VERDICT
In the legal dispute
1. xxx,
2. xxx,
3. xxx,
plaintiff,
proc.-prov.: for 1-3: lawyer Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
District xxx,
defendant,
The Hildesheim Social Court - 37th Chamber - recognized the following at the oral hearing on April 22, 2013 by the chairman, judge xxx and the honorary judges xxx and xxx:
1. The defendant's decision of October 15, 2012 in the form of the objection decision of November 9, 2012 in the version of the change decision of November 28, 2012 is amended.
2. The defendant is ordered to grant the plaintiffs a further €36.75 per month to cover the costs of accommodation and heating.
3. The defendant must reimburse the plaintiffs for the extrajudicial costs they incurred.
THE FACT
The parties involved are in dispute about the granting of higher costs for accommodation and heating (KdU) according to the Second Book of the Social Code (SGB II), in particular about the question of whether a 10% security surcharge should be granted when the housing benefit table is applied.
The plaintiffs, together with the wife of the first plaintiff, Ms. xxx, are currently receiving benefits in accordance with SGB II. During the period in question, they lived in a 120 square meter apartment in xxx in Bilshausen, which they moved into in April 2006 . The rent amounts to EUR 500.00 per month plus additional costs of EUR 70.00. The apartment is heated by a wood stove. Hot water is heated using electricity.
In a letter dated May 19, 2011, the defendant informed the first plaintiff that the KdU amount of €420.75 taken over with the decision of May 19, 2011 was only taken over on a temporary basis, based on a rental amount of €561.00 can be made, for a maximum of six months. In the case of the plaintiffs, for a four-person household in the Bislhausen area, an amount of €490.00 or, based on three people, a pro-rata amount of €367.50 and a living space of 85 square meters is considered appropriate .
By decision dated October 15, 2012, the defendant granted the plaintiffs and Ms. xxx benefits under 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 rental amount of €490.00, of which €367.50 was recognized as a proportionate requirement by plaintiffs 1 to 3.
On October 17, 2012, the plaintiffs filed an objection against this decision, which they justified by saying that if the defendant followed Section 12 of the Housing Benefit Act (WoGG), a security surcharge of 10% would have to be granted, so that the plaintiffs are entitled to a higher claim.
In an objection decision dated November 9, 2012, the defendant rejected the objection as unfounded. By resolution of December 15, 2010, the district council decided that for those entitled to benefits under SGB II from January 1, 2011, the housing benefit table that has been in effect since January 1, 2009 should be recognized to determine the adequacy limit for the KdU. Based on the housing benefit table, this would result in a value of €490.00 for four people, and €367.50 pro rata for three people.
On November 12, 2012, the plaintiffs filed a lawsuit before the Hildesheim Social Court in which they pursued the granting of higher KdU, taking into account a security surcharge of 10% in addition to the values of Section 12 WoGG.
The plaintiffs request that
the defendant, amending the defendant's decision of October 15, 2012 in the form of the objection decision of November 9, 2012 in the form of the amendment decision of November 28, 2012, be sentenced to pay the plaintiffs a further €36.75 per month towards the costs of Provide accommodation and heating.
The defendant requests
that the lawsuit be dismissed.
As justification, the defendant refers to a judgment of the Bremen Social Court dated November 4, 2011, Ref.: S 21 AS 2011/09, which shows that the Federal Social Court has not yet decided on the granting of a security supplement even in the case of Section 12 WoGG decided. The defendant assumes that, with regard to the plaintiff's place of residence, since the new values from Section 12 WoGG came into force on the housing market, there is definitely living space within the adequacy limits for KdU for a 4-person household in the area of the municipality as set out in the decisions at issue Bilshausen of €490.00 per month was available. This emerges from an evaluation by the defendant of advertisements from the newspapers “Göttinger Tageblatt”, “Hann.Mündener Allgemeine” and “Blick” (for further details in this regard, reference is made to page 42 of the case file). It also follows from the judgment of the BSG of December 20, 2011 - B 4 AS 19/11 R - that the BSG is not inclined to a moderate surcharge for the table values for § 12 WoGG, since the judgment literally says “these will then again limited by the table values for § 8 WoGG or now § 12 WoGG in the sense of an appropriateness limit.” From the wording in the BSG judgment it can be concluded that a surcharge should only be granted in addition to the table values for § 8 WoGG.
Because of the further details of the factual and disputed relationship as well as the arguments of those involved, reference is made to the defendant's administrative procedures and the case files that were available and were the subject of the decision-making.
REASONS FOR THE DECISION
The admissible action is well founded. The decision of October 15, 2012 in the form of the objection decision of November 9, 2012 in the version of the amendment decision of November 28, 2012 is unlawful and violates the plaintiffs' rights (Section 54 Paragraph 1, 2 of the Social Court Act (SGG)); In accordance with Sections 7, 19, 20, 22 SGB II, the plaintiffs have a further claim for the costs of accommodation and heating in the amount of EUR 36.75 per month during the period in question.
The community of needs is entitled to accommodation costs totaling EUR 539.00 for the period from November 1, 2012 to April 30, 2013 instead of the EUR 490.00 approved by the defendant. This results in the plaintiffs being entitled to a further EUR 36.75 per month.
A claim to cover the actual costs of accommodation does not initially arise from Section 22 Paragraph 1 Sentence 3 SGB II, according to which such expenses for accommodation that exceed the amount appropriate to the specifics of the individual case must be borne and are not possible or reasonable for the community of needs to reduce their expenses, but for a maximum of six months. The plaintiffs were aware at the latest from the decision dated December 2, 2011 that the defendant did not consider the plaintiffs' accommodation costs to be appropriate. In this decision he only recognized an amount of EUR 367.50 as reasonable accommodation costs, whereas in the decision under challenge here he considered an amount of EUR 490.00 to be appropriate. However, this deviation in favor of the plaintiffs does not mean that the defendant should first have addressed a new cost reduction request to them with regard to the amount that deviated in favor of the plaintiffs.
However, the basis for the claim for the plaintiffs' benefits is Section 22 Paragraph 1 Sentence 1 SGB II. According to this, the needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are appropriate.
According to the case law of the Federal Social Court (cf. judgment of November 7, 2006 - B 7b AS 18/06 R -), the appropriateness of the accommodation costs (including rent and additional costs) must be checked in several steps:
First of all, it is necessary to determine the size of the apartment rented by the person in need of help or by the community of needs. The size of the apartment must be based on the state guidelines on social housing support. The basis for determining the size of the apartment is Section 10 of the Housing Promotion Act of September 13, 2001 (WoFG, Federal Law Gazette 2376). According to this, states can regulate the recognition of certain limits for apartment sizes in subsidized rental apartments according to principles of appropriateness. The individual federal states issue guidelines. In Lower Saxony there is the guideline for the implementation of social housing support in Lower Saxony (housing support regulations - WFB -) from September 1st, 2011, valid from January 1st, 2012. According to Section B No. 7 a) of these regulations, a living space of 85 square meters is considered appropriate for rented apartments for four household members. The apartment inhabited by the plaintiffs is too large with an area of 120.00 square meters. It therefore depends on 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 appropriate living space and standard that is reflected in the apartment rent. The expenses for an apartment are only appropriate if it meets simple and basic needs in terms of furnishings, location and building structure and does not have a high standard of living. The apartment must therefore be in the lower segment of the size of the apartments in question in the spatial district that forms the comparison benchmark with regard to the criteria listed, the factors that form the rental price are regularly reflected in the price per square meter. As a spatial comparison standard, the place of residence of the person in need of help is primarily decisive, because moving to another place of residence, which would involve giving up the social environment, cannot usually be required of them (cf. BSG, judgment of November 7th, 2006 – B 7b AS 10/06 R -).
According to the case law of the Federal Social Court, the basic security provider must create a coherent concept which, according to the judgment of the said court of September 22, 2009 - B 4 AS 18/09 R - must have the following criteria:
• The data collection may only take place in the precisely defined area and must take place over the entire comparison area (no ghetto formation),
• A comprehensible definition of the object of observation is required, e.g. what type of apartments - differentiation according to the standard of the apartments, gross and net rent
, differentiation according to apartment size, • Information about the observation period,
• Determination of the method of data collection (sources of knowledge, e.g. rent index),
• Representativeness of the scope of the data collected,
• Validity of data collection,
• Compliance with recognized mathematical-statistical principles of data evaluation and
• Information about the conclusions drawn (e.g. upper clamping value or capping limit).
Such a coherent concept does not exist for the Bilshausen/Duderstadt/Göttingen area during the period in question. In particular, the defendant's evaluations of the advertisements in the newspapers “Göttinger Tageblatt”, “Hann. Mündener Allgemeine” and “Blick” neither meet the above requirements from the point of view of the representativeness of the data collected nor the validity of the data collection.
A rent index or a rental database that can be used in this case. S. of §§ 558c and 558d of the Civil Code (BGB) is also not available for Bilshausen.
In municipalities in which there is no rent index, it is permissible to use the right-hand column of the housing benefit table if the court has no other sources of knowledge or investigation options available to the local housing market (cf. 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 Niedersachsen-Bremen, judgment of April 24, 2007 - L 7 AS 494/05). That's how it is here. In particular, the newspaper advertisements collected by the defendant do not provide a sufficient additional source of knowledge in the sense mentioned above. In its decision of March 22, 2012, the Federal Social Court recognized that a security surcharge of 10 percent must be granted on the values in the right-hand column of Section 8 WoGG, which was valid until December 31, 2012. In this respect it stated:
“The meaning and purpose of the WoGG is not to assume full or a significant part of the rents for living space if the income law requirements are met (see Stadler/Gutekunst/Dietrich/Fröba, WoGG, Loseblatt, 65th Lfg May 2011, § 12 Paragraph 13). Rather, housing benefit is a subsidy towards the costs of living space (see Section 1 WoGG old version). The amount depends on the rent to be taken into account, the household members and the income. If the actual rent exceeds the amount set in Section 8 WoGG, the excess part is not taken into account when calculating housing benefit. However, the appropriate rent within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II must ensure that living space is available at the value deemed appropriate.
When determining the surcharge, it should therefore be noted that it is not a case-by-case application to a specific, actual situation, which is the responsibility of the LSG, taking into account the conditions of the regional housing market. Rather, it must be determined taking general, abstract criteria into account. Recourse to regional conditions is out of the question because it is precisely the loss of knowledge possibilities in the spatial comparison area that leads to the application of Section 8 WoGG. Due to the respective rent levels anchored in the WoGG, regional differences are taken into account when determining the packages to be taken over. In view of this, the Senate considers a surcharge of 10% for the table values in Section 8 WoGG (right column) to be appropriate, but also sufficient (see BSGE 97, 254 = SozR 4-4200 § 22 No. 3, RdNo. 23; also 10% affirmative: LSG Lower Saxony-Bremen judgment of April 24, 2007 - L 7 AS 494/05; judgment of March 11, 2008 - L 7 AS 332/07; LSG North Rhine-Westphalia judgment of May 26, 2010 - L 12 <20> SO 37/07; LSG Sachsen-Anhalt judgment of August 26, 2010 - L 5 AS 4/08; Hessian LSG judgment of December 20, 2010 - L 9 AS 239/08; LSG Sachsen Anhalt judgment of March 3, 2011 - L 5 AS 181/ 07; Schleswig-Holsteinisches LSG, judgment of September 30, 2011 - L 3 AS 17/09; LSG Berlin-Brandenburg judgment of December 8, 2011 - L 25 AS 1711/07)."
Against the background of these statements, the Chamber is convinced that due to the still unchanged different purpose of the now relevant Section 12 WoGG, a security surcharge of 10 percent is also appropriate and necessary. To the extent that there are occasional objections to a security surcharge that Section 12 WoGG now averts the “argumentatively invoked danger” that the values in Section 8 WoGG old cannot ensure the basic needs for securing living space, because Section 12 WoGG corresponds to the values in the right-hand column of § 8 WoGG old plus 10 percent (SG Bremen, judgment of November 4th, 2011 - S 21 AS 1011/09 cited according to juris, Rn. 19), the adjudicating chamber cannot follow this . The reasoning of the Bremen Social Court suggests that (sufficient) knowledge about the current rental housing market is available, which is currently not the case. In this respect, it is simply impossible to assess whether the values specified in Section 12 WoGG are sufficient. This is all the more true as the amounts in Section 8 WoGG old have remained unchanged since the standard came into force in 2005. It should also be noted with § 12 WoGG that it is not intended to cover the rent for living space in full or in large part if the income law requirements are met (BSG, judgment of March 22, 2012 - B 4 AS 16/11 R cit. according to jurisprudence). To the extent that the Bremen Social Court objects that a different treatment of housing benefit recipients and SGB II recipients appears “unacceptable” and that the recognition of a security surcharge also poses the risk that “landlords [...] will adhere to the applicable level of service providers “adapt”, these are political considerations (SG Bremen, judgment of November 4th, 2011 – S 21 AS 1011/09 quoted from juris, Rn. 20, 24). In addition, the latter thesis only applies if the amounts mentioned in Section 12 WoGG actually adequately reflect the current rents, which - as already stated - cannot be assessed with sufficient certainty in the absence of further valid and representative information.
In this respect, the Chamber also considers a 10 percent safety surcharge on the values of § 12 WoGG to be appropriate (see also LSG Niedersachsen-Bremen, decision of July 7, 2011 - L 9 AS 411/11 B ER -; LSG Niedersachsen-Bremen , resolution of November 21, 2011 - L 11 AS 1063/11 B ER -; LSG Niedersachsen-Bremen, resolution of August 12, 2011 - L 15 AS 173/11 B ER - with reference to the resolution of the 7th Senate of the LSG Niedersachsen-Bremen of July 13, 2011 (L 7 AS 1258/09 B ER); SG Hildesheim, decision of May 18, 2012 - S 15 AS 1355/11 PkH -; SG Hildesheim, judgment of August 27, 2012 - p 37 AS 1354/11 -; LSG North Rhine-Westphalia, decision of May 9, 2011 - L 7 AS 165/11 B -; SG Fulda, judgment of January 27, 2010 - S 10 AS 53/09 -; SG Karlsruhe , judgment of March 29, 2010 - S 16 AS 1798/09 -; SG Dresden, judgment of December 21, 2010 - S 29 AS 6486/10 -; SG for the state of Saarland, judgment of January 12, 2011 - S 12 AS 480/09 -; SG Detmold, judgment of April 4th, 2011 - S 10 AS 54/08 -; SG Landshut, judgment of February 7th, 2012 - S 10 AS 294/11 -).
According to the classification criteria in the table for Section 12 WoGG, Bilshausen is one of the municipalities with level 1 rents (Göttingen district). For a 4-person household, the maximum amount including additional costs without heating is €490.00 per month. Increasing the value by 10% results in a value of €539.00. The plaintiffs are therefore entitled to reimbursement of the proportionate accommodation costs actually borne by them in the amount of a further EUR 36.75 per month.
The cost decision is based on Section 193 SGG.
