Abstract
The Objection Committees are largely unknown institutions, although they are an integral part of the German social insurance system. With more than 90 percent of Germans being covered by at least one branch of the social insurance system, nearly every German citizen could potentially be addressed by an onerous administrative decision of their social insurance institution. These onerous administrative acts can only be contested by entering an objection, thus initiating a so-called “preliminary procedure”. This procedure leads, in the first stage, to an internal review through the authority (redress procedure) and, in the second stage, to a final decision through the Objection Committee. However, the second stage is only initiated if the authority maintains its decision and does not remedy the appeal. The composition as well as the functioning of the Objection Committee is determined by the self-governing bodies of the respective social insurance institutions in their statutes
There are yet to be in-depth assessments of the Opposition Committees, likely due to their perceived inconspicuousness. Nevertheless, with more than 800 000 objections every year, of which about 400 000 ultimately reach the appeal committees, the latter play an important role in social security. Therefore, Appeal decisions form a link between administrative and judicial proceedings as claimants can lodge an appeal against the Objection Committee’s final decision with the competent Social Court within a month.
From 2014 to 2016, the Hans Böckler Foundation supported the research project “Objection Committees in Social Security - Assessment and Impact Analysis” of the Halle Centre for Social Research and the University of Kassel/Germany. The study mainly analyses a questionnaire addressing members of the objection committees. Furthermore, the statutes of all social insurance bodies and almost 200 court files as well as scientific literature, case law and expert discussions with judges and committee members have been analysed. The research project had two objectives. On the one hand, the study aimed providing insights into the internal organisation and functioning of the objection committees as well as into their members and their respective perceptions about the impact of their activities. On the other hand, the study intended to contribute to the rather weakly represented research field of sociology of law, which has so far been mostly absent in the larger context of social security law. The main research focusses were access to legal protection, the respective requirements leading to a social court proceeding, the interaction between professional and voluntary members of the committees, and the forms of dispute resolution in social insurance administrative proceedings. A total of eleven authors have contributed to the study.
Böttcher put a special emphasize on the professional and voluntary members of the opposition committees. Out of 978 respondents, 807 were voluntary members while only 152 held their position as full-time members. Eighty percent of the voluntary and 57 percent of full-time members are male. The full-time members are younger than the volunteers, while women in both groups generally being younger than their male colleagues. Furthermore a high number of university graduates in full-time positions as well as in voluntary positions of employer’s representatives could be recognized. When comparing the expert knowledge of the professional members and the “lay knowledge” of the voluntary members, only 23 per cent of the volunteers stated that they were trained when they started their work in the committee. Therefore, an exchange of experience and expertise is of great importance, especially for the voluntary members.
Professional members are also far more reluctant about the presence of the appellants during the consultation procedure then the voluntary members. Professional members generally consider the complainants as an aggravating factor for their decision making and see no value in their presence for clarifying the facts of the case.
Höland provides the reader with interesting legal-sociological insights. He points out that the preliminary proceedings serve to settle conflicts of interest, to relieve the burden on the judiciary and to control the administration by checking the legality and expediency of the administrative act again in the opposition proceedings. In this process, the administration has the opportunity to revise its decision. If the appeal is forwarded to the Objection Committee, the issue is no longer in the hands of the administration, since the Assembly of Representatives, as the honorary body of the social insurance institutions, determines the formation and the working methods of the Committees in their statute. Thus, self-administration and objection committees are a prime example of the participation of laypersons in legal proceedings.
Welti deals with the key deciding factors of the Objection Committees. When making a decision, all relevant facts have to be determined first and then, in a second step, subsumed under the relevant legal norm. On the basis of the principle of examination, the committees are authorised to have expert opinions drawn up on their own initiative. Furthermore, they may also obtain additional information and hear the appellant. However, the objection committees make little use of this option, due to the high number of cases per meeting and/or the geographical distance of the persons involved.
In a further contribution, Welti and Fischer discuss the contribution of the Objection Committees to the administration’s self-government, the legal protection of the appellant and the reduction of work-load for courts. Correspondingly, a potential right of participation of the objector in the committee meeting is discussed, but rejected, since the appellants’ interests are usually well-maintained by the reasoning of the objection decision.
Pitschas takes an administrative science perspective. He describes the objection committees as a “personalised” control resource of socio-political programming that is open to development. He takes a rather critical perspective towards voluntary members of the committees. As non-professionals and not necessarily independent actors, they have the task of reconciling the legal positions and the best interests of the social insurance agencies. The author has doubts about the control and legal protection function of the Objection Committees, since only about one third of the objections are successful while the matter of conflict is often not dealt with in a professional manner before the preliminary procedures are launched. He also notes a certain discrimination of the appellant due to the common communication culture as well as the frequent ban on participation for the appellant in the actual meetings. Here, he sees a threat to the acceptance of the final decision.
Rottleuthner focuses on the filter function of the preliminary proceedings, i.e. the reduction of the courts’ workload. More than 30 percent of the appeals are settled in the preliminary proceedings. From the remaining 70 percent of appeals actually reaching the Objection Committee, only about 3 percent are considered to be well-founded. This suggests that the number of lawsuits before the social courts is not noticeably declining. However, well over 60 per cent of the claimants do not file a complaint after receiving a negative decision on their objection, although the reasons for this decision are unclear.
In her contribution, Rehder focuses on the social court system, and again highlights the classic conflict situation between citizens and the state due to the assignment of social law to public law.
In the next article, Höland, Buchwald and Krausbeck, examine the lawsuits that have been filed in court. After an analyses of court cases and questionnaires, they resume that men file more complaints against negative decisions than women and that persons who are older than 50 years are clearly overrepresented in court cases. Their findings suggest that about half of the claimants are represented by a lawyer, as in preliminary proceedings.
Krausbeck then goes into detail about the composition as well as the internal structure of Opposition Committees. She comes to the conclusion that there are substantial differences in the course of the meetings and the composition of the Objection Committees between the respective insurance carriers. These differences are most probably created by the great scope when determining the statutes and rules of procedure.
Adler compares the German Objection Committees with the corresponding bodies in the United Kingdom. Since 2013, there has also been an opportunity for internal administrative review. A preliminary procedure by a remote dispute resolution team is mandatory in the UK as well. Adler concludes that the preliminary proceedings in the UK act as a filter, similar to the German social security system.
The more than 200-page book concludes with a summary of the results. Generally speaking, the preliminary procedure fulfils its tasks and the Objection Committees are of great practical importance, despite their low degree of public recognition. The members of the Opposition Committees represent a self-confident, responsible body capable of monitoring legality and expediency of administrative decisions.
The focus of the study was on surveys with members of the Objection Committees and judges. Hence, the non-inclusion of the appellants in this study presents a major gap, since it could have provided insights on why appeals are withdrawn or otherwise settled, why there are decision to not to file action and whether there is a need to attend the appeal meeting in the appellants opinion.
Still this first-of-its-kind in-depth empirical research study on Objection Committees in the German social insurance system is a success and offers the reader a first starting point on a thoroughly exciting and important topic. This study, which is written in German, examines a specific issue of German social insurance. It is of general value for readers interested in the administrative procedures and might initiate further research - on a comparative basis - in this area.