VERDICT
In the legal dispute
1. xxx,
2. xxx,
represented by
xxx
3. xxx,
represented by
xxx,
Plaintiffs,
Legal Representative: for 1-3: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
Defendant,
The 54th Chamber of the Social Court of Hildesheim, in its oral hearing of December 21, 2012, through the presiding judge, xxx, and the lay judges xxx, rendered the following judgment:
1. The defendant is ordered, by amending the decision of 29 March 2012 as modified by the appeal decision of 20 June 2012, to grant the plaintiffs further benefits for the costs of accommodation and heating in the amount of EUR 36.75 per month for the period 1 May - 31 October 2012, i.e. a total amount of EUR 220.50.
2. The defendant shall reimburse the plaintiffs' extrajudicial costs.
3. The appeal is not admitted.
FACTS OF THE CASE
The plaintiffs are claiming higher accommodation costs for the period 01.05.-31.10.2012.
The three plaintiffs are all currently receiving benefits under the Second Book of the German Social Code (SGB II). During the period in question, they resided in a 120 sq m apartment located at [address redacted] in 37343 Bilshausen. The rent amounts to €500.00 per month plus additional costs of €70.00. The apartment is heated by a wood-burning stove. Hot water is supplied by electricity.
By decision dated December 8, 2011, which concerned the benefit period from January 1 to April 30, 2012, the defendant recognized the plaintiff's need for accommodation costs, including ancillary costs, as amounting to only EUR 367.50 per month and pointed out at the same time that he would no longer cover higher costs, as the accommodation costs were only to be considered reasonable up to the aforementioned amount.
In the decision of March 29, 2012, which is the subject of these proceedings, the defendant granted the plaintiffs basic income support for job seekers for the period from May 1 to October 31, 2012. The defendant recognized a need for rent including utilities in the amount of EUR 490.00 per month as a reasonable need for housing costs.
The defendant rejected the objection raised against this decision with a formal notice of rejection dated June 20, 2012, on the grounds that, according to the district council resolution of December 15, 2010, the limits for reasonable housing costs, as defined in the housing allowance table in effect since January 1, 2009, were to be recognized as effective January 1, 2011. Accordingly, a living space of 85 square meters was deemed reasonable for a four-person household, resulting in a monthly amount of €490.00 as reasonable housing costs within the municipality of Bilshausen.
The plaintiffs filed their lawsuit on June 25, 2012.
They argue that, in order to determine the limit of adequacy, the values mentioned in § 12 WoGG should be increased by a safety margin of 10 percent, as was previously the case with § 8 WoGG.
The plaintiffs originally requested
that the defendant be ordered, by amending the decision of 29 March 2012 as modified by the appeal decision of 20 June 2012, to grant the plaintiffs the requested benefits monthly in the statutory amount, taking into account the legal opinion of the court.
In the oral proceedings, the plaintiffs' legal representative requested that
the defendant be ordered, by amending the decision of 29 March 2012 as modified by the appeal decision of 20 June 2012, to grant the plaintiffs additional monthly benefits for accommodation costs in the amount of EUR 36.75.
The defendant requests that
1. the action be dismissed and
2. leave to appeal be granted.
The values from Section 12 of the Housing Benefit Act (WoGG) should not be increased by a so-called moderate surcharge. In support of this, the defendant refers to the ruling of the Bremen Social Court of November 4, 2011 – S 21 AS 1011/09 – which he adopts as his own. Furthermore, the defendant refers to an analysis of housing market advertisements, among others, for the period from January 1 to September 30, 2012, for the area of Duderstadt, Gieboldehausen, and Radolfshausen, according to which the average gross rent excluding utilities for this period was €459.54 for apartments between 75 and 85 square meters and €441.29 for apartments between 85 and 95 square meters.
For further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative file.
REASONS FOR
THE DECISION The plaintiff's motion made during the oral proceedings does not constitute an amendment to the claim within the meaning of Section 99 Paragraph 1 of the Social Court Act (SGG) accompanied by a partial withdrawal of the claim within the meaning of Section 102 Paragraph 1 Sentence 1 of the SGG, but merely a clarification of his originally stated claim. From the outset, the claim sought higher benefits for accommodation and heating costs based on the value in Section 12 of the Housing Benefit Act (WoGG nF) plus a safety margin of 10 percent. This limitation of the subject matter of the dispute is permissible insofar as the decision regarding accommodation and heating costs is a severable decision (= administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X)) of the overall decision (Federal Social Court, Judgment of November 7, 2006 – B 7b AS 8/06 R, cited according to juris, para. 18).
The admissible action is well-founded. The defendant's decision of March 29, 2012, as amended by the decision on the objection of June 20, 2012, is unlawful and infringes the plaintiffs' rights (Section 54, Paragraphs 1 and 2 of the Social Courts Act (SGG)); pursuant to Sections 7, 19, 20, and 22 of the German Social Code, Book II (SGB II), the plaintiffs have a further claim for the costs of accommodation and heating in the amount of EUR 36.75 per month for the period in dispute.
The household is entitled to a total of €539.00 in accommodation costs for the period from May 1st to October 31st, 2012, instead of the €490.00 granted by the defendant. This results in a claim for the plaintiffs to an additional €36.75 per month.
A claim for reimbursement of the actual housing costs does not initially arise from Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), according to which housing expenses exceeding the amount appropriate to the specific circumstances of the individual case must be reimbursed if it is impossible or unreasonable for the household to reduce its expenses, but for a maximum of six months. The plaintiffs were aware, at the latest due to the decision of December 2, 2011, that the defendant did not consider their housing costs to be reasonable. While in that decision the defendant recognized only €367.50 as reasonable housing costs, whereas in the decision under appeal here the defendant considered €490.00 to be reasonable, this difference in favor of the plaintiffs does not mean that the defendant was required to issue a new cost reduction request to them regarding the amount exceeding the plaintiffs' allowance.
The legal basis for the plaintiffs' entitlement to 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.
According to the Federal Social Court's jurisprudence (see judgment of November 7, 2006 – B 7b AS 18/06 R –), the appropriateness of accommodation costs (basic rent and utilities) must be examined in several steps:
First, the size of the apartment rented by the person receiving assistance or by the household receiving benefits must be determined. The size of the apartment must be determined in accordance with the respective state laws governing social housing. The basis for determining the apartment size is Section 10 of the Housing Promotion 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 their own guidelines in this regard. In Lower Saxony, the guidelines for the implementation of social housing promotion in Lower Saxony (Housing Promotion Regulations – WFB –) dated September 1, 2011, and effective from January 1, 2012, apply. According to Section B No. 7 a) of these regulations, a living space of 85 square meters is considered appropriate for four household members in rental apartments. The apartment occupied by the plaintiffs, with a floor area of 120 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 –).
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 Bilshausen/Duderstadt/Göttingen area during the period in question. In particular, the defendant's evaluations of advertisements in the newspapers "Göttinger Tageblatt", "Hann. Mündener Allgemeine" and "Blick" do not meet the aforementioned requirements, either in terms of the representativeness of the collected data or the validity of the data collection.
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 Bilshausen.
In municipalities where no rent index exists, it is permissible to rely on the right-hand column of the housing benefit table if the court has no other sources of information or means of investigation available for the local housing market (see Federal Social Court [BSG], judgment of August 20, 2009 – B 14 AS 65/08 R; judgment of September 22, 2009 – B 4 AS 18/09 R and Higher Social Court of Lower Saxony-Bremen [LSG Niedersachsen-Bremen], judgment of April 24, 2007 – L 7 AS 494/05). This is the case here. In particular, the newspaper advertisements collected by the defendant do not provide a sufficient additional source of information in the aforementioned sense. In its decision of March 22, 2012, the Federal Social Court recognized that a safety margin of 10 percent must be granted on the values in the right-hand column of Section 8 of the Housing Benefit Act (WoGG) as it applied until December 31, 2012. In this respect, it stated:
“The purpose of the Housing Benefit Act (WoGG) is not to fully or substantially cover rents for housing if the income requirements are met (see Stadler/Gutekunst/Dietrich/Robe, WoGG, loose-leaf edition, 65th supplement, May 2011, § 12, marginal note 13). Rather, housing benefit is a subsidy for housing expenses (see § 1 WoGG, old version). The amount depends on the rent to be considered, the number of household members, and income. If the actual rent exceeds the amount stipulated in § 8 WoGG, the excess amount is disregarded when calculating housing benefit. However, the appropriate rent within the meaning of § 22 para. 1 sentence 1 SGB II must guarantee that housing is available at the value deemed appropriate.
Therefore, when determining the supplement, it must be noted that this is not a case-by-case application to a specific, factual situation, which the Higher Social Court (LSG) would have to consider.” The determination of housing costs is not governed by the conditions of the regional housing market. Rather, it must be determined taking into account general, abstract criteria. Recourse to regional conditions is not possible because the application of Section 8 of the Housing Costs Act (WoGG) only arises when there are no other means of ascertaining the costs within the relevant comparison area. Regional differences are already incorporated into the determination of the housing costs to be covered through the respective rent levels enshrined in the WoGG. In light of this, the Senate considers a surcharge of 10% for the table values of Section 8 WoGG (right column) to be appropriate and sufficient (see BSGE 97, 254 = SozR 4-4200 § 22 No. 3, para. 23; also affirming 10%: Lower Saxony-Bremen Higher Social Court, judgment of April 24, 2007 – L 7 AS 494/05; judgment of March 11, 2008 – L 7 AS 332/07; North Rhine-Westphalia Higher Social Court, judgment above). 26.5.2010 – L 12
In light of these considerations, the Chamber is convinced that, due to the continued unchanged, differing purpose of the now applicable Section 12 of the Housing Benefit Act (WoGG), a safety margin of 10 percent is also appropriate and necessary. To the extent that it is occasionally argued against a safety margin that Section 12 WoGG now eliminates the "argumentatively constructed risk" that the values in Section 8 WoGG (old version) might not adequately secure the basic needs for housing, because Section 12 WoGG corresponds to the values in the right-hand column of Section 8 WoGG (old version) plus 10 percent (Bremen Social Court, Judgment of November 4, 2011 – S 21 AS 1011/09 –, cited according to juris, para. 19), the Chamber cannot agree. The Bremen Social Court's reasoning suggests that (sufficient) information exists about the current rental housing market, which is simply not the case. Therefore, it is impossible to assess whether the amounts specified in Section 12 of the Housing Benefit Act (WoGG) are sufficient. This is all the more true since the amounts in Section 8 of the former version of the WoGG have remained unchanged since the provision came into force in 2005. It must also be noted that Section 12 of the WoGG is not intended to cover rents for housing in full or to a significant extent, provided the income requirements are met (Federal Social Court, Judgment of March 22, 2012 – B 4 AS 16/11 R, cited according to juris). To the extent that the Bremen Social Court objects that different treatment of housing benefit recipients and recipients of social assistance under Book II of the German Social Code (SGB II) appears "unacceptable" and that, moreover, the recognition of a safety margin poses the risk that "landlords [...] will adjust to the prevailing level of the benefit providers," these are political considerations (Bremen Social Court, Judgment of November 4, 2011 – S 21 AS 1011/09 –, cited according to juris, paras. 20, 24). Moreover, the latter assertion only holds true if the amounts specified in Section 12 of the Housing Benefit Act (WoGG) adequately reflect current rents, which – as already stated – cannot be reliably assessed in the absence of more detailed, valid, and representative data.
In this respect, the Chamber also considers a 10 percent safety margin on the values of Section 12 of the Housing Benefit Act (WoGG) to be appropriate (see also Lower Saxony-Bremen Higher Social Court, Decision of July 7, 2011 – L 9 AS 411/11 B ER; Lower Saxony-Bremen Higher Social Court, Decision of November 21, 2011 – L 11 AS 1063/11, B ER; Lower Saxony-Bremen Higher Social Court, Decision of August 12, 2011 – L 15 AS 173/11 B ER – with reference to the decision of the 7th Senate of the Lower Saxony-Bremen Higher Social Court of July 13, 2011 (L 7 AS 1258/09 B ER); Hildesheim Social Court, Decision of May 18, 2012 – S 15 AS 1355/11 PkH; Hildesheim Social Court, Judgment). Judgment of August 27, 2012 – S 37 AS 1354/11 –; Higher Social Court of North Rhine-Westphalia, Decision of May 9, 2011 – L 7 AS 165/11 B –; Social Court of Fulda, Judgment of January 27, 2010 – S 10 AS 53/09 –; Social Court of Karlsruhe, Judgment of March 29, 2010 – S 16 AS 1798/09 –; Social Court of Dresden, Judgment of December 21, 2010 – S 29 AS 6486/10 –; Social Court for the State of Saarland, Judgment of January 12, 2011 – S 12 AS 480/09 –; Social Court of Detmold, Judgment of April 4, 2011 – S 10 AS 54/08 -;SG Landshut, judgment of. February 7, 2012 – S 10 AS 294/11 -).
According to the criteria in the table pertaining to Section 12 of the Housing Benefit Act (WoGG), Bilshausen belongs to the municipalities with rents in category 1 (Göttingen district). For a four-person household, a maximum amount of €490.00 per month, including utilities but excluding heating, is stipulated. Increasing this amount by 10% results in a value of €539.00. The plaintiffs are therefore entitled to reimbursement of their share of the actual housing costs, amounting to an additional €36.75 per month.
The decision on costs is based on § 193 SGG.
The appeal was inadmissible.
Pursuant to Section 143 in conjunction with Section 144 Paragraph 1 of the Social Court Act (SGG), the required value in dispute of €750 for an appeal has not been reached.
The relevant case law of the higher courts does not provide for a fundamentally different ruling (§ 144 para. 2 no. 2 of the Social Court Act) regarding the question of whether a safety surcharge of 10 percent should also be granted on the values in the table to § 12 of the Housing Benefit Act (WoGG), nor can it be considered 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 Federal Social Court, judgment of May 25, 2011 – B 4 AS 29/11 B). Reference is made to the decisions already cited in this respect (cf. also Federal Social Court, judgment of December 17, 2009 – B 4 AS 50/09 R, cited according to juris, para. 27).
