represented by:
xxx
Plaintiff,
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Social Court of Hildesheim – 24th Chamber – rendered the following judgment in the oral proceedings of November 19, 2010, by the presiding judge, Judge xxx, and the lay judges xxx and Mr. xxx :
1. The defendant is ordered, by amending the decision of July 31, 2008, as modified by the partial remedy and objection decision of August 21, 2008, to grant the plaintiffs further heating costs in the amount of €36.06 for the period from May 1, 2008 to July 31, 2008.
2. The defendant shall reimburse the plaintiffs for 3/4 of their necessary extrajudicial costs.
Facts of the case:
The only remaining point of contention between the parties is the defendant's obligation to cover higher heating costs within the framework of granting benefits under the German Social Code, Book Two (SGB II).
The plaintiff no. 1, born in xxx, and her son, the plaintiff no. 2, born in xxx, are currently receiving benefits under the German Social Code, Book II (SGB II).
The plaintiffs live in a ground-floor apartment of approximately 47 square meters located at [address redacted] in Göttingen. Their heating costs for the period in question amounted to €90.00 per month. The plaintiffs heat with gas. Hot water is also supplied by the heating system. The total floor area of the building is 447.35 square meters.
By decision dated April 14, 2008, the defendant granted the plaintiffs basic income support benefits under Book II of the German Social Code (SGB II) for the period from May 1, 2008, to October 31, 2008. In addition to the respective standard benefit, a supplementary allowance for single parenthood for plaintiff 1, and housing costs amounting to €282.96, the defendant granted heating costs in the amount of €76.89. The defendant calculated the so-called hot water allowance at €5.02 for plaintiff 1 and €3.27 for plaintiff 2, totaling €8.29. Furthermore, an "individual hot water share" of €3.75 was taken into account.
On July 4, 2008, the plaintiffs' legal representative applied for a review of the decision of April 14, 2008 pursuant to Section 44 of the German Social Code, Book X (SGB X).
Regarding the period from 1 August 2008 onwards, a separate objection procedure was carried out concerning the decision at issue in case S 24 AS 1579/08.
By decision dated July 31, 2008, the defendant rejected the amendment of the decision dated April 14, 2008. A calculation and determination had been made by way of a decision on the objection dated July 2, 2008. A related lawsuit had been withdrawn. The plaintiffs based their objection of August 5, 2008, on the grounds that the actual heating costs, less the flat-rate hot water charge, should be covered, as unreasonable heating behavior on the part of the objectors could not be proven.
By partial remedy and appeal decision dated August 21, 2008, the plaintiffs' appeal was granted insofar as a deduction of the "individual hot water share" of €3.75 would no longer be made. The appeal was otherwise rejected.
The plaintiffs filed a lawsuit on August 25, 2008, against this decision, continuing to pursue their claim. In support of their claim, they initially referred to two rulings of the Lower Saxony-Bremen State Social Court (LSG) regarding the determination of reasonable heating costs: L 8 AS 427/05 ER and L 13 AS 125/07 ER. They argued that the plaintiffs could not be proven to have used inefficient heating methods, and therefore, pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), they were entitled to the actual heating costs less the hot water allowance. The hot water allowance was not in dispute in this case.
The plaintiffs' legal representative initially submitted a written request,
"The defendant is ordered, by amending the defendant's decision of July 31, 2008, as modified by the appeal decision of August 21, 2008, to grant the plaintiffs the requested benefits monthly in the statutory amount, taking into account the legal opinion of the court.".
After the proceedings had initially been suspended pending the referral decision of the Federal Social Court under file number B 14/11b As 9/07 R, the plaintiffs' legal representative, by letter dated February 10, 2010, declared the proceedings settled insofar as the amount of the standard benefit was the subject of dispute, based on the decision of the Federal Constitutional Court, file number 1 BvL 1/09.
The plaintiffs' legal representative now requests that
to order the defendant, by amending the decision of July 31, 2008, as modified by the partial remedy and objection decision of August 21, 2008, to grant the plaintiffs further heating costs in the amount of €36.06 for the period from May 1, 2008 to July 31, 2008.
The defendant's representative requests that
to dismiss the lawsuit.
He argues that, even considering the heating cost index, a reasonable living space of 47 square meters should be used as the basis, not the abstractly reasonable living space. The Federal Social Court's statements in its ruling under file number B 14 AS 36/08 R referred to a case in which the actual living space exceeded the maximum reasonable value. At the very least, the additional space requirement for single parents cannot be taken into account if it is not actually used. While considering the additional space requirement when determining the reasonableness of accommodation costs is sensible, as otherwise there is a risk of insufficient space coverage, the typical scenario of a two-person household assumes that the residents share a bedroom. However, this is generally not the case for single parents. If this provision is not applied, it is unclear why a single parent with a child should be significantly better off with regard to heating costs for an identical apartment compared to a childless couple. Single parenthood does not provide a valid criterion for differentiation in this case. Furthermore, the court's calculation contains an error. According to the 2009 heating cost index, €1.80 should be deducted from the calculated value for buildings with central hot water systems, as the comparative value in the tables refers to the total area of the building and solely to space heating. Therefore, the calculation should not be based on €16.20/m² per year, but rather on €14.40/m².
During the proceedings, the defendant submitted calculation sheets showing that, of the approved heating costs of €76.89 in May and June 2008, a total of €8.29 (€5.02 for plaintiff 1 and €3.27 for plaintiff 2) was deducted as hot water costs. In contrast, in July 2008, a total of €10.62 (€6.63 for plaintiff 1 and €3.99 for plaintiff 2) was deducted as hot water costs.
Regarding further details of the facts and the submissions of the parties, reference is made to the court file and the administrative files submitted for proceedings S 13 AS 276/10 WA, which were available and formed the basis of the decision.
Reasons for the decision:
The admissible claim is well-founded.
The plaintiffs are entitled to further heating costs in the amount of €36.06 pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
The plaintiffs made advance payments for heating costs amounting to €90.00 during the period in dispute.
According to the jurisprudence of the Federal Social Court, which this chamber fully follows, the so-called hot water allowance must first be deducted from the advance payment for heating costs, as this amount is already included in the plaintiffs' standard benefit for heating water, meaning it does not need to be granted again in the housing costs (Federal Social Court, Judgment of February 27, 2008, B 14/11b AS 15/07 R, juris; see also Brünner in LPK-SGB II, § 20 para. 11: 1.8905% of the standard benefit). This results in an amount of €6.26 for plaintiff 1 in the months of May and June 2008 (standard benefit of €347) and an amount of €3.76 for plaintiff 2 (social assistance of €208.00), which would be deducted from the heating costs incurred. This results in an amount of €79.98 in heating costs to be taken into account for the months of May and June 2008.
This results in the following calculation:
May 2008 €79.98 less €68.60 already granted (€76.89 less €8.29)
June 2008 €79.98 less €68.60 already granted (€76.89 less €8.29)
For the month of July 2008, the amount to be deducted from the heating costs is €6.33 for plaintiff 1 (standard benefit of €351) and €3.80 for plaintiff 2 (social assistance of €211.00). This results in a total of €79.87 in heating costs to be taken into account.
July 2008 €79.87 less €66.27 already granted (€76.89 less €10.62)
In determining an upper limit for the reasonableness of heating costs, the court follows the jurisprudence of the Federal Social Court (judgment of September 22, 2009, B 4 AS 70/08 R, juris). According to this jurisprudence, heating costs within the meaning of Section 22 of the German Social Code, Book II (SGB II) are not to be calculated as a lump sum. Heating costs are only not reimbursable up to the amount of the actual expenses if they appear unnecessary in terms of their amount when heating is carried out properly and economically. This requires a specific examination in each individual case. Exceeding the upper limits of a local or nationwide heating cost index can be considered an indication of a lack of necessity in this respect (see also Federal Social Court, judgment of July 2, 2009, B 14 AS 36/08 R, juris). In the absence of a local heating cost index for Göttingen for the billing period 2008, which is the subject of this dispute, the court has resorted to the nationwide heating cost index for the billing year 2008, and has used the table value in the right-hand column for natural gas and a heated living area between 251 and 500 m² of €16.20.
According to the case law of the BSG (ibid.), this value is to be multiplied by the value that results for the household of the person in need of assistance as an abstractly appropriate living space according to the implementing regulations of the Länder to Section 10 Paragraph 1 Housing Promotion Act (WoFG).
According to section 11.2 of the guidelines on social housing promotion in Lower Saxony, a living space of up to 60 square meters is considered appropriate for rental apartments for two household members.
According to section 11.4, the appropriate living space for single parents is further increased by an additional 10 square meters.
The plaintiff in case 1 was indisputably a single parent during the period in question, so that an abstractly appropriate living space of 70 square meters must be assumed.
Multiplying this results in an annual amount of €1134.00, i.e. a maximum monthly heating cost allowance of €94.50.
The heating costs, adjusted for the hot water flat rate, amount to €79.98 in May and June 2008 and €79.87 in July 2008 during the period in dispute.
From this amount, the benefits already granted by the decision of April 14, 2008, as amended by the partial remedy and appeal decision of August 21, 2008, in the amount of €76.89, less a hot water allowance of €5.02 for plaintiff 1 and €3.27 for plaintiff 2 for the months of May and June 2008, totaling €68.60, would have to be deducted. This would result in a difference of €11.38 per month, which must be granted retroactively for the months of May and June 2008.
According to the submitted calculation sheets, for the month of July 2008, an amount of €6.63 was deducted from the approved heating costs for plaintiff 1 and an amount of €3.99 for plaintiff 2. This would result in a total deduction of €66.27, leaving a difference of €13.60 which must be subsequently approved for the month of July 2008.
The defendant has not provided any specific details regarding inappropriate heating behavior, so there are no apparent reasons that would justify a deviation below the values of the heating cost index.
Contrary to the defendant's assertion, the actual living space of the plaintiffs' apartment is not the relevant factor here. While the defendant is correct in assuming that the Federal Social Court (BSG) in the aforementioned ruling had to decide on a case in which the actual living space exceeded the abstractly reasonable living space, the BSG's statement that the abstractly reasonable living space should be used as the basis for calculation is unambiguous and not open to interpretation. This reliance on the abstractly reasonable living space is also appropriate. The use of the heating cost index ultimately serves to simplify administration. However, this purpose is only adequately served if a uniform standard is chosen for determining the applicable living space. This does not mean that the defendant would have to cover all heating costs in every case where the actual living space is smaller than the abstractly reasonable one. The defendant remains free to conduct a specific review in each individual case and ultimately demonstrate and, if necessary, prove uneconomical heating practices. However, the defendant failed to do so by the end of the oral proceedings, even though the court had already requested supplementary submissions to provide concrete evidence of the wasteful use of heating energy by order dated February 18, 2009.
Furthermore, contrary to the respondent's assertion, a further deduction of €1.80 is not to be made from the calculated value. Hot water costs have already been deducted in this case. The note in the heating cost index does not imply that different limits of reasonableness apply to buildings with central hot water systems. It merely serves as a guide for consumers who wish to calculate whether their individual costs comply with the limits indicated in the heating cost index.
The claim was therefore to be granted to the extent stated in the judgment.
The decision on costs is based on Section 193 Paragraph 1 of the Social Court Act (SGG) and takes into account that the plaintiffs were ultimately unsuccessful in their claim regarding the amount of the standard benefit and that the initial written application did not indicate that the action was directed exclusively at the costs of accommodation and heating as a permissible limitation of the subject matter of the dispute.
The appeal is inadmissible pursuant to Section 144 Paragraph 1 Number 1 of the Social Court Act (SGG) because the value of the subject matter of the appeal does not exceed the relevant threshold of €750.00. No grounds for granting leave to appeal pursuant to Section 144 Paragraph 2 of the Social Court Act (SGG) are apparent.
