Non-official guiding principle:
The so-called F+B report from March 2009 does not represent a coherent concept for Göttingen and the surrounding area for determining appropriateness limits for accommodation costs in the area of subsistence law. Instead, the appropriateness limits are based on the values in § 12 WoGG to be determined with a surcharge of 10%.
Full text:
In the name of the people
Verdict
In the legal dispute
1. xxx,
2. xxx,
3. xxx,
plaintiff,
Legal representative:
for 1-3: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant,
The Hildesheim Social Court - 23rd Chamber - recognized the following at the oral hearing on December 9, 2011 by the chairwoman, judge xxx at the Social Court xxx and the honorary judges xxx and xxx:
1. The defendant is sentenced to the plaintiffs for the period from April 1, 2010 to September 30, 2010, amending the decision of April 12, 2010 in the form of the change decision of July 12, 2010 in the form of the objection decision of September 6, 2010 2. and 3. to grant further monthly SGB II benefits in the amount of €30 each and to grant the plaintiffs in 1., 2. and 3. a total of further monthly benefits towards the costs of accommodation and heating in the amount of 65, – € to be granted.
2. The defendant must bear the plaintiff's necessary out-of-court costs.
3. The appeal is allowed because of the fundamental importance of the case.
Facts of the case
The plaintiffs object to the failure to take into account the insurance flat rate and the amount of the costs for accommodation and heating taken into account in the period from April 1, 2010 to September 30, 2010.
The plaintiffs are currently receiving benefits under the Second Social Security Code (SGB II).
With a decision dated April 12, 2010, the xxx granted the plaintiffs benefits according to SGB II for the period from April 1, 2010 to September 30, 2010. For the costs of accommodation and heating, the xxx took into account a gross basic rent of €445 for the plaintiffs in total as well as heating costs totaling €56, less a hot water flat rate totaling €16.83. In terms of income, the xxx took into account child benefit of €186 per month for plaintiffs 2 and 3.
According to the rental agreement dated August 17, 2006, the plaintiffs had a gross rent of €510 during the period in question (BI. 6 Administrative file, VA) and according to the invoice from E.ON Vertriebs GmbH dated October 18, 2009 (contained in the unpaginated part the VA) heating costs of €56 must be paid.
With an amendment decision of July 12, 2010, the xxx took into account income from child benefit of €184 per month for the plaintiffs 2 and 3 for the period in dispute.
On April 15, 2010, the plaintiffs, represented by lawyers, filed an objection to the decision of April 12, 2010. For xxx, district xxx, there is no rent index and no valid rental database relevant to basic security, which is why the values in the table according to Section 12 of the Housing Benefit Act are to be used to determine the appropriateness limit for the costs of the accommodation.
With an objection notice dated September 6, 2010, the defendant rejected the objection. The plaintiffs were correctly granted accommodation costs of €445 per month, taking into account the additional living space required for single parents. This also corresponds to a report that the defendant had prepared by the company F+B GmbH. The data on which the report is based were determined in several steps over the course of 2008.
The plaintiffs filed a lawsuit against this before the Hildesheim Social Court on September 22, 2010.
The defendant has not provided any evidence that the values apparently used here in the right-hand column of the old housing benefit table in accordance with Section 8 of the Housing Benefit Act represent the appropriate limit for xxx. The defendant has not yet met his burden of presentation and proof with regard to the reasonable costs of the accommodation. The F+B report is not a basic security survey with regard to the residential structure in Göttingen.
In a written statement dated November 16, 2010, the plaintiff's legal representative submitted an “Opinion on the report to determine appropriate accommodation costs within the meaning of Section 22 Paragraph 1 SGB II in the Göttingen district of the company F+B from Hamburg from March 2009”. The report is not based on a coherent concept. Neither with regard to the data collection nor the extrapolation of the results nor the conclusions drawn during the evaluation. For the details of the statement, reference is made to page 92 ff. of the court file (GA).
The plaintiffs request
to sentence the defendant, amending the defendant's decision of April 12, 2010 in the form of the change decision of July 12, 2010 in the form of the objection decision of September 6, 2010, to award the plaintiffs a total of additional monthly SGB II benefits in the amount of €125 to grant.
The defendant requests
dismiss the lawsuit and allow the appeal.
To justify this, the defendant refers to the reasons for the objection notice and refers to the F+B report on determining appropriate accommodation costs in the Göttingen district, which states that an appropriate limit for the gross basic rent for the municipality xxx for a four-person household is 446.00. € determined. For the details of the report, reference is made to page 42 ff. GA.
In addition to the report, the defendant stated:
It was decided to draw up the coherent concept based on the entire housing stock and then to set a cap to determine the adequacy limit. Apartments of simple, medium and high standard were recorded. In accordance with the case law of the Federal Social Court (BSG), the subject of the observation was clearly defined. The assessment of what is appropriate was not already made when selecting the housing stock to be examined. The data included is also representative. More than the 10% of the rental housing stock to be considered regionally required by the BSG was included in the evaluation. The database from 1987 was used as a basis because there was no more recent data. F+B GmbH was guided by the recognized principles for creating qualified rent indexes. There is also no objection to the choice of the 33% quantile as the capping limit. It should also be pointed out that the court can only make a decision on the burden of proof after exhausting all investigative options. In this respect, the BSG should also be understood to mean that there must be cooperation between the court and the investigating authority. For the details of the defendant's submission, reference is made to the written statement of November 14, 2011, page 121 ff. GA, as well as to the minutes of the oral hearing of December 9, 2011.
In the oral hearing on December 9, 2011, the defendant requested that the court not follow the defendant's submission
– to prove that the F+B-GmbH report is based on a representatively large database, obtaining an expert report
- to prove that the F+B-GmbH report is based on a representative database without taking into account apartments in one- and two-family houses as well as apartments with a total living space of up to 20 sqm, an expert report must only be obtained .
- Obtaining an expert report is required to prove that the F+B-GmbH report has sufficiently determined and evaluated the net rents and operating costs according to scientific standards.
- Obtaining an expert report is required to prove that the recognized mathematical and statistical principles were adhered to when preparing the F+B-GmbH report.
- to prove that the report from F+B-GmbH correctly reflects the housing stock and rents in the Göttingen district area, xxx, to be downloaded from F+B-GmbH, Adenauerallee 28, 20097 Hamburg.
– to prove that the data determined by F+B-GmbH as the basis for the report to determine the appropriate accommodation costs is also meaningful for the period in question, the involvement of an expert.
For further details of the facts and the status of the dispute, reference is made to the court file as well as the defendant's administrative files on these proceedings and the defendant's administrative files, drawn from the 24th, 45th and 55th chambers of the Hildesheim Social Court, which were submitted to the court and have become the basis for decision-making.
Reasons for the decision:
The admissible action is well founded.
A.
The decision of April 12, 2010 in the form of the change decision of July 12, 2010 in the form of the objection decision of September 6, 2010 is unlawful and violates the plaintiffs' rights; Section 54 Paragraph 2 of the Social Court Act (SGG).
According to Sections 7, 19, 20, 22 SGB II, the plaintiffs are entitled to higher benefits during the period in question. You are entitled to a total of €549.17 for accommodation and heating costs; minus the already approved costs of €484.17, the plaintiffs are therefore entitled to a further €65 per month, of which plaintiff 1 and plaintiff 2 are each entitled to €21.67 and plaintiff 3 is entitled to €21 .66 € The plaintiffs 2 and 3 are entitled to further benefits to secure their livelihood in the amount of € 30.00 each, because the defendant incorrectly did not deduct the insurance flat rate from the income from child benefit of the adult plaintiffs.
In detail:
The plaintiffs 2 and 3 are entitled to further benefits to secure their living expenses in the amount of €30 each per month.
According to § 11 SGB II in conjunction with § 6 of the Unemployment Benefit II Ordinance (as amended on July 23, 2009), the income from child benefit in the amount of € 184 of the two adult plaintiffs 2 and 3 living in a community of needs with the plaintiff 1 is deducted . a flat rate of €30 per month is to be deducted for insurance, with the result that only €154 of the income can be taken into account. The defendant failed to do this in the decision at issue.
The plaintiffs are to be granted a total of a further €65 per month to cover the costs of accommodation and heating in accordance with Section 22 SGB II.
1.
The defendant correctly approved monthly heating costs of €56 for the plaintiffs, less a flat rate for hot water preparation totaling €16.83. This corresponds to the plaintiffs' actual costs for the gas supply as shown in the advance notice from E.ON Vertriebs GmbH dated October 18, 2009.
2.
The only thing in dispute is the amount of the net rent to be approved plus the cold operating costs, so-called gross rent.
KdU are paid in the amount of the actual expenses, provided they are appropriate; see Section 22 Paragraph 1 Sentence 1 SGB II. If the expenses for accommodation exceed the amount appropriate to the specifics of the individual case, they must be taken into account as the needs of the person in need of help as long as it is not possible or reasonable for the person in need of help to do so a change of residence, by renting out or in some other way to reduce expenses, but usually for a maximum of six months; § 22 para. 1 sentence 2 SGB II. The test of appropriateness limits the amount of reimbursable costs (cf. BSG, judgment of September 22, 2009, ref. B 4 AS 18/09 R). “Appropriateness” is an indefinite legal term that is subject to full judicial control (cf. BSG, judgment of November 7, 2006, Ref. B 7b AS 10/06 R). According to the established case law of the BSG, the determination of appropriateness must be carried out in several stages. First, the abstractly appropriate apartment size and the relevant comparison room must be determined. The next step is to determine how much has to be spent on a simple standard apartment on the housing market in the comparison area. The aim of the investigation is the price per square meter for simple standard apartments, which is to be multiplied by the appropriate number of square meters in accordance with the product theory. The result is the regionally appropriate rent (cf. BSG, judgment of September 22, 2009, ref. 18/09 R).
a)
The municipality xxx informed the plaintiffs in a leaflet accompanying the initial decision of August 8, 2006 about what they considered to be unreasonable accommodation costs (BI. 21 VA), so that in the period in dispute here the maximum six-month transition period for the actual costs to be taken into account is already in place had expired and the actual accommodation costs were not to be approved for this reason.
b)
The defendant correctly based the three plaintiffs on the appropriate living space limit for a four-person household and, for the first plaintiff, an additional living space requirement for single parents in accordance with the directive on social housing support in Lower Saxony (housing support regulations -WFB-; cf. Point B.11. Adequate living space) is taken into account. This is not contradicted by the fact that the plaintiffs 2 and 3 were already of age during the period in question at 21 and 19 years old respectively (22 and 20 according to their respective birthdays). Single parenting does not necessarily end when the child comes of age, as is shown, for example, by the fact that a child up to the age of 21 can be considered for tax purposes (see Section 24 b and Section 32 of the Income Tax Act). The fact that the additional need for single parents in accordance with Section 21 SGB II is expressly based on the child's underage does not change this assessment, since the provisions of SGB II on the one hand and the housing support guidelines on the other hand serve different purposes. The Chamber came to the conclusion that the characteristic of single parenthood applies to a child up to the age of 21, which applies to the third plaintiff for the entire period of the dispute.
c)
Contrary to the defendant's opinion, he did not succeed in explaining to the court in a comprehensible manner how high the regionally abstract apartment rent is.
aa)
The Chamber initially has no doubts about the creation of a comparison area for municipality xxx.
bb)
The defendant correctly assumed an appropriate living space limit of between 75.01 and 85.00 square meters for a four-person household. This corresponds to the abstractly appropriate apartment size of the directive on social housing support in Lower Saxony applicable according to the case law of the BSG (housing support regulations -WFB-; see point B.11. Adequate living spaces).
cc)
However, the determination of what the defendant believes to be an appropriate interest rate per square meter for the appropriate standard of living for the apartment size class “75.01 to 85.00 sqm” is not based on a coherent concept. The F+B report therefore does not confirm that the costs taken into account by the defendant are the appropriate costs within the meaning of Section 22 SGB II. This report is afflicted with fundamental deficiencies that cannot be remedied in the sense of a “repair” with the help of the court.
According to the case law of the BSG, the determination of the regional adequacy limit must be based on a verifiable, coherent concept that offers sufficient guarantee that the current conditions of the local rental housing market are reflected (BSG, judgment of June 18, 2008, B 14/7b AS 44/06 R). The limitation of the actual accommodation costs to an “appropriate level” must be sufficiently understandable. The BSG defines a coherent concept as “a planned approach by the basic security provider in the sense of the systematic determination and assessment of general, albeit location- and time-related, facts for all applications in the relevant comparison area and not just a selective approach on a case-by-case basis” (BSG, judgment of September 22, 2009, Ref. B 4 AS 18/09 R, Rz. 19).
The BSG has set the following requirements for the minimum requirements for a coherent concept (ibid.):
= The data collection may only take place in the precisely defined area and must take place over the entire comparison area (no ghetto formation),
= a comprehensible definition of the object of observation is required, e.g. what type of apartments - differentiation according to the standard of the apartments, gross and net rent
, differentiation according to apartment size, = information about the observation period,
= determination of the method of data collection (sources of knowledge, e.g. rent index),
= representativeness of the scope of the data collected,
= validity of the data collection,
= compliance with recognized mathematical-statistical principles of data evaluation and
= Information about the conclusions drawn (e.g. upper clamping value or capping limit).
The data collected by F+B-GmbH in 2008 does not meet the minimum requirements for a coherent concept specified by the BSG in essential points.
The 23rd Chamber sticks to its decision in the proceedings on file number S 23 AS 1062/06 after another detailed examination and refers to it in full. The judgment states:
“The Chamber has come to the conclusion that the F+B report does not represent a coherent concept because it is not based on a comprehensible definition of the subject of the observation, the manner in which the data is collected is objectionable, and the scope of the data is not representative collected data is given and the capping limit (33% quantile) cannot be understood.
The Chamber relies largely on the fact that
– the entire housing market was not included in the data collection,
– the previous definition of the simple housing standard was therefore wrongly omitted,
– the rental housing stock from 1987 was used as a basis and then estimated for the year 2006 and
– the 33% Quantile capping limit cannot be understood.
As already stated, the BSG states:
“A comprehensible definition of the object of observation is required, e.g. what type of apartments – differentiation according to the standard of the apartments, gross and net rent (comparability), differentiation according to apartment size.”
According to the requirements of the BSG, both apartments from the entire housing stock, i.e. of simple, medium and high standards, as well as apartments of only simple standards can be included in the observation. For example, it is also permissible to include apartments with a rent that is limited in amount. However, living space that cannot provide reliable information, such as: B. Dormitories (judgment of September 22, 2009, Ref. B 4 AS 18/09 R).
The Chamber doubts that recording the entire housing market makes differentiation based on, among other things, location and features unnecessary. Unlike the defendant, she does not derive this dispensability from the BSG ruling of September 22, 2009. The lack of differentiation leads to subsequent problems when determining the cap limit (more on this below). However, this can be left aside since the Chamber does not accept the defendant's assumption that the F+B report covered the entire housing market. In the Chamber's opinion, the entire housing market was not recorded because data adjustments were made that are not entirely comprehensible.
Apartments of up to 20 square meters were excluded from the existing rent survey because F+B-GmbH assumes that these are residential apartments. In the Chamber's opinion, this would have required an examination, which could not have been carried out due to the anonymous survey of the tenants and was therefore not carried out (see p. 8 of the report). The argument that these do not necessarily have to be dormitory apartments is provided by the report itself, saying on page 8: “An address comparison with some information obtained as part of the asking rent survey partially confirmed this assumption.” Significant for the justification of these apartments to be removed from the data set without causing a shift to the detriment of the aid recipients is the scope of “partial”, which, however, remains open. In the Chamber's opinion, it is also plausible that these are, for example, apartments from housing programs for socially disadvantaged citizens. Removing these apartments is at the expense of the recipients of assistance, as these apartments generally have a low rent and are therefore interesting for single people with low incomes, but the price per square meter, which ultimately has to be determined, is comparatively high. If, on the other hand, apartments with a fixed maximum rent, i.e. publicly subsidized housing, remain in the data set (see Figure 2.3, p. 9 of the report), the chamber believes that this leads to a distortion to the detriment of the aid recipients. The defendant did not dispel these concerns in the written statement dated February 12, 2010 (see page 154 GA). It is not clear what “extensive research” F+B-GmbH carried out before excluding this data from the evaluation and also contradicts the statements in the report, according to which it is only “assumed” that these are dormitory apartments. The fact that this is only about 1% of the gross sample does not lead to a different assessment, as this does not cover a group of which it is unclear whether it was wrongly completely ignored.
The defendant's reference to the stricter procedures when creating qualified rent indexes in larger cities is irrelevant. According to Section 558 Paragraph 2 Sentence 1 of the German Civil Code (BGB), when creating rent indexes, a differentiation must be made according to living space of comparable type, size, furnishings, condition and location. F+B-GmbH does not currently choose this approach (p. 16 of the report). In the Chamber's opinion, the definition of the simple standard only in the result (here via the 33% quantile of the square meter prices) requires that the data sets are not cleaned up in the same way as for the creation of qualified rent indexes. The more restrictive handling of rent indexes is justified solely because of the careful differentiation. It should also be noted that F+B GmbH does not consistently adhere to these requirements for creating the rent index. In contrast to the approach of the F+B report, apartments with a subsidy commitment are not included in the creation of qualified rent indexes. In the Chamber's opinion, incompatible paths are being taken to the detriment of the aid recipients.
Nothing different emerges from the statements of the BSG (judgment of September 22, 2009, Ref. B 4 AS 18/09 R, para. 22). The chamber does not criticize the fact that apartments with funding approval remained in the data set, which is possible under the BSG, but rather that very small apartments were assumed to be living space in dormitories without further checking and were removed from the data set.
In addition, apartments in one- and two-family houses were not taken into account from the outset, again with the - here not significant - reference to the procedure for creating qualified rent indexes (see p. 4 of the report).
Another difference to the creation of rent tables is the lack of information about when the existing rents were agreed. The Chamber considers this information to be indispensable, as the – current – adequacy limit was determined on the basis of the existing rents (see p. 29 of the report).
In the Chamber's opinion, it would also have been essential to ensure that the data sets were mixed with rental apartments from different residential locations. Only then could we speak of capturing the entire housing market. Despite low standards, apartments in so-called desirable residential areas can be significantly more expensive than well-equipped apartments in less sought-after areas.
Since the entire housing market was not covered, it is not enough to define the simple housing standard based on the price per square meter, which was determined at the so-called 33% quantile (see page 19 of the report).
In the Chamber's opinion, the lack of a definition of the simple standard leads to subsequent problems in determining the average cold operating costs. The exclusion of cold operating costs from the existing rent survey with values higher than 2.50 €/sqm from the data sets (page 10 of the report) only does not lead to data distortion to the detriment of the aid recipients if they are not cold operating costs associated with apartments simple standards. F+B GmbH was unable to verify this because the apartments remaining in the data sets could not be assigned to any standard.
The Chamber is also not convinced that the cold operating costs for the quoted rents were correctly determined. The approach of not taking into account the cold operating costs of the offered rents listed in advertisements (see p. 15 of the report) and instead using the “average cold operating costs per square meter of living space obtained from the evaluation of the existing rent survey” (p. 30 of the report), prevents a check of the determined existing rent. The available offer is checked on the basis of partial inventory data. The mere fact that the cold operating costs in the advertisements often could not be separated from the heating costs (see page 15 of the report) does not justify this approach. In any case, a plausibility check is necessary to ensure that there is no distortion, because the assumption initially suggests that asking rents reflect the more current picture of the cold operating costs required on the market. Ultimately, the asking rents are the conditions under which those in need of help enter the housing market. Simply assuming that the cold operating costs of the existing rents are current (“it can be assumed” cf. p. 30 of the report) is again not enough. The Chamber does not want to rule out the possibility that the asking rent (gross cold) determined in this way is correct, but this is a coincidental and not comprehensible result.
The chamber considers the “representativeness of the scope of the data collected” required by the BSG to be a supporting pillar of a coherent concept, which is also not guaranteed in the F+B report. The mere fact that the rental housing stock from the building and apartment census of 1987, i.e. before the borders to the current new federal states were opened, was used as the basis for the data collection and then only an estimate of the current rental housing stock for the year 2006 did not allow the Chamber to conclude that the F+B report represents a coherent concept. In any case, it cannot be determined whether there is a representative sample with a proportion of collected rental data of 32.3% (see page 4 of the report).
In the Chamber's opinion, the F+B report is not a coherent concept because the capping limit that was set at the 33% quantile cannot be understood. The underlying assumption that the lower third is separated from the remaining two thirds of the housing market and that apartments are accurately represented according to simple standards presupposes that the entire housing market is actually covered, which - as explained above - the Chamber does not share. It also assumes that there is an even mix of data sets with simple, medium and high-standard apartments. No conclusions can be drawn about this because the simple standard has not been defined. Depending on the respective – unidentifiable – shares, the price per square meter determined in this way shifts. The middle path of rent distribution in the rent index compilations of the cities of Kiel (16.6% quantile) and Berlin (50% quantile) is not justified because the rent index compilations are differentiated according to location, condition, furnishings, etc . In addition, it remains unclear how conclusions can be drawn about basic housing standards in the city of Göttingen. The defendant's justification in the letter dated February 12, 2010 (page 160 GA), according to which the 33% quantile represents households in lower income brackets (20%) as well as households receiving basic security (10%) plus a security surcharge, is also not valid convince. In the Chamber's opinion, all that remains is the assumption that this capping limit accurately reflects the apartments of simple standards.
Contrary to the defendant's opinion, the Chamber is unable to recognize to what extent the previous determination of the simple standard represents an inadmissible restriction on those receiving assistance when looking for housing. The aim of the determination remains the regionally appropriate rent expressed in a total amount that enables the aid recipient to realize his or her preferences. According to BSG case law, it is not the adequacy of the individual elements that matters, but rather the overall burden to be borne. This does not change the fact that this total amount can only be determined using simple standards for housing expenses.
Contrary to the defendant's opinion, the court has no further obligation to investigate.
The Chamber does not see any further possibilities for investigation, particularly due to the passage of time.
Contrary to the defendant's opinion, the court is not in a position to carry out further investigations on the basis of the F+B report.
The BSG explains the court's obligation to investigate:
“This obligation to investigate is not simply transferred to the social court if the concept of the basic security provider proves to be unsustainable (conclusive) or if the necessary data was not collected or was not collected properly in the case of a concept that was in itself coherent.” (Judgment of September 22nd 2009, B 4 AS 18/09 R, paragraph 26)
“If the municipal authority's concept for determining the appropriate price per square meter turns out to be inconclusive, as in the present case, this may ultimately mean that the factual court may also use the actual price per square meter as appropriate without further examination, as the LSG does in the present case trap did. However, in such a case, the costs of accommodation are not to be covered in full, but only up to the amount of the table values, which are moderately increased by a surcharge, in accordance with Section 8 of the Housing Benefit Act (WoGG aF). However, the court can only draw this conclusion from the inability to provide a conclusive concept if it has previously attempted (unsuccessfully) to improve the administration's inadequate findings with its support (see judgment of the adjudicating Senate of July 2, 2009, B 14 AS 33/08 R). Accordingly, the LSG will first have to carry out further investigations into whether and to what extent the accommodation expenses paid by the plaintiffs during the period in question were appropriate. According to the logic of the distribution of responsibility for the creation of the coherent concept, it will first take up the defendant's investigations and, if necessary, be able to correct their conceptual weaknesses. For example, if available, it will also be possible to rely on private rental databases that do not meet the requirements of Sections 558c and 558d of the German Civil Code (BGB), but are capable of at least providing approximate information about the appropriateness (cf. BSG, judgment of June 18th 2008 – B 14/7b AS 44/06 R, FEVS 60, 145, 149, RdNr 16). If necessary, you can also hire an expert yourself. Only if these investigations do not lead to any further success can the defendant be ordered to bear the actual expenses of the plaintiff, as the LSG rightly assumed in principle.” (Judgment of August 20, 2009, B 14 AS 65/08 R, Rz. 21)
An improvement, as the 14th Senate of the BSG puts it, is not possible here. In the F+B report, the Chamber considers the basic principles of rental data collection, such as the incomprehensible data cleaning, to be incorrect. In order to eliminate the weaknesses mentioned above, a new survey based on a new concept would be necessary. At this point, the Chamber would also like to point out once again that, as part of the tenant survey, F+B GmbH was unable to carry out any follow-up surveys and/or control surveys - which were obviously deemed necessary - due to the anonymous implementation (see p. 8 of the report, Point 2.2). “
dd)
In the present case, nothing else emerges from the defendant's additional submission. Compared to the decision just quoted, the Chamber makes it clear that it considers the previous definition of the housing standard to be indispensable. Only then can the defendant determine the proportion of simple, medium and high standard apartments that have been recorded. Only when uniform mixing can be demonstrated will the capping limit at the 33% quantile be justified. Given the approach taken by F+B-GmbH, it cannot be ruled out that predominantly apartments of simple standards were included in the evaluation and thus a shift to the disadvantage of the aid recipients. In any case, the result remains highly random.
ee)
The chamber came to the conclusion that it did not have to investigate the defendant's requests for evidence. Because there was no longer any need for further clarification of facts relevant to the decision.
It can be left open as to whether the defendant's applications for evidence are actually aimed at identifying facts that are available for evidence or whether they are not rather evaluations to be made by the chamber. The latter certainly applies to the suggestion that Mr. xxx be heard to prove that the F+B report correctly reflects the housing stock and rents in the defendant's area. The facts for this are provided by the written report and the defendant's additional presentation; the chamber draws its conclusions.
But even assuming that an expert report comes to the conclusion that
– that the database is representative,
– that the exclusion of apartments in one- and two-family houses and apartments with an apartment size of up to 20 square meters is harmless to representativeness,
– that the net rents and operating costs meet scientific standards have been determined,
– that mathematical and statistical principles have been adhered to,
– and the data determined is also meaningful for the period in question here,
the board comes to no other conclusion. The mere lack of identification of the proportions of simple, medium and high standard apartments leads to a random result and therefore not suitable for limiting accommodation costs in accordance with Section 22 SGB II.
3.
The plaintiffs' expenses for KdU must be borne in the amount actually incurred.
The court applies the case law of the LSG Lower Saxony-Bremen, according to which, in the absence of other information, the right-hand column of the table on Section 12 of the Housing Benefit Act must be used as an exception. The court, together with the LSG Lower Saxony-Bremen, considers it appropriate to grant a surcharge of 10% even with the new housing benefit table due to the flat rate (more recently: decision of April 6, 2011, Ref.: L 7 AS 222/11 B ER mwN). Even according to the case law of the BSG, if there is no possibility of obtaining information, the actual expenses for accommodation are not to be covered indefinitely, “but only up to the amount of the table values in Section 8 WoGG, which are moderately increased by a surcharge” (judgment of August 20, 2009, B 14 AS 65/08 R, paragraph 21; judgment of September 22, 2009, case number B 4 AS 18/09 R, paragraph 27). According to the BSG ruling of December 17, 2009, B AS 50/09 R, this should also apply to the values according to Section 12 WoGG (see paragraph 27).
For four-person households in municipality xxx (rent level 1), the maximum values that can be taken over are €539 (€490 plus a 10 percent surcharge). The plaintiffs had expenses of €510.00 for their gross rent, which is why the actual costs of the accommodation must be borne. The defendant has already approved €445.00, so that the plaintiffs are still entitled to cover additional accommodation costs totaling €65.00.
In principle, the accommodation costs are to be divided head-on without taking age and intensity of use into account (BSG, judgment of June 25, 2008, Ref. B 11b AS 45/06 R), which is why no other consideration is justified even in the case of a need for additional living space for single parents.
Specifically, plaintiff 1 is entitled to a further €21.67, plaintiff 2 is also entitled to a further €21.67 and plaintiff 3 is entitled to a further €21.66 towards the costs of accommodation and heating.
B.
The cost decision is based on Section 193 SGG.
C.
The appeal is permitted in accordance with Section 144 Paragraph 2 No. 1 SGG due to the fundamental importance of the case.
Instructions on legal remedies follow.
