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Administrative appeal and complaint procedures

If the service provider rejects an application for the assumption of costs for an assistive product or a technical work aid, an administrative appeal can be filed in justified cases. In the further course, an action against decisions is also possible.

In many cases, insured persons are successful. However, they must observe certain requirements and be prepared for the fact that court proceedings can take a long time. In most cases in social law, an objection procedure must first be carried out before court proceedings.

As a matter of principle, benefit providers must notify their rejection in writing, as otherwise no legal action is possible. The notice of rejection must contain instructions on how to appeal, indicating that the administrative appeal must be lodged within one month (§ 36 SGB X). Notices of appeal may be invalid if they do not contain a reference to the possibility of sending the appeal by De-Mail (see judgement).

Within the applicable time limits, insured persons must lodge the administrative appeal in writing with the relevant benefit provider or orally for the record at an office of the benefit provider.

  • Deadlineone month: the time limit for lodging an appeal is one month if the notice of appeal is included in the notice of rejection.
  • Time limit of oneyear: The time limit is extended if the information on legal remedies is missing in the notice of rejection.
  • Time limit: The time limitbegins when the notice of rejection is received by the insured person.
  • Time limit for stating the grounds of appeal: You can state the grounds for the administrative appeal immediately or submit them later with a note - for example, with the wording "The grounds for this administrative appeal will be submitted separately." There is no fixed deadline for stating the grounds for the administrative appeal. However, in one's own interest, this should be done as soon as possible.

Insured persons can formulate a letter of objection freely or have it drawn up by a legal adviser. If the administrative appeal 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 administrative appeal and to support it with evidence.

As soon as the rejection notice from the benefit provider is received, insured persons should check with expert help, usually together with the medical and, if necessary, legal experts, whether the medical and legal assessment of the social benefit provider is correct and whether important points have been forgotten. A medical statement can be helpful as evidence. Although the benefit provider may decide on the basis of the file, it must take into account all significant circumstances for the individual case and explain the reasons for the decision.

If the service provider bases its rejection on an expert opinion, for example from the Medical Service (MD) or an external expert opinion, insured persons should request this and, if necessary, carefully check it with the specialist treating them. In case of errors or insufficient consideration of the circumstances of life, insured persons should correct the facts. If the medical report was only drawn up on the basis of the files, insured persons should request a personal assessment. Insured persons have a right to inspect files according to § 25 SGB X.

Insured persons do not have to respond to telephone or written enquiries from the service providers as to whether they maintain their administrative appeal after the statement of reasons has been given! By filing an administrative appeal, they have already made it clear that they do not agree with the decision.

If the service provider does not decide on the administrative appeal within three months, insured persons can file an action for failure to act (§ 88 SGG) before the social court without legal assistance. Insured persons must send the notice of rejection and the administrative appeal to the Social Court with the action. Since actions for failure to act are successful in many cases, the service providers also reimburse the lawyer's fees.

With the introduction of the BTHG (1.1.2018), insured persons can procure a benefit themselves in accordance with § 18 SGB IX if no written justified notification is received from the benefit provider after two months. The benefit is then deemed to be approved. However, this regulation does not apply to the providers of integration assistance, public youth welfare, war victims' welfare and integration offices.

If the service provider rejects the administrative appeal again, insured persons can take legal action before the Social Court. In the case of actions against decisions of the Integration Office/Inclusion Office, the Administrative Court is responsible.

The legal remedy instruction in the rejection letter must indicate that the action can be brought within one month and must name the competent social court. If this information on legal remedies is missing in the notice of appeal, the time limit for bringing an action is extended to one year.

The period begins when the notice of objection is received by the insured person.

Insured persons may file a complaint in writing with the competent social court or submit the complaint orally for the record. The clerks of the office at the respective social court are responsible for this and will also help with the wording.

There are no court fees for legal proceedings before the social court. The state treasury also pays for any expert opinion requested by the court. If this is unfavourable to the insured, they can call in another expert of their own at their own expense.

Plaintiffs can inspect the files at court and represent themselves in court without legal counsel. However, due to the financial risks and complex legal matter, legal advice and legal counsel in court is recommended.

If insured persons do not meet the administrative appeal or claim deadline, they can reapply for the benefit. However, this causes further delays at the expense of the insured person.

In urgent or emergency cases, the insured person can accelerate the proceedings by means of interim legal protection. This interim order can be applied for at the Social Court (§ 86b SGG). Insured persons do not need the help of a lawyer for this, but it is advisable. The normal administrative appeal or lawsuit proceedings will continue until they have become legally binding.

For this provisional urgent decision, the social court must

  1. a claim for an order and
  2. a reason for the order.

With the interim order, the benefit provider can be obliged to provisionally provide the insured person with the requested benefit in order to avert unreasonable disadvantages.

The social court can revoke the order if the contested claim for benefits is rejected as unjustified in the main proceedings.

It remains to be seen whether the application and approval procedure will accelerate anyway with the new regulations through the BTHG (§ 18 SGB IX, in strength since 1.1.2018).

Legal expenses insurance can reduce the cost risk, but in social law it usually only pays from the time of a lawsuit. However, legal expenses insurance has the great advantage for the insured person that it also covers the costs for a further expert opinion (here costs of at least EUR 1,000 are to be expected), for example if the expert opinion obtained by the social court is unfavourable for the insured person.

In addition, low-income people who cannot afford the necessary funds for legal assistance and litigation for personal or economic reasons (e.g. ALG II, BAföG recipients) can receive social benefits.

Advisory assistance covers advice and legal representation by a lawyer vis-à-vis third parties outside of court proceedings and is only possible from the administrative appeal onwards. Consequently, only the out-of-court costs are covered and not the lawyer's or court fees for legal proceedings. Legal aid may be available for this purpose. The legal counsel may still charge EUR 15.00 for representation, but this is often waived altogether.

An application for legal aid can be made at the local district court. The people making the application must provide proof of income and expenses as well as underlays of the specific legal dispute. In most cases, the notice of refusal from the benefit provider is sufficient for this purpose. The local court issues a so-called Beratungshilfeschein, which can be used to obtain advice from an established legal adviser. Counseling assistance can also be applied for directly through a mandated legal counsel upon submission of proof of income and expenses, who will submit the application for counseling assistance to the local court.
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 Lawyers' Association.

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

However, it is only granted

  • if the insured person is not economically able to pay for legal counsel.
  • the action or application for an interim injunction has a prospect of success.
  • the lawsuit does not appear to be wanton, and
  • the court costs are not covered by legal expenses insurance or another body.

Depending on the financial circumstances of the insured people, a distinction is made between legal aid without and with payment in instalments.

The application for legal aid must be made to the trial court where the action is filed (§ 73a SGG, § 117 ZPO). In the application, the plaintiffs must present the dispute with the evidence and prove their personal and economic circumstances with appropriate proof. In most cases, the application is filed directly with the complaint via the mandated legal counsel.

Legal advice is available, for example, from lawyers specialising in social law and from associations or self-help organisations. Some self-help organisations also offer a legal supplementary contract for objection procedures with membership.

Some legal advice centres can be found here:

  • Sozialverband VdK Deutschland e. V.
  • Sozialverband Deutschland e. V. (SoVD)
  • Rbm - "Rechte behinderter Menschen" of the DBSV (Deutscher Blinden- und Sehbehindertenverband e. V.) and the DVBS (Deutscher Verein der Blinden und Sehbehinderten in Studium und Beruf e. V.)
  • Federal Association of Self-Help for the Physically Handicapped e. V. (BSK)
  • German Diabetic Federation e. V.
  • Medical Law Advisory Network of Medical Lawyers e. V.

Complaints offices to which you can turn in case of problems. However, these institutions do not replace the appeal procedure:

  • Federal Insurance Office (BVA) as supervisory authority for legal and procedural violations.
  • Federal Government Commissioner for Patients' Concerns

This article was written in cooperation with lawyer Sabine Westermann.