VERDICT
In the legal dispute between
1. xxx,
2. xxx,
3. xxx,
Plaintiffs,
Legal Representative: for 1-3: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
Defendant,
The Social Court of Hildesheim – 37th Chamber – rendered the following judgment in the oral proceedings of April 22, 2013, through the presiding judge, Judge xxx, and the lay judges xxx and xxx:
1. The defendant's decision of October 15, 2012, as amended by the decision on the objection of November 9, 2012, and by the amending decision of November 28, 2012, is hereby amended.
2. The defendant is ordered to pay the plaintiffs an additional €36.75 per month towards the costs of accommodation and heating.
3. The defendant shall reimburse the plaintiffs for their incurred extrajudicial costs.
FACTS OF THE CASE
The parties are in dispute over the granting of higher costs for accommodation and heating (KdU) under the Second Book of the Social Code (SGB II), in particular over the question of whether a 10% safety supplement should be granted when applying the housing benefit table.
The plaintiffs, together with the wife of the first plaintiff, Ms. xxx, are currently receiving benefits under the German Social Code, Book II (SGB II). During the period in question, they resided in a 120 sq m apartment at xxx in Bilshausen, which they moved into in April 2006. 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 letter dated May 19, 2011, the defendant informed the first plaintiff that the housing costs allowance of €420.75, which had been granted by the decision of May 19, 2011, based on a rent of €561.00, could only be granted temporarily, for a maximum of six months. In the plaintiffs' case, for a four-person household in the Bislhausen area, an amount of €490.00, or, based on three persons, a pro rata amount of €367.50, and a living space of 85 square meters, was considered appropriate.
By decision dated October 15, 2012, the defendant granted the plaintiffs and Ms. xxx benefits under the German Social Code, Book II (SGB II), in the amount of €1,408.40 for the period from November 1, 2012, to April 30, 2013. He took into account a reasonable rent of €490.00, of which €367.50 was recognized as the proportionate need of plaintiffs 1 to 3.
The plaintiffs filed an objection to this decision on October 17, 2012, arguing that if the defendant based its decision on Section 12 of the Housing Benefit Act (WoGG), a safety supplement of 10% should be granted, so that the plaintiffs were entitled to a higher amount.
By decision dated November 9, 2012, the defendant rejected the objection as unfounded. By resolution of December 15, 2010, the district council had decided that, for those entitled to benefits under the German Social Code, Book II (SGB II), the housing allowance table in effect since January 1, 2009, should be recognized as the basis for determining the reasonable limit for housing costs, effective January 1, 2011. Based on the housing allowance table, this results in a value of €490.00 for four persons, and a pro rata share of €367.50 for three persons.
On November 12, 2012, the plaintiffs filed a lawsuit before the Hildesheim Social Court, seeking to pursue the granting of higher housing costs, taking into account a safety supplement of 10% to the values of Section 12 of the Housing Benefit Act (WoGG).
The plaintiffs request that
the defendant, by amending the defendant's decision of October 15, 2012, as amended by the objection decision of November 9, 2012, as amended by the amending decision of November 28, 2012, be ordered to grant the plaintiffs a further €36.75 per month towards the costs of accommodation and heating.
The defendant requests
that the action be dismissed.
In support of his position, the defendant refers to a judgment of the Bremen Social Court of November 4, 2011, file number S 21 AS 2011/09, which indicates that the Federal Social Court has not yet ruled on the granting of a safety supplement, even in cases under Section 12 of the Housing Benefit Act (WoGG). The defendant assumes that, with regard to the plaintiffs' place of residence, since the new rates under Section 12 WoGG came into effect, housing within the reasonable limits for housing costs (KdU) for a four-person household in the municipality of Bilshausen, as stipulated in the contested decisions, has indeed been available on the housing market. This limit is €490.00 per month. The defendant bases this conclusion on an analysis of advertisements in the newspapers "Göttinger Tageblatt," "Hann.Mündener Allgemeine," and "Blick" (for further details, please refer to page 42 of the case file). Furthermore, the judgment of the Federal Social Court (BSG) of December 20, 2011 – B 4 AS 19/11 R – indicates that the BSG is not inclined to a moderate surcharge on the table values for Section 12 of the Housing Benefit Act (WoGG), as the judgment states verbatim that "these are then in turn limited upwards by the table values for Section 8 WoGG or now Section 12 WoGG in the sense of an upper limit of appropriateness." It can be concluded from the wording in the BSG's judgment that a surcharge should only be granted on top of the table values for Section 8 WoGG.
For further details of the facts and the legal arguments, as well as the submissions of the parties, reference is made to the defendant's administrative records and the case file, which were available and formed the basis of the decision-making process.
REASONS FOR THE DECISION
The admissible action is well-founded. The decision of October 15, 2012, as amended by the decision on the objection of November 9, 2012, and further amended by the decision of November 28, 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 November 1, 2012 to April 30, 2013, 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 case law of the Federal Social Court (see judgment of 07.11.2006 – B 7b AS 18/06 R -), the appropriateness of the 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 receiving benefits. The size of the apartment must be determined according to the state-level guidelines on social housing subsidies. The basis for determining the 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 for the implementation of social housing subsidies in Lower Saxony (Housing Subsidy Regulations – WFB –) of September 1, 2011, 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 rental apartments for four household members. The apartment occupied by the plaintiffs, with a floor area of 120 square meters, is too large. Therefore, the crucial question is whether the rent is reasonable 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 regarding 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, further 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 regard, 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/Fröba, WoGG, loose-leaf edition, 65th supplement, May 2011, § 12, marginal note 13). Rather, housing benefit is a subsidy towards 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 rent deemed appropriate within the meaning of § 22 para. 1 sentence 1 SGB II must ensure that housing is available at the value considered appropriate.".
When determining the surcharge, it is therefore important to note that this is not a case-by-case application to a specific, factual situation, which the Regional Social Court (LSG) is responsible for considering 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 Benefit Act (WoGG) only arises when there is no way to ascertain the relevant regional comparison area. Regional differences are already incorporated into the determination of the surcharge 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%: LSG Lower Saxony-Bremen judgment of 24 April 2007 – L 7 AS 494/05; judgment of 11 March 2008 – L 7 AS 332/07; LSG North Rhine-Westphalia judgment of 26 May 2010 – L 12 <20> SO 37/07; LSG Saxony-Anhalt judgment of 26 August 2010 – L 5 AS 4/08; Hessian LSG judgment of 20 December 2010 – L 9 AS 239/08; LSG Saxony-Anhalt judgment of 3.3.2011 – L 5 AS 181/07; Schleswig-Holsteinisches LSG, Judgment of 30.9.2011 – L 3 AS 17/09; LSG Berlin-Brandenburg Judgment of 8.12.2011 – L 25 AS 1711/07)..“
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 maximum 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.
