DECISION
In the appeal proceedings
xxx,
plaintiff and appellant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
The 11th Senate of the Lower Saxony-Bremen State Social Court decided on May 24, 2012 in Celle through Judges xxx – Chairman –, xxx and xxx:
The decision of the Hildesheim Social Court of August 24, 2011, denying legal aid, is hereby overturned.
The plaintiff is granted legal aid without installment payments for the conduct of the legal proceedings S 36 AS 328/09 (Social Court Hildesheim). Attorney Adam, Göttingen, is appointed to represent her.
Costs for the appeal procedure are not reimbursable.
REASONS
I.
The plaintiff appeals the denial of legal aid for the legal proceedings she brought before the Social Court (SG) Hildesheim under case number S 36 AS 328/09. In these proceedings, the plaintiff seeks a judgment ordering the defendant to grant her higher housing costs (KdU) for the period from April 1 to September 30, 2008, in the total amount of €31.62 (€5.27 per month).
By decision dated March 11, 2008, the defendant granted the plaintiff benefits under Book Two of the German Social Code – Basic Income Support for Jobseekers (SGB II) in the amount of €893.40 per month for the period from April 1 to September 30, 2008. By amended decision dated June 17, 2008, the benefit amount was increased to €899.65 effective July 1, 2008. Of these benefit amounts, €372.03 was consistently allocated to housing costs. This amount was calculated based on a maximum gross rent of €325 plus €47.03 for heating costs, which the defendant had determined to be applicable to a single benefit recipient residing in the city of Göttingen. The costs actually incurred by the plaintiff for the apartment, however, amounted to €390, consisting of €260 rent plus €130 ancillary costs, which included, among other things, the costs of fresh water supply (in 2007: €23.25) and heating (in 2007: €19.80).
After the plaintiff's objection, limited to housing costs, was unsuccessful (objection decision of February 3, 2009), the plaintiff filed a lawsuit on February 19, 2009, seeking higher benefits for accommodation and heating. In support of her claim, she argued that the defendant lacked a "conclusive concept" for determining maximum amounts of reasonable housing costs that complied with the jurisprudence of the Federal Social Court (BSG). According to the values in the table to Section 8 of the Housing Benefit Act (WoGG) in the version applicable in 2008 (hereinafter: old version – aF), increased by a 10% surcharge, she was entitled to reimbursement of a gross rent of €357.50 plus actual heating costs of €19.80, i.e., housing costs of €377.30 instead of the €372.03 granted by the defendant.
In the proceedings before the court of first instance, the defendant argued that, according to the "Expert Opinion on the Determination of Reasonable Accommodation Costs within the Meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) in the District of Göttingen," prepared by F+B Research and Consulting for Housing, Real Estate and the Environment GmbH, Hamburg (hereinafter: F+B GmbH), which he now possesses, the maximum reasonable accommodation costs for single persons in the city of Göttingen amount to €331 plus heating costs. This expert opinion, he asserted, constitutes a coherent concept for determining reasonable accommodation costs in accordance with the case law of the Federal Social Court (BSG).
In the further course of the legal proceedings, the plaintiff addressed in detail the expert opinion of F+B GmbH and the case law of the Federal Social Court (BSG) on the so-called "conclusive concept" (see, for example, the 41-page brief dated September 22, 2009, and the 7-page brief dated April 14, 2010). The defendant presented the expert opinions he had previously commissioned (the Prestel Institute study from 2001 and the GEWOS report from October 2005) and explained the principles of the F+B GmbH expert opinion from March 2009 (see, among others, the defendant's 15-page brief dated August 31, 2009, 15-page brief dated November 19, 2009, and 13-page brief dated March 10, 2010). After the Social Court (SG) pointed out to the parties that the question of the validity and probative value of the expert opinion of the Since F+B GmbH is the subject of several legal proceedings pending before the Lower Saxony-Bremen State Social Court (LSG), the plaintiff and the defendant have jointly requested a stay of proceedings (briefs dated July 13 and 14, 2011).
By decision of August 24, 2011, the Social Court rejected the application for legal aid, which had already been filed on February 19, 2009, due to a lack of prospects of success. The court reasoned that the ancillary costs paid by the plaintiff to her landlord included fresh water costs of €23.25 per month, which, however, did not constitute operating costs of the apartment and therefore did not qualify as housing costs within the meaning of Section 22 of the German Social Code, Book II (SGB II). With actual ancillary costs of approximately €110 and a gross rent of €260, the defendant had, in effect, granted excessive benefits of €372.03 for housing costs.
The plaintiff filed an appeal on September 13, 2011, against the decision served on her on September 8, 2011. She argues that the costs for fresh water supply are part of the housing costs, meaning that the amounts spent on accommodation exceed the benefits provided by the defendant by approximately €18. Based on the table values increased by a 10% surcharge according to Section 8 of the former Housing Benefit Act (WoGG aF), she contends that she is entitled to an additional housing cost allowance of €31.62 for the six-month benefit period in dispute.
II.
The appeal, filed in due form and time, is admissible. Section 127 Paragraph 2 Sentence 2 of the Code of Civil Procedure (ZPO) does not preclude the admissibility of the appeal, as this provision, which establishes a limit on the admissibility of appeals in civil proceedings, is not applicable in social court proceedings according to the established case law of this Senate (see, for example, Senate decisions of November 26, 2009 – L 11 B 2/07 SB, of December 22, 2009 – L 11 AL 70/09 B and August 5, 2011 – L 11 AS 175/11 B).
The appeal is also well-founded. The plaintiff is entitled to legal aid for the legal proceedings she is conducting before the Social Court (SG) under case number S 36 AS 328/09.
Given her economic and personal circumstances, the plaintiff cannot bear the costs of the litigation herself, either in full or in part, or in installments. Contrary to the opinion of the Social Court, the legal action also has the sufficient prospect of success required for the granting of legal aid.
In this sense, the prospects of success of a lawsuit are not sufficient only when, in the necessarily prognostic assessment of the possibilities of success, a later victory already appears more likely than a defeat. Rather, for the granting of legal aid, it suffices if the lawsuit can be coherently substantiated on the basis of a provisionally defensible, debatable legal position and if, in factual terms, there is a good possibility of presenting evidence (Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 10th ed. 2012, § 73a para. 7a). For constitutional reasons alone, an overly lenient examination is required when assessing the prospects of success. Finally, Articles 3(1), 20(3), and 19(4) of the Basic Law (GG) mandate extensive equality between persons with and without means with regard to their respective opportunities to avail themselves of effective legal protection (Federal Constitutional Court, decisions of March 24, 2011 – 1 BvR 2493/10, ZfSH/SGB 2011, 475f, and of April 26, 1988 – 1 BvL 84/86, BVerfGE 78, 104). In particular, the guarantee of legal recourse under Article 19(4) GG against sovereign actions of social security institutions would be violated if the clarification of legally and factually relevant doubts, which can only be expected as a result of judicial proceedings, were shifted into the legal aid approval procedure by means of an overly simplistic prognosis. Legal aid may therefore only be refused on the grounds of insufficient prospects of success if success in the main proceedings is, if not impossible, at least entirely remote (cf. Federal Constitutional Court, decision of April 7, 2000 – 1 BvR 81/00, NJW 2000, 1936 ff on the granting of legal aid in cases of open legal questions).
According to these principles, legal aid could not be denied on the grounds that the costs of the fresh water supply were not considered housing costs but rather costs to be covered by the standard benefit (since January 1, 2011: standard allowance) (see page 3 of the contested decision regarding this argument). Finally, the question of whether the costs of the fresh water supply should be classified as standard benefit (or standard allowance) or as housing costs is disputed. For example, the 7th and 9th Senates of the Higher Social Court of Lower Saxony-Bremen share the legal opinion held by the Social Court (see decisions of March 31, 2006, and July 7, 2011 – L 7 AS 343/05 ER and L 9 AS 411/11 B ER). On the other hand, the Bavarian State Social Court (judgment of June 10, 2010 – L 7 AS 612/09, NZS 2011, 236), the Hessian State Social Court (decision of March 14, 2006 – L 7 SO 4/06 ER) and the Freiburg Social Court (judgment of April 15, 2011 – S 6 AS 3782/09) hold the opposite view. The latter view, which deviates from the case law of the 7th and 9th Senates of the Higher Social Court of Lower Saxony-Bremen cited by the Social Court, is also widely shared in legal literature (see, for example: Berlit in: Münder, LPK-SGB II, 4th ed., § 22 para. 27; Krauß in: Hauck/Noftz, SGB II, 2012 edition, K § 22 para. 34; Piepenstock in juris-PK SGB II, 3rd ed. 2012, § 22 para. 45). This view could also be supported by the fact that the Federal Social Court considers the costs of water supply for owner-occupied homes to be housing costs and therefore not covered by the standard benefit or standard allowance (see judgment of November 24, 2011 – B 14 AS 121/10 R). The clarification of such an open legal question may not be brought forward to the legal aid proceedings due to the principle of equality of access to justice (cf. Federal Constitutional Court, decision of June 20, 2006 – 1 BvR 2673/05).
For the assessment of the plaintiff's prospects of success in pursuing legal action, it is therefore crucial whether a successful claim for monthly housing costs of €377.30 (including costs of fresh water supply) instead of the €372.03 actually paid is entirely improbable.
The defendant bases his motion to dismiss primarily on the maximum values for reasonable housing costs in the city of Göttingen, as determined in the expert opinion prepared by F+B GmbH. However, the findings of this expert opinion cannot be considered in the decision regarding the plaintiff's application for legal aid. The plaintiff submitted her application for legal aid on February 23, 2009, simultaneously submitting the "Declaration of Personal and Financial Circumstances." The application for legal aid was therefore ready for a decision after the deadline set for the defendant to respond, which ran until the end of March 2009. If, however, a court does not decide on legal aid promptly (here: end of March 2009) but only significantly later (here: August 2011), the assessment of the prospects of success should exceptionally be based not on the date of the legal aid decision, but on the date the application is ready for approval, provided that the delay in the legal aid decision is not attributable to the applicant (see Bavarian State Social Court, decision of April 22, 2009 – L 11 AY 2/09 B PKH; decision of the Senate of October 8, 2010 – L 11 SB 137/09 B; similarly: Leitherer in Meyer-Ladewig, SGG, 10th ed. 2012, § 73a para. 7d with extensive further references). At the time the legal aid decision was ready, the expert opinion commissioned by the defendant and prepared by F+B GmbH in March 2009 had not yet been introduced into the legal proceedings. This only occurred with the defendant's written submission of August 31, 2009 (received by the Social Court on September 7, 2009). There is also no evidence whatsoever that the expert opinion, prepared for the defendant in March 2009, was already known to the Social Court of Hildesheim in March 2009.
Sufficient prospects of success for the legal proceedings cannot be denied by referring to the GEWOS expert opinion from 2005 or the case law of the Lower Saxony-Bremen State Social Court cited by the defendant (see the defendant's submission of August 31, 2009, regarding this point). While the 8th Senate, in its decision of June 19, 2007 (L 8 AS 161/07 ER), cited by the defendant, did indeed rely on the GEWOS expert opinion in preliminary injunction proceedings, it did so in express deviation from the standards of review applicable to main proceedings according to the Federal Social Court's case law (see p. 9, paragraph 1 of the decision). Furthermore, the 8th Senate had already ruled at that time that the aspect highlighted in the GEWOS study regarding the availability of suitable housing for benefit recipients willing to relocate might require further clarification in the main proceedings, in light of the jurisprudence of the Federal Social Court (page 10 of the decision). However, insofar as further investigations are necessary in the main proceedings, legal aid cannot be denied on the grounds of lack of prospects of success.
Likewise, the decision of the 9th Senate of the Lower Saxony-Bremen State Social Court of September 20, 2006 (L 9 AS 401/06 ER), cited by the defendant, cannot be used in the present proceedings to justify a denial of legal aid. In that decision, which predates the fundamental rulings of the Federal Social Court on the so-called "conclusive concept," the 9th Senate based its decision on the table values for Section 8 of the former Housing Benefit Act (WoGG aF) and further stated that, based on, among other things, the GEWOS expert opinion, no further increases to the table values were warranted (p. 7 of the decision). According to the now established case law of the Federal Social Court (BSG), the standard rates under the Housing Benefit Act (WoGG) are not the primary criterion for determining reasonable housing costs within the meaning of Section 22 of the German Social Code, Book II (SGB II). Rather, the basic income support provider must develop a so-called "conclusive concept" based on the specific local conditions of the housing market (see, for example, BSG, judgment of December 20, 2011 – B 4 AS 19/11 R, paragraphs 20 et seq., with extensive references to the case law of the BSG). Only if such a conclusive concept cannot (or can no longer) be developed may the standard rates under the WoGG be used as an exception, and even then, these rates must be increased by a supplement. This surcharge is justified by the fact that, in the absence of a conclusive concept, it cannot be determined with certainty what the appropriate reference rent actually was (cf., for example, Federal Social Court [BSG], judgment of December 17, 2009 – B 4 AS 50/09 R, SozR 4-4200 § 22 No. 29). With regard to the necessity of a surcharge to the table values pursuant to Section 8 of the former version of the Administrative Procedure Act (VVoGG aF), the case law of the 9th Senate of the Lower Saxony-Bremen State Social Court (LSG) in preliminary legal protection proceedings thus does not meet the standards applicable to main proceedings.
After all this, the defendant did not have a "conclusive concept" within the meaning of the BSG case law, at least at the time when the decision on legal aid was ready in March 2009, so that a success for the plaintiff was not entirely out of the question.
The Senate further notes that it is now apparent that even the defendant no longer adheres to his original position regarding the maximum amount of reasonable housing costs. While in the contested decisions he still assumed a maximum amount of €325 per month for reasonable gross rent (excluding utilities) for single persons in the city of Göttingen (based, among other things, on the GEWOS expert opinion), he now considers €331 per month to be the correct amount (p. 2 of the defendant's brief dated August 31, 2009; see also p. 29 of the expert opinion by F+B GmbH). This difference of €6 per month already exceeds the higher housing cost benefits of €5.27 per month requested by the plaintiff. Furthermore, it remains unclear up to what amount the defendant is prepared to cover heating costs. For the period at issue in these proceedings, the defendant – evidently in accordance with established administrative practice – did not cover the heating costs based on actual consumption, but rather calculated them according to a flat-rate system (€0.95 per square meter of reasonable living space; see, for example, the memorandum dated September 18, 2008, p. 332 of the defendant's administrative file, for the subsequent benefit period). If the defendant were to adhere to its previous administrative practice for the period in dispute, it would have to issue a partial acknowledgment of €378.03 (reasonable gross rent excluding utilities of €331 according to the expert opinion of F+B GmbH, plus flat-rate heating costs of €47.03). This amount would also exceed the amount of €377.30 per month claimed by the plaintiff.
The granting of legal aid is not precluded by the very low amount in dispute of €31.62 (€5.27 per month). Ultimately, it is inadmissible to reduce the question of whether representation by a lawyer appears necessary to an exclusive assessment of the relationship between the amount in dispute and the cost risk (see in detail: Federal Constitutional Court (BVerfG), decision of March 24, 2011 - 1 BvR 1737/10, para. 17).
The decision on costs is based on §§ 73a SGG in conjunction with 127 para. 4 ZPO.
This decision is final.
