Objection and legal actions

If the service providers reject an application for reimbursement of the costs of an assistive device or technical work aid, an objection may be lodged in justified cases. It is also possible to appeal against decisions.

In many cases, policyholders are successful with this. However, they must observe certain requirements and be prepared for the fact that legal proceedings can take a long time. In most cases, social law requires an objection procedure to be carried out before a court case.

In principle, the service providers must notify their refusal in writing, otherwise no legal action can be taken. The notification of rejection must include instructions on how to appeal, which indicates that the objection must be lodged within one month (§ 36 SGB X). Remedial instructions can be ineffective if they do not include a reference to the possibility of transmission by De-Mail (see judgement).

Within the applicable time limits, insured persons must lodge the objection in writing with the relevant service provider or orally for recording in the office of the service provider:

  • Time limit one month: The time limit for lodging an objection is one month if the notice of refusal contains instructions on how to appeal.
  • One year's time limit: The time limit is extended if the information on the right of appeal is missing from the rejection notice.
  • Beginning of the period: The period begins when the insured person receives the notice of rejection.
  • Time limit for filing the grounds of appeal: The grounds of opposition can be submitted immediately or can be followed by a note - for example, with the wording "The grounds of this opposition are submitted separately. There is no fixed time limit for the statement of grounds for the opposition. In its own interest, however, this should be done as quickly as possible.

Insured persons can formulate a letter of opposition freely or have it drafted by a legal advisor. If the objection is successful, the service providers will reimburse the legal fees.

It is important to set out in detail the reason for the requested performance in the opposition and to substantiate it with evidence.

As soon as the rejection notice from the benefit provider is available, insured persons should check with expert help, usually together with medical and possibly 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 files, he must take into account all significant circumstances for the individual case and explain the reasons for the decision.

If the service provider bases its refusal 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 review it with the attending specialist. In the event of errors or inadequate consideration of life circumstances, insured persons should rectify the situation. If the medical report was prepared solely 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 service providers as to whether insured persons maintain their objection after the statement of reasons! By objecting, they have already made it clear that they do not agree with the decision.

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

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

If the service provider rejects the objection again, insured persons can take legal action before the social court. The Administrative Court is responsible for appeals against decisions of the Integration Office/Inclusion Office.

The notice of appeal in the letter of rejection must indicate that the complaint can be filed within one month and must name the competent social court. If this information on the right of appeal is missing in the notice of objection, the period for filing an action is extended to one year.

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

Insured persons may submit the complaint in writing to the competent social court or record the complaint verbally. The registrars of the respective social court's office are responsible for this and will also help with the formulation.

There are no court fees for legal proceedings before the Social Court. Likewise, the state treasury will pay for any expert's report requested by the court. Should this be unfavourable to the insured, they can call in another expert of their own at their own expense.

Plaintiffs may inspect the files at court and represent themselves in court without legal assistance. However, due to the financial risks and complex legal matters, legal advice and legal assistance in court is recommended.

If insured persons do not comply with the deadline for objection or legal action, they can apply for the benefit again. However, this will cause further delays at the expense of the insured person.

In urgent cases of urgency or emergency, the insured person can accelerate the procedure by means of interim legal protection. This interim order can be applied for at the Social Court (§ 86b SGG). Insured persons do not need legal assistance for this, but it is also recommended. The normal objection or complaint procedure continues until it is legally binding.

For this preliminary rush decision, the Social Court must

  1. a claim for an injunction and
  2. grant a reason for an order.

The temporary injunction may oblige the benefit provider to provide the insured person provisionally with the benefit applied for in order to avert unreasonable disadvantages.

The Social Court can revoke the issued authorisation if the contested claim for benefits is rejected as unjustified in the main proceedings.

It remains to be seen whether the application and authorisation procedure will be accelerated anyway with the new provisions of the BTHG (§ 18 SGB IX, in force since 1 January 2018).

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

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

Counselling assistance includes advice and legal representation by a lawyer towards third parties outside of court proceedings and is only possible from the time of the objection. Consequently, only the extrajudicial costs are covered and not the lawyer's or court fees for legal proceedings. Legal aid may be available for this purpose. The legal aid can still charge EUR 15.00 for representation, which is often waived completely.

An application for legal aid can be made to the local district court. The applicant person must provide proof of income and expenditure and documents relating to the specific legal dispute. In most cases, the rejection notice of the service provider is sufficient for this. The local court issues a so-called "Beratungshilfeschein" (counselling assistance certificate), with which the counselling of an established legal adviser can be claimed. The advisory assistance can also be applied for directly through a mandated lawyer after submitting the proof of income and expenditure, who submits the application for advisory assistance to the local court.
In the federal states of Bremen and Hamburg, advisory assistance is exceptionally only granted by public bodies - in Bremen, for example, by the Chamber of Employees and the Bar Association.

Legal aid (Article 114 of the Code of Civil Procedure) covers the costs of legal representation in court or legal costs for legal proceedings.

It is however only granted,

  • if the insured person is economically unable to pay for legal assistance,
  • the action or the application for interim measures has a chance of success,
  • the trial does not appear to be deliberate and
  • the legal costs are not covered by legal expenses insurance or any other body.

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

The application for legal aid must be made to the court before which the action is brought (Paragraph 73a of the SGG and Paragraph 117 of the ZPO). In the application, the plaintiffs must present the dispute with the evidence and provide evidence of their personal and economic circumstances. In most cases, the application is filed directly with the lawsuit through the mandated legal counsel.

Here you will find REHADAT judgements on legal aid.

Legal advice can be obtained, for example, from lawyers specialising in social law and from associations or self-help organisations. Some self-help organisations also offer an additional legal contract for opposition proceedings with their membership.

Some legal advice centres can be found here:

  • Social Association VdK Germany e. V.
  • Social Association Germany e. V. (SoVD)
  • Rbm - "Rights of disabled people" of the DBSV (German Association for the Blind and Visually Impaired e. V.) and the DVBS (German Association of the Blind and Visually Impaired in Study and Work e. V.)
  • Federal Association of Self-Help Physically Handicapped Persons e. V. (BSK)
  • German Diabetic Federation e. V.
  • Medical Law Advisory Network of Medical Lawyers e. V.

Complaint offices, which you can contact if you have any problems. However, these bodies do not replace the appeal procedure:

  • Federal Insurance Office (BVA) as supervisory authority for legal and procedural violations
  • Patient representative of the Federal Government for the interests of patients

This article was written in cooperation with lawyer Sabine Westermann.