How soon can I bring an action for failure to act?
This depends on what you are waiting for. If you are waiting for the decision on an application, the legal action is, under § 88 Abs. 1 SGG, “not admissible before the expiry of six months from the application for the administrative act”. If you are waiting for the decision on a Widerspruch, it is three months under subsection 2. In each case, the calculation runs from receipt by the authority, not from the date of your letter – so keep the confirmation of receipt, registered-post receipt or transmission report. If filed too early, the legal action is inadmissible, and you must start again from the beginning. Wait for the day to pass and use the time for a written request for a status update.
What does the action for failure to act cost me?
Nothing. It is a procedure before the Sozialgericht like any other and therefore falls under § 183 SGG: free of charge for “insured persons, benefit recipients … persons with disabilities”, with no court fee and no advance payment. And here too, § 193 Abs. 4 SGG applies: the authority's expenses are not recoverable, so you do not bear them even if the legal action is unsuccessful. Because of its simple substance – at its core, only the question of whether the waiting periods have expired – it is also the legal action that is most readily brought without a lawyer. If you are a member of a Sozialverband or a trade union, the staff there will usually take it on without further ado.
What is a “sufficient reason”?
A substantive reason why a decision could not yet be made – for example, an expert report under way, documents still outstanding, input still needed from another authority, or proceedings not yet concluded on whose outcome the decision depends. Mere work overload is not readily regarded by the courts as sufficient, at least not on an ongoing basis. If a sufficient reason exists, the legal action is not dismissed: the court suspends the proceedings and sets a deadline “which can be extended”; if a decision is made within this deadline, it declares the main issue settled. That too is a success – the matter is now under judicial observation, and a court-set deadline tends, experience shows, to work differently from your own.
Will I receive the benefit this way?
No, and this expectation should be set correctly from the outset. The action for failure to act is aimed at a decision being made at all – not at how it is decided. If the Bescheid that is then issued is a refusal, the legal action has achieved its purpose, even if the outcome does not satisfy you. Your path then continues quite normally: Widerspruch within one month, and if that too is rejected, a legal action before the Sozialgericht. Expect this and keep the new deadline in view – it happens that people, relieved at finally having received the Bescheid, let the Widerspruch deadline pass. If your ongoing subsistence is at stake, pursue an application for interim relief in parallel.
Should I make one more enquiry beforehand?
Yes – it is not a legal requirement, but the most effective and cheapest step. A written request for a status update with a self-set deadline of around two weeks very often leads to the matter being processed; a matter that is being enquired about moves forward in the processing queue. And if nothing happens, you have gained two things: documented evidence that you have been actively following up, and the opportunity to assess the reply. If it states that an expert report is under way or that documents are missing, you will know in advance that the authority will rely on a sufficient reason – and you can submit any missing documents instead of letting a legal action come to nothing.
Do I need to lodge a Widerspruch beforehand?
No. The preliminary proceedings under § 78 SGG precede the rescissory action – that is, the legal action against an administrative act. With the action for failure to act, the position is exactly the reverse: there is no Bescheid against which a Widerspruch could be directed. The waiting periods of § 88 SGG take the place of the preliminary proceedings – six months after an application, three after a Widerspruch. Actually wait out this time: it is the only admissibility hurdle the legal action has, and a legal action brought too early is dismissed without anything changing in your situation.
The authority decides as soon as the legal action arrives — what now?
This is the most common course of events, and it is a success. You then declare the legal dispute settled on the main issue. One point is often forgotten and costs money: at the same time, apply for the authority to bear your necessary expenses. The court decides on costs under § 193 SGG, and if the authority only acted in response to the legal action, there is much to suggest that it will cover your costs – lawyer's fees, for instance. Without an application, this is not decided. After that, check the Bescheid on its merits and do not let the Widerspruch deadline pass if it is a refusal.
What if I cannot wait that long?
In that case, the action for failure to act is not the right remedy – it precisely requires that six or three months have passed, and even after that it does not take effect immediately. If your subsistence is affected because rent, electricity, medication or care are not secured, the application for interim relief under § 86b SGG is the route: under its subsection 3 it is “admissible even before the lodging of an action” and requires no waiting period. The two procedures do not exclude each other – you can file the application for interim relief to secure the acute situation and pursue the action for failure to act to compel the decision. For the application for interim relief, however, you need evidence that your situation cannot wait – that it is untenable now.
