In the name of the people
Verdict
In the litigation
1. xxx,
2. xxx,
3. xxx,
4. xxx,
plaintiff,
Legal representative:
for 1-4: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Hildesheim Social Court - 33rd Chamber - recognized the following at the oral hearing on November 25, 2011 by the chairman, judge xxx, and the honorary judges xxx and xxx:
1. By repealing the decision of September 3, 2008 in the form of the objection decision of September 30, 2008 and amending the decision of January 11, 2008, the defendant is obliged to pay the plaintiffs a further 61.06 euros per month for the period from December 1, 2007 to May 31 .2008 to grant.
2. The defendant must reimburse the plaintiffs two thirds of their necessary out-of-court costs.
I. Facts:
There is a dispute between those involved over the granting of higher costs for accommodation and heating as part of the benefits under the Second Book of the Social Code (SGB II).
With an application dated December 1, 2007, the plaintiffs applied for the granting of benefits under SGB II for the first time and reported costs for accommodation and heating amounting to 750.00 euros per month (monthly rental costs 500.00 euros, costs for the fitted kitchen 10.00 euros per month). , costs for the garage 40.00 euros per month and monthly advance payments for cold additional costs as well as collective heating amounting to 200.00 euros per month) with rental agreement dated June 4th, 2007.
By decision dated January 11, 2008, the defendant granted the plaintiffs benefits for the period from December 1, 2007 to May 31, 2008. The defendant included an amount of 670.16 euros in the plaintiff's benefit calculation as appropriate costs for accommodation and heating. In a letter dated the same day, the defendant pointed out to the plaintiffs that the decision had initially taken into account the actual accommodation costs for basic rent including additional costs excluding heating costs of EUR 587.95, but that only EUR 505.00 was appropriate, which is why The plaintiff's apartment exceeds the appropriate amount by 82.95 euros. The defendant asked the plaintiffs to reduce the cost of accommodation within 6 months.
In a letter dated May 15, 2008, the plaintiffs requested a review of the decision of January 11, 2008 on the grounds that the costs of the accommodation include all operating costs owed under the rental agreement and all expenses that are inextricably linked to the accommodation and its heating and that are necessary for the intended purpose Use of the accommodation is required.
The defendant rejected the application in a decision dated September 3, 2008 on the grounds that when the administrative act was issued, the law was not applied incorrectly or the facts were not based on incorrect facts.
The defendant rejected the objection lodged in a letter dated September 14, 2008 with an objection notice of September 30, 2008 and stated that there was no evidence of illegality with regard to the approval notice of January 11, 2008. Household electricity cannot be provided and the deduction of the hot water flat rate from the heating costs is also not objectionable.
In response to this, the plaintiffs filed the present lawsuit with the Hildesheim Social Court in a letter dated October 22, 2008.
The defendant's calculation of the reasonable cost of accommodation was incorrect. The defendant assumes a monthly rent of 500.00 euros, additional costs of 87.95 euros and heating costs of 112.05 euros. The defendant did not take into account the costs for the fitted kitchen (10 euros per month) and the garage (40.00 euros per month). These 50.00 euros per month, i.e. 300.00 euros for the entire approval period, are still to be granted to the plaintiffs. At least for the first 6 months, the defendant had to pay the full cost of the accommodation, including the rent for the garage and the fitted kitchen, since these were part of the rental agreement from the start, the apartment would not have been rentable without these items and the items would not have been available could be terminated separately. The plaintiffs submitted a certificate from the landlord dated May 5, 2010, in which he confirmed that the apartment would not have been rentable without a garage and fitted kitchen.
The plaintiffs request
to oblige the defendant, by repealing the decision of September 3, 2008 in the form of the objection decision of September 30, 2008 and amending the decision of January 11, 2008, to pay the plaintiffs a further €61.06 per month for the period from December 1, 2007 to May 31, 2008 to grant.
The defendant requests in writing,
reject the complaint.
The costs for the garage are not accommodation costs. Furthermore, the garage could be separated because it was not connected to the apartment. Furthermore, the rental costs are no longer appropriate if the garage and the fitted kitchen are included, which, according to the case law of the BSG, is a prerequisite for counting garage costs or costs for renting a fitted kitchen among the costs of accommodation and heating. However, even if additional costs had to be paid, these would only amount to 60.04 euros, since taking into account a deduction for the hot water flat rate totaling 19.80 euros for the people in the community of needs, only 730.20 euros are the complete costs Accommodation and heating would have had to be provided. Since 670.16 euros per month had already been included in the calculation, only a difference of 60.04 euros per month remained.
During the course of the proceedings, the court obtained a further statement from the landlord in which he confirmed that the apartment with kitchen and garage was rented to the plaintiffs, which was the basis and condition of the rental agreement. Furthermore, a later change to the rental agreement was not possible.
The plaintiffs have initially raised the subject of the dispute to challenge a cancellation and reimbursement notice dated July 8th, 2008 in the form of the objection notice dated September 30th, 2008, which called for the reimbursement of an amount of 243.20 (original claim 2). declared settled in the course of the proceedings by letter dated June 24, 2010.
For further details of the facts and the status of the dispute, reference is made to the procedural file and the administrative file of the defendant. These were available and were the subject of the decision-making process.
II. Reasons for the decision
The lawsuit is admissible and justified
1.
The lawsuit is admissible.
In particular, the combined action for rescission and performance is permissible in this case. The court could therefore oblige the defendant directly to pay and not - as the wording of Section 44 Paragraph 1 SGB If the plaintiff requests a service that has already been definitively refused by the responsible administrative authority and the latter refuses to withdraw the final decision in accordance with Section 44 SGB The lawsuit based on Section 44 SGB In these cases, the plaintiff can also sue directly for performance if it is a performance to which there is a legal claim. From the jurisdiction regulation for the administrative procedure in Section 44 Paragraph 3 SGB An obligation on the part of the service provider to revoke the original decision and at the same time be sentenced to grant the benefit denied in this decision is contrary to the system (see Krasney / Udsching, Handbook of Social Court Procedures, 6th edition, 2011, Chapter IV, Rn. 76).
2.
The lawsuit is also justified.
The plaintiffs are entitled to the withdrawal of the decision dated January 11, 2008, which has become incontestable, with effect for the past and the granting of further costs for accommodation and heating. The requirements of Section 44 Paragraph 1 Tenth Book of the Social Security Code (SGB
The decision dated August 11, 2008 is illegal and violates the plaintiffs' rights. The plaintiffs have a higher entitlement to benefits under SGB II than that calculated in the decision of August 11, 2008.
Benefits according to SGB II according to Section 7 Paragraph 1 Sentence 1 SGB II are received by people who have reached the age of 15 and have not yet reached the age of 65, are able to work, are in need of assistance and have their habitual residence in the Federal Republic of Germany (able to work those in need of help). Those in need of help within the meaning of Section 7, Paragraph 1, Sentence 1, No. 3 in conjunction with Section 9, Paragraph 1 of the SGB II are, among others, those who cannot or cannot adequately secure their livelihood from their own strengths and resources, including from the income or assets to be taken into account, and who does not receive the necessary help receives from others, in particular from relatives or from providers of other social benefits. According to Section 28, Paragraph 1, Sentence 1 of the SGB II, non-working relatives who live in a community of need with those who are fit for work and need help receive social benefits, provided they are not entitled to benefits according to the fourth chapter of the twelfth book.
The adjudicating chamber has no doubts about the requirements according to Sections 7 and 9 and 28 SGB II. In particular, the plaintiff's need for help was determined by the decision dated August 11, 2008.
According to Section 19 Para. 1 SGB II, those who are fit for work and in need of assistance receive unemployment benefit II benefits to secure their livelihood, including the appropriate costs for accommodation and heating in accordance with Section 22 SGB II. According to Section 28 Para. 1 Sentence 2 SGB II, social benefit includes: services resulting from Section 19 Sentence 1.
According to Section 22 Paragraph 1 Sentence 1 SGB II, services for accommodation and heating are provided in the amount of the actual expenses, provided these are appropriate. Sentence 3 of the regulation stipulates that if the expenses for accommodation exceed the amount appropriate to the specificity of the individual case, they must be taken into account as the needs of the single person in need of help or the community of need for as long as the single person in need of help or the community of need is not It is reasonable to reduce expenses by changing your apartment, renting out or in some other way, but usually for a maximum of six months.
During the period in question, the plaintiffs are entitled to reimbursement of the full actual accommodation costs of EUR 750.00 per month, taking into account a deduction for the preparation of hot water of EUR 18.78 (EUR 5.63). for plaintiffs 1) and 2) and 3.76 euros for plaintiffs 3) and 4)).
Contrary to the defendant's opinion, he has to cover the actual costs of accommodation and heating for the first 6 months. This also applies to the costs of the rented garage and the rent for the fitted kitchen. The plaintiffs applied for benefits under SGB II for the first time in December 2007. It was only in a letter dated January 11, 2008 that the defendant pointed out to the plaintiffs that the plaintiffs' accommodation and heating costs were unreasonably high and asked them to reduce the costs. The defendant himself also stated in the letter that the costs for accommodation and heating must initially be granted in accordance with Section 22 Paragraph 1 Sentence 3 SGB II for a period of up to 6 months if the beneficiary is unable to reduce his accommodation costs or is unreasonable. As a prerequisite for this, the defendant stipulated in the letter that efforts to reduce accommodation costs must be documented in writing. This was supposed to happen for the first time on April 9, 2008. Nevertheless, in the decision of the same day, the defendant only included 670.16 euros instead of 750.00 euros in the calculation. The adjudicating chamber is convinced that a reduction in accommodation costs before the end of the 6 months mentioned in Section 22 Paragraph 1 Sentence 3 is not justified in this case. Although these 6 months are not a fixed deadline, they are a so-called “target deadline”. A deviation from the 6-month deadline should therefore only occur if there is an atypical case. Such a case is not apparent to the hearing chamber in this case. Case law allows for a deviation from the deadline, particularly in cases where a person in need of assistance refuses from the outset to make efforts to reduce accommodation costs. However, this cannot be assumed in the present case, since the service provider first asked the plaintiffs in April 2008 to provide evidence of how to reduce accommodation costs. Against this background, the defendant cannot rely on the fact that the plaintiffs have not proven any reduction efforts. The adjudicating chamber is not aware of a case that deviates from the “typical case” and could cause the deadline of 6 months to be reduced due to an atypical case. Since the defendant first informed the plaintiffs in a letter dated January 11, 2008 of the inappropriateness of the accommodation costs and the associated obligation to reduce them, and benefits were only granted from December 2007, the adjudicating chamber is convinced that the costs cannot be reduced until June 2008 at the earliest . Since the benefit period in question ends on May 30, 2008, a reduction in accommodation costs during this period is not legal.
Contrary to the defendant's opinion, he also has to pay the plaintiffs - at least in the first 6 months - the costs for the garage rent and the rent for the fitted kitchen. According to the established case law of the Federal Social Court (BSG), the costs for a garage must be borne at least if the apartment cannot be rented without a garage and the rental price is still within the appropriateness for the relevant place of residence if the garage cannot be “separated” (cf . among others BSG, judgment of November 7th, 2006 - Ref.: B 7b AS 10/06 R). Contrary to the defendant's opinion, “separability” does not refer to spatial separability, but rather to contractual separability from the rest of the rental agreement. However, in the opinion of the adjudicating chamber, these requirements are met in the present case. The plaintiffs' landlord confirmed that it was not possible to rent the apartment without the garage. According to him, a separate termination was also not possible. Whether the costs of the accommodation with the garage are still within the scope of appropriateness can be left to the opinion of the adjudicating chamber, since Section 22 Paragraph 1 Sentence 3 SGB II also applies here in favor of those in need of help, which states that the costs are usually only after can be reduced within a period of 6 months. Although the BSG always states in its judgments that the costs of accommodation with a garage must still be within the reasonable limits, the BSG has so far had to decide on cases in which people in need of assistance moved into an apartment with a garage while receiving assistance. In these cases, it is only justified to cover garage costs if the apartment can only be rented with a garage and the costs are still within reasonable limits with the garage. However, the regulatory purpose of Section 22 Paragraph 1 Sentence 3 SGB II leads the adjudicating chamber to the conviction that this cannot be applied in the present case, in which the people in need of help were already living in the apartment when they became in need of help. The purpose of Section 22 Paragraph 1 Sentence 3 SGB II is to enable those in need of help to reduce costs within a reasonable period of time. In particular, the legislature has taken into account notice periods before which a reduction is not legally possible, as otherwise those in need of assistance would have to pay the costs of accommodation from the standard benefit, even though they are still contractually obliged to pay the accommodation costs. In this case, however, this also applies to the garage. The garage was rented with the rental agreement for the apartment before benefits under SGB II were received. The plaintiffs can therefore not be accused of saying that the garage was not necessary for recipients of benefits under SGB II. However, since the garage cannot be terminated separately and was therefore linked to the rental agreement for the apartment, the notice period must also be observed here before the costs no longer apply. If an immediate reduction were possible because the costs of the garage are no longer within the scope of what is appropriate, the person in need of help would be forced to pay the costs for the garage from the standard benefit, since they are contractually obliged to pay - at least until the end of the notice period Rent including the costs of the garage is required.
The same applies to the costs of renting the fitted kitchen. Here too, the BSG decided that the usage fee for the kitchen equipment is part of the services for accommodation and heating, which are provided in accordance with Section 22 Paragraph 1 Sentence 1 SGB II in the amount of the actual expenses, provided they are appropriate (see, among other things, BSG , judgment of May 7, 2009 – Ref.: B 14 AS 14/08 R). With regard to the fitted kitchen, the plaintiff's landlord also confirmed that the apartment could only be rented with the fitted kitchen and that separate termination was not possible.
After all this, the defendant had to reimburse the plaintiffs - at least during the period in question - the full costs of accommodation in the amount in which they were actually incurred. However, the defendant was allowed to deduct the costs for hot water preparation because this took place centrally at the plaintiffs' premises. Contrary to the defendant's opinion, however, the deduction is not justified in the amount of 19.80 euros, but only in the amount of 18.78 euros (5.63 euros each for plaintiffs 1 and 2) and 3.76 euros each for plaintiffs 3) and 4)). With its ruling of September 22, 2009 - Ref.: B 4 AS 8/09 R, the BSG clarified that the share for hot water heating is based on the initial value of the standard rate for household energy in accordance with the EVS 1998 (20.74 euros) and only be increased in accordance with the increase in standard benefits on July 1st, 2007, July 1st, 2008 and July 1st, 2009. The defendant was therefore obliged to pay accommodation and heating costs of 731.22 euros per month (750.00 euros - hot water flat rate of 18.78 euros) during the period in question. However, since he only included 670.16 euros per month in the calculation, he is obliged to pay the difference of 61.06 euros per month for the period December 2007 to May 2008.
The costs decision follows from Section 193 Paragraph 1 Sentence 1 SGG and, within the scope of the plaintiff's defeat rate, also takes into account the challenge to the cancellation and reimbursement decision that was originally asserted and declared resolved, with which the defendant demanded a reimbursement of EUR 243.20 .
Instructions on legal remedies follow.
