphs 1 and 2 of the German Social Code, Book X (SGB X).
In two written submissions dated December 14, 2022, the plaintiff's attorney requested the defendant, referring to the "objection of March 11, 2022 – Your reference: 50.1506.4.308401" and referring to the "benefit period July 1, 2021 – March 31, 2022" (letter 1) and the "benefit period April 1, 2022 – March 31, 2022" (letter 2), respectively, "to reimburse the costs incurred by my representation in the objection proceedings based on the cost breakdown shown on the reverse side." The following cost breakdown was attached to each submission:
Initial decision dated: March 7, 2022
Objection dated: March 11, 2022
Remedying decision dated: December 9, 2022
| Business fee pursuant to No. 2302 of the German Lawyers' Fees Act (RVG) | 359.00 euros |
| Flat-rate expenses pursuant to No. 7002 of the German Lawyers' Fees Act (RVG) | 20.00 euros |
| Net amount | 379.00 euros |
| 19% VAT according to No. 7008 VV RVG | 72.01 euros |
| Total amount | 451.01 euros |
In each case, a transfer was requested, specifying the purpose of payment as “Ref.: 0871/21sva – R. No.: 602/22” (letter 1) or “0257//22sva – R.No.: 603/22” (letter 2).
On December 21, 2022, the defendant transferred 451.01 euros to the plaintiff's legal representative, stating the purpose of payment as "objection xxx dated March 11, 2022".
On June 25, 2023, the plaintiff, represented by his legal counsel, filed an action for failure to act with regard to the application for assessment of costs filed under file number 0871/21sva.
In support of his claim, the plaintiff's attorney argues, among other things, that an application for reimbursement of costs was submitted to the defendant on December 14, 2022. The defendant has not yet decided on this application, contrary to the deadline stipulated in Section 88 Paragraph 1 of the Social Court Act (SGG). No sufficient reason for this delay is apparent. A payment of €451.01 was received on December 27, 2022. This payment was made in response to a partial remedy decision dated December 9, 2022. This decision was issued in response to two objections dated March 11, 2022, against a decision dated March 7, 2022, concerning the benefit period from April 1, 2022, to March 31, 2023, and against a decision dated March 7, 2022, concerning the period from July 1, 2021, to October 28, 2021 (or until March 31, 2022). These are therefore two separate issues in dispute and thus separate preliminary proceedings. The aforementioned €451.01 was allocated by him to the proceedings against the decision dated March 7, 2022, concerning the benefit period from April 1, 2022, to March 31, 2023. Regarding the equally successful objection to the decision of March 7, 2022, concerning the benefit period from July 1, 2021, to October 28, 2021 (or until March 31, 2022), no settlement has yet been reached. The defendant cannot dispose of the subject matter of the dispute, particularly not by deciding on two objections in a single decision. While the defendant is entitled to decide on the objections in one decision, two separate preliminary proceedings remain, each with its own cost allocation to be decided. The Kassel Social Court took a different view in the proceedings concerning the actions for failure to act (especially case number S 11 SO 45/22). This view is incorrect and, moreover, has no binding effect on the question of whether the cost decision or assessment must also be made in the second proceeding.
The plaintiff requests that
the defendant be ordered to decide on the plaintiff's application of 14 December 2022 (file no. 0871/21sva).
The defendant requests that
the action be dismissed.
The defendant argues, among other things, that it already paid the plaintiff or his legal representative the reimbursement of costs due to him on December 21, 2022. Furthermore, the 11th Chamber of the court before which the case was heard, as the legal representative must be aware, has irrevocably determined that he did not initiate a second objection procedure within the meaning of Section 63 of the German Social Code, Book X (SGB X), in the same matter. While the legal representative did apply for the determination of costs in two letters on December 14, 2022 (pp. 275-276, 279-280 of the electronic case file), this was consistent with the preceding administrative, objection, and legal proceedings and thus, in substance, only a single application for the determination of costs, namely in relation to the partial remedy decision of December 9, 2022. In this respect, the differing information from the attorney regarding his file number or the periods of performance he identified was irrelevant; what mattered was solely the attorney's correct reference in both letters of December 14, 2022, to one and the same partial remedy. Both letters from the attorney dated December 14, 2022, referred identically to the partial remedy decision of December 9, 2022. Therefore, on December 14, 2022, only a cost assessment application was submitted in relation to the partial remedy decision of December 9, 2022, which the defendant had indisputably already decided upon and paid the attorney the fees due as requested. There was no further (partial) remedy decision that could have served as the basis for a second cost assessment application on December 14, 2022. If the authorized representative had submitted fifty further applications for the determination of costs on December 14, 2022, in connection with the partial remedy decision of December 9, 2022, he would only have successfully pursued one objection procedure within the meaning of Section 63 Paragraph 1 of the German Social Code, Book X (SGB X), and could still only request the determination of necessary costs once pursuant to Section 63 Paragraphs 2 and 3 of the SGB X. The fifty-times repeated interest in costs would also be interpreted as a single request for the determination of costs in connection with the partial remedy decision of December 9, 2022. This is all the more true regardless of the substantive nature of the applications, as the authorized representative had already – and this was irrevocably established by the decision of April 11, 2023 (S 11 SO 45/22) – only filed an objection against an administrative act. A second decision by the defendant will therefore certainly not be issued.
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
The action for failure to act brought by the plaintiff pursuant to Section 88 of the Social Courts Act (SGG) is admissible and well-founded.
The action for failure to act is admissible. In particular, the six-month waiting period stipulated in Section 88 Paragraph 1 of the Social Court Act (SGG) for the decision on the plaintiff's application for the assessment of costs dated December 14, 2022, has expired.
The action for failure to act is also justified. The defendant failed to issue a substantive decision on the plaintiff's application for the assessment of costs, filed under file number 0871/21sva on December 14, 2022, within a reasonable timeframe and without sufficient reason.
The plaintiff's attorney filed two applications for the assessment of costs on December 14, 2022. These applications differ objectively in that they use different file numbers assigned by the attorney and specify different periods of approval. Furthermore, the plaintiff's attorney used different invoice numbers for the cost statements ("Ref.: 0871/21sva – R. No.: 602/22" in letter 1 and "0257//22 sva – R. No.: 603/22" in letter 2). This alone, in the Chamber's opinion, makes it sufficiently clear to an objective recipient that the application for the assessment of costs is for two separate proceedings, and not just for one objection procedure. Moreover, the defendant was likely aware of the parties' differing opinions regarding the number of preliminary proceedings, given the previous actions for failure to act.
The two applications for cost assessment dated December 14, 2022, triggered an obligation on the part of the defendant to issue a decision. The authority that made the cost decision determines the amount of reimbursable expenses upon application, pursuant to Section 63 Paragraph 3 Sentence 1 of the German Social Code, Book X (SGB X). The determination of the amount is an administrative act that can be challenged independently (Schütze/Roos/Blüggel SGB X § 63 Rn. 50 with further references). According to Section 33 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X), an administrative act can be issued in writing, electronically, orally, or in any other manner.
Contrary to the defendant's assertion, the transfer of funds dated December 21, 2022, did not constitute a sufficient decision on the two applications for cost assessment dated December 14, 2022. While an administrative act can indeed be expressed through implied conduct, this always requires that the authority's intent to act be evident, that it has examined the prerequisites for the benefit, and that it has made a decision. In this case, the transfer is not sufficiently specific within the meaning of Section 33 of the German Social Code, Book X (SGB X), as the transferred amount only covers one of the two applications for cost assessment. The court does not consider the information in the payment reference ("objection xxx dated March 7, 2021") sufficient to infer an implied rejection of a cost assessment exceeding the transferred amount, especially since the parties are currently in dispute as to whether one or two objection proceedings were successful.
The action for failure to act is also not lacking in the need for legal protection. It is generally irrelevant whether the plaintiff has a claim on the merits or whether the requested decision has any substantive legal effect on him; even if this is not the case, the plaintiff is generally free to demand a decision. A different rule applies only in cases of abusive legal action, where a substantive legal claim is obviously precluded from every conceivable perspective and the filing of the action for failure to act merely constitutes an exploitation of a formal legal position without any benefit to the plaintiff and to the detriment of the other party (Claus in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 88 SGG (as of June 15, 2022) para. 21 with further references).
However, such a situation does not exist in the plaintiff's case. Since the authority is generally obligated to decide on applications, dismissing an action for failure to act as inadmissible due to a lack of standing should be an absolute exception. A legitimate interest in a decision is supported by the fact that there is a dispute between the parties regarding preliminary issues of the cost assessment decision, specifically whether one or two objection proceedings have been successful. The question of whether the decision of March 7, 2022, addressed multiple issues in dispute, resulting in separate appealability, cannot be definitively resolved within the framework of an action for failure to act. While the view that a second objection to the decision of March 7, 2022, was inadmissible due to the indivisibility of the subject matter is defensible, it is not an abuse of process for the plaintiff's legal representative to hold a different view. The defendant's view that the cost decision made in the partial remedy order of December 9, 2022, relates only to a (successfully conducted) preliminary proceeding also appears tenable. However, it is not an abuse of position to hold a different view. The sole subject of the dispute here is the defendant's obligation to decide on the application for assessment of costs filed on December 14, 2022, under file number 0871/21sva. It is not the court's role to anticipate the defendant's decision on the merits of the application for assessment of costs within the framework of the present action for failure to act.
The interest in a decision is not precluded by the decision of March 11, 2023. The plaintiff's legal representative correctly points out that, in principle, only the operative part of a court decision becomes legally binding.
The decision on costs is based on § 193 SGG.
The appeal required leave to appeal by the Social Court because the value of the subject matter of the appeal did not exceed €750.00 (Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act [SGG]), it was not a reimbursement dispute pursuant to Section 144 Paragraph 1 Sentence 1 No. 2 SGG, and recurring or ongoing benefits for more than one year were not in dispute (Section 144 Paragraph 1 Sentence 2 SGG). However, there were no grounds for granting leave to appeal within the meaning of Section 144 Paragraph 2 SGG.
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