What does a legal action cost me if I lose?
Nothing in court costs – and, which most people do not know, also nothing in the authority's costs. § 183 SGG makes the proceedings free of charge for “insured persons, benefit recipients … persons with disabilities”, regardless of outcome. And § 193 Abs. 4 SGG provides: “The expenses of the parties liable to fees named in § 184 Abs. 1 are not recoverable.” The authority therefore cannot demand its costs from you at all. This is the decisive difference from civil proceedings, where the losing party pays the other side – and it is the reason why the widespread fear of a cost risk is unfounded here. All that remains is your own lawyer, if you take one; Prozesskostenhilfe is available for that.
Do I need a lawyer?
Not before the Sozialgericht and the Landessozialgericht: § 73 Abs. 1 SGG expressly states that the parties may “conduct the legal dispute themselves”. Before you look for a lawyer, however, it is worth looking at subsection 2 – there, among others, trade unions, associations of employees with a social- or occupational-policy purpose, and associations of persons with disabilities are named as authorised representatives. For most people, a Sozialverband is the most practical route: representation without a lawyer and without Prozesskostenhilfe, for the membership fee. There is one exception: before the Bundessozialgericht, mandatory representation applies under § 73 Abs. 4 SGG, except in PKH proceedings.
How much time do I have?
The deadline is one month. For the legal action, § 87 SGG calculates it from notification of the Widerspruchsbescheid; for the Widerspruch, § 84 SGG calculates it from notification of the Bescheid itself. Both provisions contain the same exception, which is stated almost nowhere else: “the time limit is three months where notification is served abroad.” This affects more people than you might think – pensioners resident abroad, posted workers, cross-border commuters. Anyone living in Germany has one month, and the month is short: it runs from notification, not from the day you opened the letter. If the deadline becomes tight, there is a simple way out that too few people use: lodge a deadline-preserving legal action without a statement of reasons – name, Bescheid with date and file reference, the sentence “I bring an action”, signature. You can submit the statement of reasons later, but a missed deadline cannot be made up. A legal action filed in three sentences is always better than a well-reasoned one that arrives too late: once the deadline has passed, the merits are no longer decided, however justified your claim may be.
Must I have lodged a Widerspruch beforehand?
As a rule, yes. § 78 Abs. 1 Satz 1 SGG requires that “before a rescissory action is brought … the lawfulness and expediency of the administrative act are to be reviewed in preliminary proceedings”. Without a Widerspruchsbescheid, the legal action is dismissed as inadmissible – the court then does not even look at the merits, and in the meantime the deadline against the original Bescheid has expired. Satz 2 names three exceptions: where a law provides for this in special cases, where the Bescheid originates from a supreme federal or Land authority or from the executive board of the Federal Employment Agency, and where a federal state or an insurance institution brings the action. If you only have the original Bescheid, lodge a Widerspruch first.
Who pays for the expert reports?
That depends on who orders them – and this distinction occasionally costs a great deal of money. Expert reports that the court obtains of its own motion belong to the court's own investigations and are borne by the court; this creates no cost risk for you. It is different under § 109 SGG: under that provision, “a specific doctor must be heard for an expert opinion” if you apply for it – a strong right, particularly for care grade, degree of disability and reduced earning capacity, because it brings a second professional view into the proceedings. The price is set out in the same provision: the hearing “may be made conditional on the applicant advancing the costs and … ultimately bearing them”. These are regularly four-figure sums – ask about the amount beforehand.
Can the court still impose costs on me after all?
Only in one narrowly defined case, and that requires an express warning. There is one exception, and it is narrow. Under § 192 SGG the court can impose costs where a hearing has to be adjourned through fault – or where someone “continues the legal dispute although the presiding judge has explained to them the abusiveness of pursuing it … and they have been informed of the possibility that costs may be imposed”. Note the double requirement: it is not enough merely to lose, nor merely to have a weak case. The presiding judge must have explained the abusiveness to you and must have expressly warned you, and you must then have carried on regardless. The minimum amount is set by § 184 Abs. 2 SGG – there it is €150 before the Sozialgericht, €225 before the Landessozialgericht and €300 before the Bundessozialgericht. In practice this means: a lost case does not lead to costs. A weak case does not lead to it either. Only once the court has explained to you why pursuing the matter further is abusive, and you have expressly been informed of the cost consequence, and you then carry on regardless, does § 192 come into consideration. If you receive such a warning, take it seriously and seek advice – it is not a standard formula.
What happens after the legal action is filed?
First, the court requests the administrative file from the authority and gives it the opportunity to comment. Then the court's own investigations begin: the Sozialgericht is not limited to what you submit, but obtains medical reports, hospital records and, where appropriate, expert reports itself. This is why a complete list of doctors is the most effective thing you can contribute. A discussion hearing often follows, frequently a settlement proposal, sometimes an acknowledgement by the authority – a good many proceedings end this way, without a judgment. If it comes to an oral hearing, a chamber decides, consisting of one professional judge and two lay judges. Expect proceedings to last from months to more than a year; there is no statutory time limit.
And if I lose — can it go further?
Then an appeal to the Landessozialgericht comes into consideration, but not always as a matter of course. § 144 SGG requires leave to appeal where the value of the subject matter of the complaint, in the case of cash benefits, services or benefits in kind, does not exceed €750. This hurdle does not apply, however, “where the appeal concerns recurring or ongoing benefits for more than one year” – which is frequently the case with ongoing social benefits. If leave is not already granted in the judgment, the complaint against refusal of leave to appeal remains available. The time limit for the appeal is again one month, and it remains free of charge at the second instance too.
