Legal Aid for those on Welfare When Contesting or How Much can I be Consulted From an Office

The Federal Constitutional Court had to decide whether a person needing legal advice after a reduction of welfare was entitled to consultation by an attorney or not. This much noticed judgment is of Mai 11, 2009 (re 1 BvR 1517/08).

The plaintiff applied for legal aid at the competent county court to defend herself against a reduction of her welfare (Arbeitslosengeld II). It was denied with the argument that a reasonable person would not need an attorney to contest the decision. It can be expected of the plaintiff that she obtains free legal consultation from the office being contested - even though this office is only a different department in the same agency. Contesting leads to the fact that the whole case will be reviewed ex officio. This is true even when the contesting person does not bring any legal arguments or different facts.

The court ruled that such decision infringes this person's right of equal application of the law (art. 3 Abs. 1 GG in conjunction with. art. 20 I GG and art. 20 III GG). Therefore, the county court's judgment was voided. The rights of the applicant for legal aid are infringed because an approximate equality between persons with and without means in extra judicial is constitutionally guaranteed. The gauge of comparison is the action of a person well-off, who weighs the costs when requesting legal consultation. A reasonable person would seek neutral advice and not consultation from a party on the otherside. When it comes to hiring a lawyer, it all depends on how much an applicant needs help from someone else to effectively exercise his procedural rights or if this person cannot really do it alone, when a problem is to be clarified to which no precedence exists.

It cannot be expected that a person obtain advice from the office whose decision is later to be officially contested. This decision stands even when this consultation is organized and given by a different department with different caseworkers when of one and the same office. There exists the abstract danger of conflicts of interest which the applicant cannot personally recognize. Therefore, the advice from the office that grants and also decides on the contest when it delivers to a refusal can not support the applicant person in obtaining independent and individual advice. Such collision would interfere with the procedural principle of "equality of arms" and equal distribution of the litigation risk in a possible later judicial proceeding. This fiscal point of view to save costs is no reasonable justification to deny legal aid for consultation in such cases.

Remark:

Now LG2G has been finally vindicated by the highest court in Germany. Administrative offices are not good for consultation! The task of an office is to decide upon applications - no more and no less. Giving real legal advice is the assignment of every lawyer and a few other professions who's task it is to give legal consultation.

When you need a lawyer, check out LG2G's Business Directory!