VERDICT
In the legal dispute
between 1. xxx,
2. xxx,
3. xxx,
4. xxx,
Plaintiffs,
Procedural representative: to 1-4: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
Defendant,
The Social Court of Hildesheim – 37th Chamber of the Social Court of Hildesheim, in its oral hearing of August 27, 2012, through the presiding judge, Judge H., and the lay judges S. and M., has ruled as follows:
1. The decision of 24 January 2011, as amended by the amending decision of 23 March 2011, and as modified by the decision on the objection of 4 August 2011, is hereby amended.
2. The defendant is ordered to grant the plaintiffs an additional €17.26 per month towards the costs of accommodation and heating for the period from February 1, 2011 to July 31, 2011, totaling €103.56.
3. The defendant shall reimburse the plaintiffs for their extrajudicial costs.
FACTS OF THE ACT
The plaintiffs are demanding higher costs for accommodation and heating (KdU) from the defendant in accordance with the Second Book of the Social Code (SGB II).
The plaintiffs, who were receiving benefits under the German Social Code, Book II (SGB II), lived in a 96.73 square meter rented apartment during the period in question. The rent for this apartment was €483.65 plus €133.61 in additional costs, totaling €617.26 in gross rent (excluding utilities). Heating costs amounted to €85.00, resulting in a total rent of €702.26.
By decision dated January 24, as amended by the decision dated March 23, 2011, the defendant granted the plaintiffs benefits under the German Social Code, Book II (SGB II), in the amount of €663.38 (February and March 2011) and €663.61 (April to July 2011) for the period from February 1 to July 31, 2011. In doing so, he took into account accommodation costs of €600.00 and covered all heating costs.
The plaintiffs filed an objection to the decision of March 23, 2011. In support of their objection, they stated that, to their knowledge, there was no rent index or valid rent database relevant to basic income support for Göttingen. The expert opinion from the company F + B was clearly not to be considered a survey valid for determining reasonable rent limits within the jurisdiction of the Göttingen district. Therefore, the calculation of the costs for accommodation and heating should be based on the table value according to Section 12 of the Housing Benefit Act (WoGG) plus a safety margin of 10%.
By decision dated August 4, 2011, the defendant rejected the objection as unfounded. On December 15, 2010, the district council resolved that, effective January 1, 2011, new limits for reasonable housing costs (KdU) for those receiving benefits under the German Social Code, Book II (SGB II), should be recognized, based on the current housing allowance table in effect since January 1, 2009. Accordingly, effective January 1, 2011, a monthly amount of €600.00 should be considered reasonable housing costs (gross rent excluding utilities) for a four-person household with a reasonable living space of 85 square meters in the city of Göttingen.
The plaintiffs filed a lawsuit against this decision of the defendant on August 8, 2011, before the Hildesheim Social Court.
They request that
the defendant, by amending the defendant's decision of March 23, 2011, as modified by the appeal decision of August 4, 2011, be ordered to grant the plaintiffs an additional €17.26 per month towards the costs of accommodation and heating.
The defendant requests that
1. the action be dismissed,
2. leave to appeal be granted.
Reference is made to the judgment of the Bremen Social Court of November 4, 2011, file number S 21 AS 1011/09, which establishes that a safety margin is not to be granted for the table values in Section 12 of the Housing Benefit Act (WoGG). Furthermore, a study by the Federal Ministry of Transport, Building and Urban Development and the Federal Institute for Research on Building, Urban Affairs and Spatial Development shows that setting the adequacy limit constitutes an intervention in the dynamics of the housing market, which in turn has consequences that must be weighed as part of the decision-making process. If the adequacy limit is set generously above the upper limit of the affordable segment, the balance between the demand groups shifts: Recipients of housing allowance would have greater purchasing power than low-income earners without transfer payments and would simultaneously compete with some of the housing demanders in the middle price segment. Setting the adequacy limit too generously could therefore lead to distortions of competition between demand groups and a price-increasing effect in the low-cost segment. The existing case law of the Federal Social Court (BSG) indicates a tendency against increasing the table value. In its decision of December 20, 2011, file number B 4 AS 19/11 R, the presiding 4th Senate initially referred to the table values "pursuant to Section 8 of the Housing Benefit Act (WoGG), or now Section 12 WoGG," and in the subsequent sentence, which addresses the safety margin, expressly omitted any further reference to Section 12 WoGG.
For further details of the facts and legal arguments as well as the submissions of the parties, reference is made to the administrative files and the court file, which were available and formed the basis of the decision-making process.
REASONS FOR THE DECISION
The admissible action is well-founded. The defendant's decision of January 24, 2011, as amended by the amending decision of March 23, 2011, and as further amended by the decision on the objection of August 4, 2011, is unlawful and infringes the plaintiffs' rights; Section 54 Paragraph 2 of the Social Courts Act (SGG).
The subject of the dispute was permissibly limited to the amount of accommodation and heating costs incurred by the plaintiffs.
The plaintiffs are entitled to higher benefits for the period in dispute pursuant to Sections 7, 19, 20, and 22 of the German Social Code, Book II (SGB II). They are entitled to a total of €617.26 in accommodation costs for the period from November 1, 2011, to April 30, 2012, instead of the €600.00 granted by the defendant. This results in an entitlement to an additional €17.26 per month.
The legal basis for the plaintiff's claim for benefits is Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). According to this provision, the costs for accommodation and heating are recognized in the amount of the actual expenses, provided these are reasonable. Since the defendant intended to cover the plaintiff's accommodation and heating costs in a reasonable amount during the period in question and thus did not make use of the option granted to him in Section 22 Paragraph 1 Sentence 2 of the SGB II to recognize reasonable accommodation and heating costs only at the previous level after an unnecessary move, the only issue to be decided is what constitutes reasonable accommodation and heating costs. In the present case, the provision in Section 22 Paragraph 1 Sentence 3 of the SGB II does not lead to a different conclusion. This provision stipulates that accommodation and heating costs must be recognized even if they are unreasonable as long as the beneficiary is unable to reduce these costs by moving, subletting, or otherwise. The plaintiffs were informed by the defendant on October 28, 2010, that the costs for this accommodation were not reasonable and could not be covered by the defendant, so that at least for the period in dispute in the present legal proceedings, the standard maximum period of six months pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), was clearly not undercut in the case of a cost reduction request.
According to the case law of the Federal Social Court (see judgment of 07.11.2006 – B 7b AS 18/06 R –), the appropriateness of accommodation costs (basic rent and additional costs) must be examined in several steps: First, it is necessary to determine the size of the apartment rented by the person in need of assistance or by the household; that is, the square footage of the apartment specifically affected in the case at hand must be determined.
Regarding apartment size, the respective state-level guidelines on social housing subsidies must be consulted. The basis for determining apartment size is Section 10 of the Housing Subsidy Act of September 13, 2001 (WoFG, Federal Law Gazette 2376). According to this section, states can regulate the recognition of certain limits for apartment sizes in subsidized rental housing based on principles of appropriateness. The individual states issue guidelines for this purpose. In Lower Saxony, the guidelines on social housing subsidies (Housing Subsidy Provisions – WFB 2003) can be found. According to Section B No. 11.2 of these provisions, a living space of 85 square meters is considered appropriate for rental apartments for four household members. The apartment occupied by the plaintiffs, with an area of 96.73 square meters, is too large. Therefore, the decisive factor is whether the rent is appropriate according to abstract review criteria.
In a second step, it must be determined whether the rented apartment corresponds to the product of reasonable living space and standard reflected in the rent. The expenses for an apartment are only considered reasonable if, in terms of its furnishings, location, and building structure, it meets basic and fundamental needs and does not represent a high standard of living. Therefore, with regard to the aforementioned criteria, the factors that regularly determine the rent and are reflected in the price per square meter, the apartment must be in the lower segment of comparable apartments in the relevant geographical area. The primary geographical benchmark is the place of residence of the person in need of assistance, because a move to a different location that would entail abandoning their social environment cannot generally be expected of them (see Federal Social Court, Judgment of November 7, 2006 – B 7b AS 10/06 R – https://sozialgerichtsbarkeit.de/sgb/esgb/show.php?modul=esgb&id=64144).
According to the case law of the Federal Social Court, the basic income support provider must create a coherent concept which, according to the judgment of the aforementioned court of September 22, 2009 – B 4 AS 18/09 R – must meet the following criteria:
• Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization),
• a comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to apartment standard, gross and net rent
• Information on the observation period,
• Definition of the method of data collection (sources of information, 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 on the conclusions drawn (e.g. upper limit of the range or capping limit).
No such coherent concept exists for the Göttingen area during the period in question.
A rent index or rent database within the meaning of Sections 558c and 558d of the German Civil Code (BGB) that could be used in this case is also not available for Hildesheim.
In municipalities where no rent index exists, it is permissible to refer to the right-hand column of the housing benefit table if the court has no further sources of information or means of investigation available for the local housing market (see BSG, judgment of August 20, 2009 – B 14 AS 65/08 R; judgment of September 22, 2009 – B 4 AS 18/09 R and LSG Lower Saxony-Bremen, judgment of April 24, 2007 – L 7 AS 494/05). Actual maintenance expenses are to be covered up to the amount of the table values moderately increased by a supplement as defined in Section 8 of the Housing Benefit Act (WoGG) (Federal Social Court [BSG], Judgment of September 22, 2009 – B 4 AS 18/09 R; Higher Social Court of Lower Saxony-Bremen [LSG Niedersachsen-Bremen], Decision of September 13, 2010 – L 11 AS 1015/10 B ER and of July 13, 2010 – L 7 AS 1258/09 B ER). The supplement amounts to 10 percent because, due to the lack of a conclusive concept, it cannot be determined with certainty what the actual appropriate reference rent was (Federal Social Court [BSG], Judgment of November 7, 2006 – B 7 AS 18/06 R). This safety supplement is also to be granted on the basis of the housing benefit table pursuant to Section 12 of the Housing Benefit Act (see Federal Social Court, judgments of 19 October 2010 — B 14 AS 15/09 R -, and of 17 December 2009 — B 4 AS 50/09 R – para. 27, cited according to juris; Higher Social Court of Lower Saxony-Bremen, decisions of 4 January 2012 – L 11 AS 635/11 B ER -, of 21 November 2011 – L 11 AS 1063/11 B ER -, of 7 July 2011 — L 9 AS 411/11 B ER - and of 13 July 2010 – L 7 AS 1258/09 B ER).
According to the criteria in the table for Section 12 of the Housing Benefit Act (WoGG), Göttingen belongs to the municipalities with rents in category 4. For a four-person household, a maximum amount of €600.00 per month, including utilities but excluding heating, is provided. Increasing this amount by 10% results in a value of €660.00. The plaintiffs are therefore entitled to reimbursement of their actual housing costs of €617.26 per month, i.e., an additional €17.26 per month.
The decision on costs is based on § 193 SGG.
The appeal was inadmissible here.
According to § 143 in conjunction with § 144 para. 1 SGG, the required value of the appeal of €750 is not reached.
The relevant case law of the higher courts does not provide for a fundamentally different decision (§ 144 para. 2 no. 2 SGG) regarding the question of whether a safety surcharge of 10 percent should also be granted on the values in the table to § 12 WoGG, nor can it be assumed that this is a question requiring clarification (§ 144 para. 2 no. 1 SGG), because the Chamber is of the opinion that there are sufficient indications as to how the specific question raised should be answered (cf. on this criterion BSG, judgment of May 25, 2011 – B 4 AS 29/11 B).
Reference is made to the decisions already cited (see in particular BSG, judgment of 17 December 2009 — B 4 AS 50/09 R – para. 27 and LSG Lower Saxony-Bremen, decision of 21 November 2011 – L 11 AS 1063/11 B ER – para. 24 – each cited according to juris.de).
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