DECISION
In the complaint procedure
xxx,
plaintiff and complainant,
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 by judges xxx - chairman -, xxx and xxx:
The decision of the Hildesheim Social Court of August 24, 2011 denying legal aid is repealed.
The plaintiff is granted legal aid without payment in installments for the implementation of the lawsuit S 36 AS 328/09 (Hildesheim Social Court). Attorney Adam, Göttingen, will be assigned to her.
Costs for the complaint procedure are not reimbursed.
REASONS
I.
The plaintiff's complaint is against the denial of legal aid (PKH) for the lawsuit S 36 AS 328/09 she brought before the Social Court (SG) Hildesheim. In this lawsuit, the plaintiff requests that the defendant be ordered to pay higher accommodation costs (KdU) for the period from April 1st to September 30th, 2008 in the amount of a total of €31.62 (= €5.27 per month).
In a decision dated March 11, 2008, the defendant granted the plaintiff benefits in accordance with the Second Book of the Social Code - Basic Security for Job Seekers (SGB II) for the period from April 1 to September 30, 2008 in the amount of €893.40 per month. With an amendment dated June 17, 2008, the benefit amount was increased to €899.65 with effect from July 1, 2008. Of these benefit amounts, €372.03 was allocated to the KdU. This amount resulted from a maximum gross rent of €325 plus €47.03 in heating costs assumed by the defendant for a single recipient living in the city of Göttingen. The costs actually incurred by the plaintiff for the apartment, on the other hand, amounted to €390, consisting of €260 rent plus €130 additional costs, which included, among other things, the costs of fresh water supply (in 2007: €23.25) and heating (in 2007: €19.80) were included.
After the plaintiff's objection, which was limited to the KdU, was unsuccessful (objection decision dated February 3, 2009), the plaintiff filed a lawsuit on February 19, 2009 for the granting of higher benefits for accommodation and heating. As justification, she stated that the defendant did not have a so-called “conclusive concept” for determining maximum amounts of appropriate KdU that corresponds to the case law of the Federal Social Court (BSG). According to the values in the table for Section 8 of the Housing Benefit Act (WoGG) in the version applicable in 2008 (hereinafter: old version - old version), which are to be increased by a surcharge of 10%, she is entitled to a gross rent of €357.50 plus. actual heating costs amounting to €19.80, ie on KdU amounting to €377.30 instead of the €372.03 granted by the defendant.
The defendant stated in the first instance proceedings that according to the “Expert report on determining appropriate accommodation costs within the meaning of Section 22 Paragraph 1 SGB II in the Göttingen district” from F+B Research and Consulting for Living, Real Estate and Environment GmbH, Hamburg ( hereinafter: F+B GmbH), the maximum value of the appropriate KdU for single people in the city of Göttingen is €331 plus heating costs. This report represents a coherent concept for determining the appropriate KdU within the meaning of BSG case law.
In the further course of the lawsuit, the plaintiff dealt in detail with the report of F+B GmbH and the case law of the BSG on the so-called "conclusive concept" (see for example: 41-page written statement from September 22, 2009 and 7-page letter dated April 14, 2010). The defendant has presented the reports he had already commissioned in the past (investigation by the Prestel Institute in 2001 and GEWOS report from October 2005) and explained the principles of the report by F+B GmbH from March 2009 (see, among others, 15 -page written statement by the defendant dated August 31, 2009, 15-page written statement dated November 19, 2009 and 13-page written statement dated March 10, 2010). After the SG pointed out to those involved that the question of the validity and meaningfulness of the F+B GmbH report was the subject of several appeal proceedings pending before the Lower Saxony-Bremen State Social Court (LSG), the plaintiff and the defendant unanimously applied for a suspension of the lawsuit (pleadings from July 13th and 14th, 2011).
With a decision of August 24, 2011, the SG rejected the PKH application submitted on February 19, 2009 due to the lack of prospects of success in legal prosecution. As justification, it stated that the additional costs paid by the plaintiff to her landlord also included fresh water costs amounting to €23.25 per month, but these were not operating costs for the apartment and therefore not KdU within the meaning of Section 22 SGB II acts. With actual additional costs amounting to approximately €110 and a gross rent of €260, the defendant actually granted excessive benefits with a benefit amount for the KdU amounting to €372.03.
Her complaint lodged on September 13, 2011 is directed against the decision served on the plaintiff on September 8, 2011. She considers the costs for the fresh water supply to be part of the KdU, so that the amounts spent on accommodation would be approximately €18 more than the services provided by the defendant. Based on the table values increased by a surcharge of 10% in accordance with Section 8 WoGG old version, this would result in a claim for further KdU in the amount of €31.62 for the disputed six-month approval period.
II.
The complaint submitted in due form and within the deadline is admissible. The admissibility of the complaint is not contradicted by Section 127 Paragraph 2 Sentence 2 of the Code of Civil Procedure (ZPO), since this provision, which establishes an admissibility limit for complaints in civil proceedings, is not applicable in social court proceedings according to the settled case law of the adjudicating Senate (cf. for example: Senate resolutions 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 complaint is also justified. The plaintiff is entitled to the granting of PKH for the lawsuit she brought before the SG S 36 AS 328/09.
Given her economic and personal circumstances, the plaintiff cannot bear the costs of the litigation herself either in full, in part or in installments. Contrary to the opinion of the SG, the legal prosecution also has the sufficient prospect of success required for the granting of PKH.
In this sense, the prospect of success of a lawsuit is not only sufficient if, in the necessarily prognostic assessment of the possibilities of success in the lawsuit, a later victory appears more likely than a defeat. Rather, it is sufficient for PKH to be approved if the lawsuit can be conclusively substantiated on the basis of a provisionally justifiable legal position worthy of discussion and, in fact, there is a good possibility of providing evidence (Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 10. Edition 2012, § 73 a Rn 7a). For constitutional reasons alone, when assessing the prospects of success, an examination that is not too strict is necessary. Finally, Articles 3 Paragraph 1, 20 Paragraph 3 and 19 Paragraph 4 of the Basic Law (GG) require extensive equality between wealthy and poor people with regard to their respective opportunities to make use of effective legal protection (BVerfG, decisions of March 24, 2011 - 1 BvR 2493/10, ZfSH/SGB 2011, 475f, and from April 26, 1988 - 1 BvL 84/86, BVerfGE 78, 104). In particular, the legal recourse guarantee of Article 19 Paragraph 4 of the Basic Law against sovereign actions by social service providers would be missed if the clarification of legally and factually relevant doubts, which can only be expected as a result of a legal procedure, were brought forward to the PKH approval procedure in the sense of an overly coarse decision forecast. PKH may therefore only be refused from the point of view of the insufficient prospect of success if success in the main matter is, if not impossible, then at least completely remote (cf. BVerfG, decision of April 7, 2000 - 1 BvR 81/00 , NJW 2000, 1936 ff on PKH approval for open legal questions).
According to these principles, the granting of PKH could not be refused on the grounds that the costs of fresh water supply are not KdU, but rather costs to be covered from the standard power (since January 1, 2011: standard requirement) (cf. on this Reasoning: p. 3 of the contested decision). Finally, the question of allocating the costs of fresh water supply either to the standard output (or to the standard requirement) or to the KdU is controversial. For example, the 7th and 9th Senate of the LSG Lower Saxony-Bremen share the legal opinion represented by the SG (see resolutions 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, however, for example, the LSG Bavaria (judgment of June 10, 2010 - L 7 AS 612/09, NZS 2011, 236), the LSG Hesse (decision of March 14, 2006 - L 7 SO 4/06 ER) and the SG represent Freiburg (judgment of April 15, 2011 - S 6 AS 3782/09) takes the opposite view. The last-mentioned view, which deviates from the jurisprudence of the 7th and 9th Senate of the LSG Lower Saxony-Bremen referred to by the SG, is also shared in large parts of the literature (cf. for example: Berlit in: Münder, LPK-SGB II, 4 . Edition, § 22 para. 27; Krauß in: Hauck/Noftz, SGB II, status 2012, K § 22 para. 34; Piepenstock in juris-PK SGB II, 3rd edition 2012, § 22 para. 45). This view could also be supported by the fact that the BSG regards the costs of water supply for private homes as costs of accommodation and therefore not as covered by the standard benefit or standard requirements (cf. judgment of November 24, 2011 - B 14 AS 121/10 R ). Due to the requirement of equal legal protection, the clarification of such an open legal question may not be postponed to the PKH procedure (cf. BVerfG, decision of June 20, 2006 - 1 BvR 2673/05).
When examining the prospects of success of the plaintiff's legal action, it is therefore crucial to determine whether a successful lawsuit for monthly KdU in the amount of €377.30 (including costs of fresh water supply) instead of the €372.03 actually paid is completely remote.
To justify his motion to dismiss, the defendant essentially relies on the maximum values for appropriate KdU in the area of the city of Göttingen determined in the F+B GmbH report. However, the results of this report cannot be taken into account in the decision on the plaintiff's PKH application. Finally, the plaintiff submitted her PKH application on February 23, 2009, simultaneously submitting the “declaration of personal and economic circumstances”. The PKH application was therefore ready for a decision after the deadline set for the defendant to submit a statement had expired at the end of March 2009. However, if a court does not decide immediately (here: end of March 2009), but only much later (here: August 2011), despite the PKH decision being ready, the examination of the prospects of success is exceptionally not based on the time of the PKH decision, but on the time of the readiness for approval, provided that the delay in the PKH decision is not the applicant's responsibility (cf. LSG Bayern, resolution of April 22, 2009 - L 11 AY 2/09 B PKH; Senate resolution of October 8, 2010 - L 11 SB 137/09 B; also: Leitherer in Meyer-Ladewig, SGG, 10th edition 2012, § 73a para. 7d with extensive additional evidence). At the time when the PKH decision was ready, the F+B GmbH report, which was only prepared by the defendant in March 2009, had not yet been introduced into the lawsuit. This only took place with the defendant's written statement dated August 31, 2009 (received by the SG on September 7, 2009). There is also no evidence that the report, which was only prepared for the defendant in March 2009, was already known to the SG Hildesheim in March 2009.
Sufficient prospects of success of the lawsuit cannot be denied with reference to the GEWOS report from 2005 or the case law of the LSG Lower Saxony-Bremen issued in this regard and cited by the defendant (see the defendant's submission in this regard: written statement dated August 31, 2009 ). In the decision of June 19, 2007 (L 8 AS 161/07 ER) mentioned by the defendant, the 8th Senate referred to the GEWOS report in expedited proceedings, but did so in express deviation from the BSG case law the examination standards applicable to the main proceedings (see p. 9, paragraph 1 of the decision). In addition, the 8th Senate had already decided at that time that the aspect of the availability of appropriate housing for benefit recipients willing to move highlighted in the GEWOS study might require further clarification in further investigations in main proceedings with regard to the case law of the BSG (page 10 of the decision). However, if investigations are still necessary in the main proceedings, PKH cannot be rejected due to a lack of prospects of success.
Likewise, the decision of the 9th Senate of the LSG Lower Saxony-Bremen of September 20, 2006 (L 9 AS 401/06 ER) cited by the defendant cannot be used to reject PKH in the present proceedings. In this decision, which was made before the fundamental decisions of the BSG on the so-called "conclusive concept", the 9th Senate was based on the table values for § 8 WoGG old version and additionally stated that on the basis of, among other things, the GEWOS According to the report, further surcharges to the table values are not indicated (p. 7 of the decision). However, according to the now established case law of the BSG, the table values according to the WoGG are not the primary examination standard for the appropriate KdU within the meaning of Section 22 SGB II. Rather, the basic security provider is required to have a so-called “conclusive concept” with regard to the specific local conditions on the housing market (cf. most recently: BSG, judgment of December 20, 2011 - B 4 AS 19/11 R, Rn 20f. with extensive evidence from the case law of the BSG). Only if such a coherent concept can no longer be created can the table values according to the WoGG be used as an exception, although these must be increased by a surcharge. This surcharge is justified by the fact that, in the absence of a coherent concept, it cannot be assessed with certainty how high the appropriate reference rent actually was (see for example: 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 according to Section 8 VVoGG old version, the case law of the 9th Senate of the Lower Saxony-Bremen LSG in the interim legal protection does not correspond to the standards applicable to main proceedings.
After all, at least when the PKH decision was ready in March 2009, the defendant did not have a “conclusive concept” within the meaning of the BSG case law, so that the plaintiff's success was not entirely remote.
In addition, the Senate points out that it is now evident that even the defendant is no longer sticking to his original opinion on the maximum amount of the appropriate KdU. While in the contested decisions he assumed a maximum amount of the appropriate gross rent for single people in the city of Göttingen of €325 per month (based on, among other things, the GEWOS report), he now considers an amount of €331 per month to be correct (p . 2 of the defendant's written statement dated August 31, 2009, see also page 29 of the F+B GmbH report). This difference of €6 per month is already above the higher benefits sought by the plaintiff for KdU amounting to €5.27 per month. In addition, it has so far remained unclear up to what amount the defendant is prepared to cover heating costs. For the period in dispute in the present proceedings, the defendant - apparently in constant administrative practice - did not cover the heating costs in the amount of the actual consumption, but rather calculated them according to a flat rate system (0.95 € per square meter of appropriate living space, cf. for the subsequent approval period: file note dated September 18, 2008, page 332 of the defendant's administrative file). If the defendant sticks to his previous administrative practice for the period in dispute, he would have to give a partial acknowledgment of €378.03 (appropriate gross rent of €331 according to the report from F+B GmbH plus flat-rate heating costs of €47.03). This amount would also be above the amount of €377.30 per month sought by the plaintiff.
The granting of PKH does not stand in the way of the very low amount in dispute of €31.62 (= €5.27 per month). Finally, 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 risk of costs (cf. in detail: Federal Constitutional Court (BVerfG), decision of March 24, 2011 -1 BvR 1737 /10, Rn 17).
The cost decision is based on Section 73a SGG in conjunction with Section 127 Paragraph 4 ZPO.
This decision is final.
