Opposition proceedings and legal action in social law

In most cases, benefit providers communicate their decisions (administrative act) in writing. If beneficiaries are only informed of the decision verbally, e.g. by telephone, they have the right to request the decision in writing. The decision must contain information on legal remedies, indicating which deadlines and formalities must be observed for the opposition.

Within the applicable deadlines, those entitled to benefits must submit the opposition in writing to the relevant benefit provider or orally for recording at an office of the benefit provider:

• Deadlineone month: The objection deadline is one month if the rejection notice contains information on legal remedies.
• One-year deadline: The deadline is extended if the information on legal remedies in the rejection notice is missing or incorrect.
• Start of time limit: The time limit begins when the notice of rejection is received by the person entitled to benefits.

Deadline for substantiating the appeal: You can justify the opposition immediately or submit it later with a note - for example, with the wording "The grounds for this opposition will be submitted separately." There is no fixed deadline for stating reasons for the opposition. However, it is in your own interest to do so as quickly as possible.

Note: An opposition can only be submitted electronically with a qualified electronic signature or by De-Mail in accordance with the De-Mail Act. A simple e-mail is not satisfactory!

Beneficiaries can formulate a letter of objection freely or have it drafted by a lawyer. If the opposition is successful, the benefit provider will reimburse the legal fees.

It is important to explain the reason for the requested benefit in detail in the opposition and to provide evidence.

As soon as the service provider's negative decision has been received, those entitled to benefits should, if necessary, seek expert help, usually from lawyers and, in the case of medical issues, also from doctors, to check whether the service provider's legal and, if applicable, medical assessment is correct and whether all important aspects have been taken into account. A doctor's statement can be helpful as evidence if it is a medical matter. Although the benefit provider may decide on the basis of the file, it must take into account all relevant circumstances for the individual case and explain the reasons for the decision.

If the benefit provider bases its refusal on an expert opinion, for example from the Medical Service (MD) or an external assessment, beneficiaries should request this and, if necessary, carefully review it with the specialist treating them. In the event of errors or inadequate consideration of the circumstances, those entitled to benefits should correct the facts. If the medical report was only drawn up on the basis of the files, those entitled to benefits should request a personal assessment. Beneficiaries have a right to inspect files in accordance with § 25 SGB X.

Beneficiaries do not have to respond to telephone or written inquiries from service providers as to whether they maintain their opposition after the reasons have been given! By submitting an opposition, they have already made it clear that they do not agree with the decision.

Note: There are always problems because applications, oppositions or other documents are said not to have been received by benefit providers. Beneficiaries must therefore ensure that they can prove that the service providers have actually received the documents. This is possible by sending them in advance by fax with a transmission report. The opposition can also be submitted directly to the benefit provider and the receipt can be confirmed on a copy of the opposition. In the case of a (registered) letter or posting in the service provider's letterbox, a person is always required who can witness what is contained in the envelope and that it has been sent or handed in.

If the service provider does not make a decision on the opposition within three months, those entitled to benefits can file an action for failure to act (§ 88 SGG) with the social court without legal representation. Beneficiaries must send the rejection notice and the opposition to the social court with the action. As actions for failure to act are successful in many cases, the benefit providers also reimburse the costs of legal representation.

The action for failure to act has no influence on the decision in the case, but only has the effect that the opposition is finally processed.

Pursuant to Section 18 SGB IX, those entitled to benefits can procure a rehabilitation benefit themselves in accordance with Section 18 SGB IX if no written notification stating the reasons is received from the benefit provider within two months. The benefit is then deemed to have been approved. However, this regulation does not apply to the providers of integration assistance, public youth welfare and social compensation benefits.

If the service provider rejects the opposition, those entitled to benefits can take legal action before the social court. The administrative court is responsible for appeals against decisions made by the Integration Office/Inclusion Office.

The information on legal remedies in the notice of objection must indicate that the action can be brought within one month and name the competent social court. If the information on legal remedies is missing or incorrect, the time limit for lodging an appeal is extended to one year.

The period begins when the notice of appeal is received by the person entitled to benefits.

Persons entitled to benefits can submit the complaint in writing to the competent social court or submit the complaint orally for the record. The employees of the Legal Applications Office at the relevant social court are responsible for this and can also help with the wording.

There are no court fees for proceedings before the social court. The state treasury will also pay for an expert opinion possibly commissioned by the court. If this is unfavorable for those entitled to benefits, they can consult another expert of their own at their own expense. If the claim is successful, the benefit provider must reimburse the costs of legal representation.

Beneficiaries can inspect the files in court and represent themselves. However, due to the complexity of the legal matter, legal representation before the social court is recommended.

If those entitled to benefits do not meet the opposition or appeal deadline, they can reapply for the benefit or submit a so-called review application (§ 44 SGB X). However, this causes further delays at the expense of the beneficiaries.

If a benefit is refused, you can obtain it yourself at your own expense and claim the costs incurred in opposition proceedings and legal action.

Anyone who is economically unable to obtain the benefit themselves but urgently needs the benefit and cannot wait for the outcome of the opposition proceedings and legal action, if applicable, can apply to the social court for a temporary injunction. Beneficiaries do not formally need legal representation for this, but this is also recommended here. The normal opposition proceedings and legal action will continue until they have been legally concluded.

In this case, the court roughly examines whether there is a claim (entitlement to an order) to the benefit and whether there is a need for urgency (reason for an order).

With the temporary injunction, the service provider can be obliged to provisionally provide the person entitled to benefits with the requested benefit in order to avert unreasonable disadvantages. Whether there is actually an entitlement to the benefit will be clarified in opposition proceedings and legal action if necessary.

Note: If, for example, it turns out in the legal proceedings that there was no entitlement to the benefit, the benefit provider can reclaim the costs incurred from the person entitled to benefits.

Legal expenses insurance can reduce the cost risk for legal fees, but in social law it often only pays out from the point of legal action. This depends on the respective insurance contract. Legal expenses insurance also has the advantage for those entitled to benefits that it also covers the costs of a further expert opinion (costs of around EUR 2,000 are to be expected here), for example if the expert opinion obtained by the social court is unfavorable for those entitled to benefits.

In addition, people who cannot afford to pay for legal representation for personal or financial reasons (e.g. receipt of citizen's allowance, basic income support under SGB XII or BAföG) can receive financial assistance for legal representation.

Advice assistance includes advice and legal representation by a lawyer vis-à-vis third parties outside of court proceedings and is possible in social law from the point of opposition.

An application for legal aid must be submitted to the local district court. Beneficiaries must submit their proof of income and expenses as well as underlays for the specific legal dispute. In most cases, the rejection notice from the benefit provider is sufficient. The local court will issue a so-called advice assistance certificate, which can be used to obtain advice and, if necessary, legal representation. Counseling assistance can also be applied for directly through legal representation after padding proof of income and assets. Legal representation may charge EUR 15.00. In the federal states of Bremen and Hamburg, legal aid is exceptionally only granted by public bodies - in Bremen, for example, by the Chamber of Employees and the Bar Association.

Legal aid (§ 114 ZPO) covers the costs of legal representation in court or court costs for court proceedings.

However, it is only granted

• if the person entitled to benefits is not financially able to pay for legal representation,
• the lawsuit or application for an interim injunction has a prospect of success,
• the lawsuit does not appear to be frivolous and
• the costs incurred are not covered by legal expenses insurance or another body.

Depending on the financial circumstances of the person entitled to benefits, a distinction is made between legal aid without and with payment in installments.

The application for legal aid must be submitted to the trial court where the lawsuit is filed (§ 73a SGG, § 117 ZPO). In the application, those entitled to benefits must set out the dispute with the evidence and provide evidence of their personal and financial circumstances. The application is often submitted directly with the claim via legal representation.

Note: Anyone applying for legal aid is obliged to notify the court of any changes in their personal and financial circumstances in the four years following the legally binding conclusion of the court proceedings. The court can also check this. If the financial circumstances improve, the costs for the legal dispute (in proceedings before the social courts, only the costs for legal representation are affected) must be repaid to the state treasury.

Legal advice is available, for example, from lawyers specializing in social law and from associations or self-help organizations for members. Some self-help organizations also offer an additional contract for legal representation with membership.

Some legal advice centers can be found here:

• Sozialverband VdK Deutschland e. V.
• Sozialverband Deutschland e. V. (SoVD)
• rbm gGmbH - "Rights of Disabled People" of the DBSV (German Association for the Blind and Visually Impaired)
• Bundesverband Selbsthilfe Körperbehinderter e. V. (BSK)
• German Diabetics Association
• Medical Law Advice Network of Medical Lawyers e. V.

Supplementary independent participation advice (EUTB)

Supplementary independent participation advice (EUTB) has been available since 2018. The EUTB is aimed at people with disabilities and people at risk of disability as well as their relatives. The advice is free of charge. Although the EUTB do not offer legal advice or representation, they can, for example, help with applications or provide an overview of which benefits can be applied for and where.