VERDICT
In the legal dispute
between 1. xxx
2. xxx
3. xxx
4. .xxx
5. xxx
Plaintiffs 1) + 4) residing at: xxx
Plaintiffs 2), 3) + 5) residing at: xxx
Plaintiffs,
Procedural representative: to 1-5: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
Defendant,
The Social Court of Hildesheim – 38th Chamber of the Social Court of Hildesheim, in the oral proceedings of August 30, 2012, through the presiding judge, Judge xxx, and the lay judges Mr. xxx and Mr. xxx, has ruled as follows:
1. The defendant is ordered, by amending the decision of October 12, 2009, as amended by the amending decision of November 24, 2009, as amended by the objection decision of November 27, 2009, as amended by the remedial decision of March 11, 2010, as amended by the amending decision of May 24, 2012, to grant the plaintiffs a further amount of €48.00 for heating costs for the period from October 1, 2009 to November 30, 2009.
2. The defendant shall bear 50% of the plaintiff's necessary extrajudicial costs
3. The appeal is not admitted.
FACTS OF THE CASE
The plaintiffs now seek reimbursement of the actual heating costs for the period from October 1, 2009 to November 30, 2009, in the amount of 178.67 euros instead of 145.65 euros.
The plaintiffs are currently receiving benefits from the defendant to secure their livelihood under the Second Book of the Social Code (SGB II).
Plaintiff 1 and Plaintiff 2 are the parents of Plaintiffs 3 to 5. Until November 14, 2009, the plaintiffs lived in a 76.71 m² apartment in xxx in xxx, for which rent costs of 302.55 euros, operating costs of 195.07 euros and heating costs (gas) of 178.67 euros were incurred.
The plaintiffs then moved into a 92 m² apartment in xxx in xxx. The basic rent for this apartment was €380.00, the operating costs were €110.00 and the heating costs were €90.00.
In March 2009, the plaintiffs submitted the heating bill for 2008 to the defendant, which showed a balance due of €845.97. The monthly payment for heating costs was set at €178.65 effective May 1, 2009.
During a personal meeting with the defendant, the first plaintiff allegedly explained the extraordinary increase in heating costs by stating that all laundry was dried in the living room with the heating running and the window open, as the plaintiffs could not afford a clothes dryer and the use of the drying room or basement in the house was unreasonable.
By amended decision dated June 15, 2009, the defendant granted the plaintiffs benefits in the amount of €1,307.75 for the period from June 1, 2009 to September 30, 2009. On page 5 of this decision, the defendant stated that only €260.38 of the heating cost arrears would be covered and that, from June 2009 onwards, €145.65 would be granted as reasonable heating costs pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
To investigate the plaintiffs' alleged inefficient heating practices, the defendant commissioned its field service to conduct a home visit.
During the visit on July 29, 2009, the defendant's employees discovered a leaky apartment door, new windows in poor condition (partially bent guide rails), a defective balcony door, and windows in the living room. Based on their findings, they concluded that inefficient heating practices by the apartment occupants were highly likely. The plaintiffs were deemed partly responsible for the disastrous condition of the windows and balcony door.
Upon telephone inquiry by the defendant with the owner of the apartment complex, the owner was informed that only the window glazing had been replaced in 2007/2008 and that replacing the window frames had not been necessary.
A further home visit was conducted on August 13, 2009, for the purpose of photographic documentation. The plaintiff stated that the windows and balcony door had been repaired three days after the first home visit by a company commissioned by the owner.
Upon the plaintiffs' application for continued payment, the defendant granted the plaintiffs benefits in the total amount of 1368.55 euros per month for the period from 1 October 2009 to 30 November 2009 by decision dated 12 October 2009, whereby an amount of 145.65 euros was taken into account for heating costs.
By letter from their attorney dated October 14, 2009, the plaintiffs filed an objection to the decision of October 12, 2009. They argued that a reduction of the heating costs to a reasonable amount was not justified. In support of their objection, they referred to the decisions of the Lower Saxony-Bremen State Social Court of December 15, 2005 (Case No. L 8 AS 427/05 ER) and of November 20, 2007 (Case No. L 13 AS 125/07 ER). Furthermore, they asserted that the flat-rate charge for hot water was too high.
After the plaintiffs moved to [address] on November 15, 2009, the defendant issued an amended decision dated November 24, 2009, granting them benefits totaling €1,338.87 for the period from November 1, 2009, to November 30, 2009. The defendant revoked the decision of October 12, 2009, pursuant to Section 48 Paragraph 2 Sentence 2 No. 4 of the Tenth Book of the German Social Code (SGB X), effective November 1, 2009. The move reduced heating costs to €90.00, resulting in an overpayment of €30.00.
In a letter dated November 27, 2009, the plaintiffs stated that the move to the apartment in xxx had been necessary to reduce heating costs, and therefore the actual costs of accommodation and heating in the new apartment should be borne by the defendant.
By decision dated November 27, 2009, the defendant rejected the plaintiffs' appeal as unfounded. The deduction of the costs for hot water preparation from the heating costs was lawful. Regarding the heating costs, the actual apartment size (77 m²) had to be taken into account, resulting in reasonable heating costs of €145.65. Reimbursement of any further costs was not possible, especially since the plaintiffs appeared to be using inefficient heating methods. The plaintiffs dry laundry with the window open.
Furthermore, mold was discovered on the wall of the apartment during a home visit on June 17, 2009.
By letter dated December 1, 2009, the plaintiffs filed a lawsuit with the Hildesheim Social Court. In support of their claim, they reiterated their arguments from the preliminary proceedings. They further stated that the defendant must prove that the plaintiffs engaged in uneconomical heating practices. They asserted that such practices did not exist in their case. The defendant had first alleged uneconomical heating practices in the appeal decision, referring to findings from 2006. A mold infestation from 2009 was insufficient proof of uneconomical heating practices. The defendant's assumptions were merely speculation.
By letter dated January 19, 2010, the defendant, taking into account the case law of the Federal Social Court, issued a partial acknowledgment of the claim regarding the hot water allowance, which the plaintiffs accepted by letter dated January 26, 2010, while continuing their action in all other respects. By decision dated March 9, 2010, the defendant implemented this partial acknowledgment and, thereby revoking the decision of December 22, 2009, granted the plaintiffs €1,370.00 for October 2009, €1,340.00 for November 2009, €1,314.00 for December 2009, and €1,254.00 for January 2010.
No written request to reduce costs was sent to either the plaintiffs or their legal representative. The defendant cannot prove uneconomical heating practices. In further support of their position, they refer to the judgment of the Federal Social Court of September 19, 2009 (Case No. B 14 AS 54/07 R).
The plaintiffs submitted the heating bill for 2009 to the court file. This shows actual heating costs of €1465.79, resulting in a credit of €406.81. For further details, please refer to pages 70 et seq. of the court file.
By letter dated October 20, 2010, the plaintiffs withdrew their claim insofar as the standard benefit for plaintiffs 3 to 5 was the subject of the dispute.
By amended decision dated May 24, 2012, the defendant granted the plaintiffs benefits in the total amount of 1411.04 euros for the period from November 1, 2009 to November 30, 2009, of which heating costs amounted to 268.67 euros.
The plaintiffs now request
that the defendant, by amending the decision of October 12, 2009, as amended by the amending decision of November 24, 2009, as amended by the objection decision of November 27, 2009, as amended by the remedial decision of March 11, 2010, as amended by the amending decision of May 24, 2012, be ordered to grant the plaintiffs a further amount of €48.00 for heating costs for the period from October 1, 2009 to November 30, 2011.
The defendant requests that
the action be dismissed insofar as it goes beyond the partial admission of liability dated January 19, 2010.
In support of his position, he refers to his statements in the contested decisions. The plaintiffs' heating energy consumption and the associated costs were discussed in detail with them on June 10, 2009 (see pages 524 et seq. of the administrative file). Furthermore, the decision of June 15, 2009, referred to the reasonable heating costs (see page 530 of the administrative file), and the costs were also addressed during the home visit on July 29, 2009 (see pages 564 et seq. of the administrative file). The heating behavior described by plaintiff no. 1 on June 10, 2009, could have been remedied immediately. Similarly, the poor insulation of the defective windows could have been rectified at any time by simply notifying the owner. According to the Federal Social Court's ruling of September 19, 2008 (Case No. B 14 AS 54/07 R), Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) cannot simply be applied analogously in cases of inefficient heating practices. The high heating costs were due to the plaintiffs' behavior. Furthermore, the six-month period is not a minimum period, but a standard maximum period. Since the plaintiffs could have changed their behavior immediately, there is no reason to exhaust the maximum timeframe of six months. Moreover, the plaintiffs moved out of the apartment in mid-November 2009.
For further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative files (5 volumes), which were submitted to the court and formed the basis of its decision.
REASONS FOR THE DECISION
The admissible claim is well-founded.
The contested decision of October 12, 2009, as amended by the decision of November 24, 2009, as amended by the decision on the objection of November 27, 2009, as amended by the remedial decision of March 11, 2010, and as amended by the decision of May 24, 2012, is unlawful and must be amended as it infringes upon the plaintiffs' rights. The plaintiffs are entitled to a further claim in the amount of €48.00 for heating costs for the period from October 1, 2009, to November 30, 2009.
The only point of contention is the amount of heating costs to be approved for the aforementioned period, taking into account heating costs already approved, amounting to a total of €48.00. It is not in dispute that the plaintiffs belong to the group of persons entitled to and in need of assistance within the meaning of Sections 7 Paragraph 1, Paragraph 3, 9 Paragraph 1, Paragraph 2 of the German Social Code, Book II (SGB II).
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. If the accommodation expenses exceed what is reasonable for the specific circumstances of the individual case, they are to be considered as part of the needs of the single person in need of assistance or the household for as long as it is not possible or reasonable for the single person in need of assistance or the household to reduce the expenses by moving, renting, or in any other way, but generally for no longer than six months (see Section 22 Paragraph 1 Sentence 3 SGB II).
The outstanding amount of €48.00 for heating costs is comprised as follows:
– €33.02 for the month of October 2009 (€178.67 actual heating costs in apartment xxx in xxx less the already approved €145.65) and
– €15.40 for the month of November 2009 (€83.37 pro rata for the period from November 1st to November 14th, 2009 in apartment xxx in xxx and €48.00 pro rata for the period from November 15th to November 30th, 2009 in apartment xxx in xxx less the already approved €115.97).
These costs are eligible for consideration if they are reasonable. According to the jurisprudence of the Federal Social Court (BSG), which this chamber follows, an individual assessment of reasonableness must be carried out, which is generally separate from the assessment of the reasonableness of the accommodation costs (BSG, judgment of July 2, 2009 – B 14 AS 36/08 R – cited according to juris). In this context, blatantly expensive or uneconomical heating is not to be financed by the basic income support provider. The data basis for the assessment of reasonableness is the municipal heating cost index or, if none exists, the nationwide heating cost index. In the present case, no municipal heating cost index exists, and the heating costs significantly exceed the value stipulated in the nationwide heating cost index for extremely high heating costs with a gas heating system.
To the extent that the defendant assumes the plaintiffs' heating practices are inefficient, the court does not agree. While
the first plaintiff may have stated in a personal conversation with the defendant that they dry their laundry with the window open and the heating on,
this is merely an indication of inefficient heating practices. Considering all the circumstances, the court finds that the plaintiffs' heating practices cannot be proven inefficient.
In particular, it must be taken into account that during the home visit initiated by the defendant, it was discovered that the apartment door, as well as the windows and balcony door, were not in proper working order, and this alone could have led to an increase in heating costs.
Furthermore, the first plaintiff stated in a subsequent conversation with the defendant that they do not dry their laundry with the window open and the heating on.
Even if the plaintiffs occasionally dried their laundry indoors, this behavior alone would not lead to such a significant increase in heating costs. There is a lack of evidence regarding the frequency with which the plaintiffs actually did their laundry.
Furthermore, the heating bill for 2009 shows that the plaintiffs reduced their heating costs again, incurring a monthly expense of only €122.
Taking into account Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), the actual heating costs in the disputed period must be borne by the defendant in the present case.
According to the jurisprudence of the 14th Senate of the Federal Social Court (BSG), which this chamber follows, the provision establishes an obligation to reduce costs (BSG, Judgment of February 27, 2008 – B 14/7b AS 70/06 R, SozR 4-4200 § 22 No. 8). If a comparison between actual heating costs and the heating costs deemed reasonable according to the heating cost index shows that the expenses for the specific rented apartment are higher than the reasonable heating costs, the recipient of assistance is required to take measures to reduce costs. Such cost-reduction measures include, for example, changing apartments, (sub)letting, renegotiating with the landlord, etc. (cf. Knickrehm/Voelzke/Spellbrink, Costs of Accommodation according to § 22 SGB II, DGST Practitioner's Guide, p. 39 under B IV 1).
The plaintiffs were first informed in June 2009 by an employee of the defendant that the heating costs for their apartment were too high. Therefore, the six-month period stipulated in Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) had not yet expired in October and November 2009. If
the recipient of assistance is aware of their obligation to reduce heating costs and cost-cutting measures are both subjectively reasonable and feasible, they can only claim reimbursement of their expenses up to the amount of reasonable heating costs according to the heating cost index, starting from the point at which these measures could take effect. A six-month "grace period" before the commencement of cost-cutting measures and the continued payment of unreasonable heating costs "as a rule" for a six-month period without further justification cannot be derived from either the wording or the purpose of Section 22 Paragraph 1 Sentence 3 of the SGB II.
Only if cost-cutting measures are impossible or subjectively unreasonable will the actual (higher) expenses initially be covered, but according to the wording of the law, "as a rule, for a maximum of six months." Thus, even in cases of "unreasonableness or impossibility," the regulation stipulates that "as a rule," after six months at the latest, only expenses up to the amount of the costs deemed reasonable according to the heating cost index should be reimbursed (standard case). However, since, on the one hand, the law cannot demand "nothing impossible or unreasonable" from those receiving assistance regarding cost-cutting measures, such as searching for alternative accommodation, and on the other hand, the assumption of excessive costs should be exceptional in light of the aforementioned legal consequences, strict requirements must be placed on the interpretation of the elements of impossibility and unreasonableness when determining exceptions to the standard case. The reimbursement of unreasonable costs remains the exceptional case requiring justification based on objective reasons, and the obligation to reduce costs remains in effect even in cases of impossibility or subjective unreasonableness.
Following the defendant's notification that the heating costs were too high, the plaintiffs informed the landlord just three days after the home visit on July 29, 2009. The landlord then had the defective windows and balcony door repaired by a company (see page 567 of the defendant's administrative file).
Furthermore, the plaintiffs initially attempted to insulate the windows with adhesive tape, although this was clearly an unsuccessful measure and could not have been successful. It
should also be noted that the plaintiffs contacted their landlord, which enabled them to move to [address redacted] on November 15, 2009.
In conclusion, the plaintiffs did everything within their power to reduce their costs. The defendant's view that the plaintiffs should have contacted the landlord to have the defective windows and balcony door repaired as soon as they became aware of the excessive heating costs does not lead to a different decision in this case. Since this repair was already carried out between October 1, 2009 and November 30, 2009, and as evidenced by the heating cost statement for the year 2009, there was also a reduction in costs.
Thus, the plaintiffs have a claim for further heating costs in the amount of 33.02 euros in October 2009 and a claim for further heating costs in the amount of 15.40 euros in November 2009, totaling 48.42 euros, which the plaintiffs have only requested in the amount of 48.00 euros in total.
The decision on costs is based on Section 193 Paragraph 1 of the Social Court Act (SGG) and takes into account the outcome of the proceedings. In particular, it was also taken into account that the plaintiffs withdrew their claim on behalf of plaintiffs 3 to 5 regarding the constitutionality of the standard benefit.
The appeal is inadmissible pursuant to Section 144 Paragraph 1 Number 1 of the Social Court Act (SGG) because the value of the subject matter of the appeal does not reach €750.00. There is no ground for granting leave to appeal pursuant to Section 144 Paragraph 2 of the Social Court Act (SGG).
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