Announced on: May 18, 2011
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant,
The Social Court of Hildesheim, in its oral hearing of May 18, 2011, through the presiding judge, Judge xxx, and the lay judges xxx and xxx, rendered the following judgment:
1. The decision of April 30, 2009, as amended by the decision on the objection of June 22, 2009, is modified. The defendant is ordered to grant the plaintiff further benefits in the amount of €45.00.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
3. The appeal is admitted.
The parties are in dispute over the amount of benefits to be granted for the initial furnishing of an apartment under the Second Book of the Social Code (SGB II).
The plaintiff had been receiving basic income support benefits under the German Social Code, Book II (SGB II) since 2008. She moved to a new apartment within Göttingen on April 1, 2009, and in connection with this, applied to the City of Göttingen on April 3, 2009, for assistance with initial furnishings – including the purchase of a washing machine. By decision dated April 30, 2009, the City of Göttingen granted the plaintiff €342 for initial furnishings without providing a detailed breakdown. For further details of the decision dated April 30, 2009, please refer to pages 103 et seq. of the administrative file.
The plaintiff filed an objection to this decision on May 20, 2009. She argued that the decision was insufficiently reasoned, contrary to Section 35 of the Tenth Book of the German Social Code (SGB X). The plaintiff could not understand how the approved amount was calculated. The apparently approved lump sum did not indicate the amount of benefits allocated to specific items.
The city of Göttingen subsequently sent the plaintiff a statement detailing the total amount. According to this statement, €230 had been approved for the purchase of a washing machine. Further details of the breakdown can be found on pages 105 et seq. of the administrative file.
The plaintiff maintained her objection, arguing that the lump sum granted for the purchase of the washing machine was too low and incomprehensible. An inquiry at electronics stores in Göttingen had revealed that no appliance was offered for less than €299. Therefore, the granted lump sum was insufficient to cover her existing needs. However, claims for initial furnishings must be assessed by the benefits provider based on actual need.
By decision dated June 22, 2009, the defendant rejected the plaintiff's objection as unfounded. The fixed flat rate was based on current prices on the used market and had been determined following careful research. Furthermore, a washing machine could certainly be purchased for €230; the plaintiff could reasonably be expected to compare different offers, possibly wait for weekly offers from local stores, or purchase a used appliance.
The plaintiff filed a lawsuit against this decision on July 2, 2009, with the Social Court (SG) of Hildesheim. She argued that even based on the defendant's statements, it was impossible to understand how the lump sum had been calculated. The defendant had failed to provide any supporting documentation. The plaintiff stated that she could not have purchased a machine at the stated prices at the time, and waiting for potential special offers was unreasonable. The documentation submitted by the defendant during the proceedings to calculate the lump sum did not relate to the application period and was also flawed in its content. For example, it referred to internet auctions where the bidding period was still ongoing. Furthermore, the plaintiff argued that purchasing a used device was unreasonable for benefit recipients due to the lack of any warranty claims.
On July 28, 2009, the plaintiff purchased a washing machine for €275.00. Further details of the purchase receipt are referenced on page 34 of the court file. It was unreasonable to expect the plaintiff to continue searching for a machine priced at €230.00. Neither at the time of the application nor at the time of purchase on July 28, 2009, was such a machine available on the market within the plaintiff's reasonable means. The defendant is therefore obligated to reimburse the outstanding difference of €45.00.
The plaintiff requests that
to amend the defendant's decision of April 30, 2009, as amended by the appeal decision of June 22, 2009, and to grant the plaintiff further benefits in the amount of 45.00 euros.
The defendant requests that
to dismiss the lawsuit.
He maintains that the amount of €230 is appropriate and correctly calculated. He also considers the purchase of a used appliance reasonable. The defendant observed the washing machine market within a radius of up to 75 km for an extended period, evaluated relevant offers in newspapers and online, and determined the approved flat rate based on this analysis. Its appropriateness is evident from the documents submitted to the court file (see pages 37ff, 43ff, and 59ff of the court file).
Regarding further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative file, which were submitted to the court and formed the basis of its decision.
The admissible action is well-founded. The decision of April 30, 2009, as amended by the decision on the objection of June 22, 2009, is unlawful and violates the plaintiff's rights pursuant to Section 54 Paragraph 2 of the Social Courts Act (SGG).
The plaintiff's claim for payment of the requested difference arises from Section 23 Paragraph 3 Sentence 1 No. 1, Sentence 2 of the German Social Code, Book II (SGB II). According to this provision, benefits for the initial furnishing of apartments, including household appliances, are not covered by the standard benefit and are provided separately. A prerequisite is that the person in need demonstrates a corresponding need to the benefit provider. The claim under Section 23 Paragraph 3 Sentence 1 No. 1 SGB II, like all benefits under the SGB II, is needs-based (see Federal Social Court: Judgment of August 20, 2009, Case No. B 14 AS 45/08 R). If the conditions of Section 23 Paragraph 3 SGB II are met, the benefit provider is obligated to cover the need. This is a mandatory decision (see also: Eicher/Spellbrink SGB II § 23 RN 113).
That is the case here. At the time of the application, the plaintiff undoubtedly had a corresponding need. This is not disputed by the defendant. The city of Göttingen was therefore obligated to meet this need of the plaintiff.
According to Section 23 Paragraph 3 Sentences 5 and 6 of the German Social Code, Book II (SGB II), the benefits listed in Sentence 1 can be provided as benefits in kind or cash benefits, including in the form of lump sums. When calculating the lump sums, suitable information about the necessary expenses and verifiable empirical data must be taken into account. The basic income support provider has only limited discretion in determining the amount of the lump sum. It is required to apply the "verifiable empirical data" regarding the costs of the corresponding furnishings mentioned in Section 23 Paragraph 3 Sentence 6 of the SGB II to support the lump sums. However, it may base this on values from the lower end of the furnishing price range.
These lump sums are generally subject to judicial review due to the limited discretion of the benefit provider (see BSG, loc. cit.). However, the granting of lump sums must not result in a reduction of the benefit entitlement compared to the provision of benefits in kind or individually determined cash benefits (see BSG: Judgment of August 19, 2010, Case No. B 14 AS 10/09 R).
During the proceedings, the defendant submitted extensive documentation which, in his opinion, justifies the amount of the lump sum. He further stated that he had conducted extensive price analyses and regularly monitors the market for new and used appliances in the local area. The court is convinced that this is generally sufficient to substantiate the verifiable empirical data required under Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II). The aforementioned legal provision allows the benefit provider to cover a large number of similar cases by paying a lump sum. This is ultimately intended to simplify administrative practice and allow the benefit provider to forgo individual case reviews. Section 23 Paragraph 3 of the SGB II permits the use of lump sums for various everyday consumer goods, ranging from large household appliances to baby clothing. It would therefore be wrong to impose excessive demands on the respective benefit provider when determining these lump sums, demands which it cannot meet due to its organizational resources, and thereby effectively deprive it of the option of lump-sum payments specifically granted by Section 23 Paragraph 3 of the German Social Code, Book II (SGB II). The subsequent surveys conducted to determine prices thus appear appropriate. According to the available documents, the defendant regularly monitored the relevant market for such devices and evaluated offers from various electronics retailers as well as newspaper and internet advertisements. This is considered sufficient. Further investigations, such as a scientifically sound statistical analysis, would be impractical and ultimately beyond the defendant's capacity.
It is also not objectionable that the defendant included the price of used appliances in the calculation of the flat-rate allowances. It is generally reasonable to refer benefit recipients to the possibility of purchasing a used appliance (see also Karlsruhe Social Court: decision of October 26, 2007, file number 5 AS 5035/07 ER). According to general experience, the lifespan of a high-quality used appliance (for example, from a household clearance) is not necessarily shorter than that of an inexpensive new appliance. Therefore, as long as the benefit provider does not attempt to reduce the flat-rate allowances to unrealistic levels by massively including the prices of so-called "hobbyist" appliances or similar items, referring recipients to used appliances is generally acceptable.
For the relevant application date of April 2009, the defendant has failed to prove that the granted lump sum of €230 was sufficient to cover the applicant's needs. The oldest documents submitted date from July 2009 and, unlike the subsequently submitted documents, are not very informative. Despite repeated requests, the defendant has not been able to demonstrate, for the period of April 2009, the verifiable empirical data on which the lump sum of €230 paid out at that time was based.
The plaintiff stated that, according to her research, only one device was available for €299 during that period. At the time of purchase, the lowest offer was €275.
The defendant was unable to refute this. It cannot be ruled out that cheaper devices were unavailable at the time. Therefore, it must be assumed that the plaintiff had a need amounting to €299, which the defendant would have been obligated to cover. The plaintiff could not be expected to wait a longer period for a less expensive device, as the need, according to Section 23 Paragraph 3 of the German Social Code, Book II (SGB II), must be met promptly due to its essential nature (see also the ruling of the Social Court of Karlsruhe, loc. cit.).
The defendant was therefore obliged to cover the actual costs incurred in the amount of 275 euros, in addition to the lump sum granted.
Section 23, paragraph 3, sentence 5 of the German Social Code, Book II (SGB II) grants the basic income support provider discretionary power to choose the form of benefits, allowing it to provide benefits as in-kind benefits or as cash benefits, the latter also in the form of lump sums. Therefore, the recipient of benefits generally only has a right to the proper exercise of this discretion, but not a legal entitlement to a specific type of benefit (see also Federal Social Court (BSG): Judgment of August 20, 2009, Case No. B 14 AS 45/08 R). In the present case, however, the discretion is reduced to zero. According to its own statements, the defendant has only provided lump sums for such needs anyway, so the obligation to reimburse costs did not deprive it of the possibility of exercising discretion (see also Federal Social Court (BSG): Judgment of August 19, 2010, Case No. B 14 AS 10/09 R).
The decision on costs follows from § 193 SGG.
The appeal is admissible pursuant to Section 142 Paragraph 2 No. 1 of the Social Court Act (SGG). In the opinion of the Chamber, the question of the requirements to be placed on the basic income support provider with regard to the determination of lump sums pursuant to Section 23 of the German Social Code, Book II (SGB II), is of fundamental importance.
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