VERDICT
In the legal dispute
xxx,
plaintiff,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
Defendant,
The Social Court of Hildesheim – 37th Chamber – without oral proceedings, on May 17, 2013, through the presiding judge, Judge xxx, and the lay judges xxx and xxx, rendered the following judgment:
The defendant is ordered, with amendment to the decision of 12 June 2012 as modified by the appeal decision of 5 September 2012, to grant the plaintiff further costs for accommodation and heating in the amount of €35.80 per month for the period from 1 July to 31 December 2012.
The defendant must reimburse the plaintiff for her extrajudicial costs.
FACTS OF THE CASE
The plaintiff seeks higher benefits for the costs of accommodation and heating (KdU) for the period from 1 July to 31 December 2012 according to the Second Book of the Social Code (SGB II).
The plaintiff is currently receiving benefits under the German Social Code, Book II (SGB II), and has lived for years in a 54 sq m apartment in [address redacted] in Göttingen. Her gross rent (excluding utilities) was €440.51, and she paid a monthly advance of €74.70 for heating costs during the benefit period. The apartment is heated by a gas boiler. Hot water is supplied by the gas boiler and – in the kitchen – by an instantaneous water heater.
The defendant informed the plaintiff as early as 2004 that her housing costs were unreasonable.
By decision dated June 12, 2012, the City of Göttingen granted the plaintiff benefits for the period from July 1 to December 31, 2012. In doing so, it took into account an amount of €423.45 for housing costs (gross rent excluding utilities of €358.00 and heating costs of €65.45). The defendant also granted an additional allowance of €8.60 for hot water.
On June 22, 2012, the plaintiff filed an objection to the decision of June 12, 2012 (see page 660 of the administrative file). In support of her objection, she argued that a safety margin of 10 percent should be granted on the values from the housing benefit table pursuant to Section 12 of the Housing Benefit Act (WoGG) used by the defendant. Since the plaintiff uses a gas boiler, the electricity costs required to operate the boiler should be covered as heating costs. Furthermore, it should be taken into account that the plaintiff uses an instantaneous water heater in the kitchen.
By partial remedy and appeal decision dated September 5, 2012, the defendant overturned the City of Göttingen's decision of June 12, 2012, insofar as it granted the plaintiff an additional €1.38 towards her housing costs for the period from July 1, 2012, to December 31, 2012, and otherwise dismissed the appeal as unfounded. The partial remedy resulted from the fact that the reasonable heating costs for the period amounted to €66.82 instead of the previously granted €65.45. For the calculation, €14.70/m²/year was to be used as a reasonable value, resulting in this figure for a 50 m² apartment and 11 monthly installments. Costs exceeding this value, such as electricity costs for operating the gas boiler, could not be covered.
The plaintiff, represented by counsel, filed a lawsuit against this decision on September 24, 2012, with the Hildesheim Social Court. She argued that the defendant should grant a security surcharge of 10 percent on the gross rent (excluding utilities).
The plaintiff initially submitted a written request
to order the defendant, by amending the defendant's decision of June 12, 2012, as modified by the appeal decision of September 5, 2012, to grant the plaintiff the requested benefits monthly in the statutory amount, taking into account the legal opinion of the court.
In a letter dated November 19, 2012, the plaintiff's attorney stated that the costs of the heating were undisputed.
The defendant requests
that the action be dismissed.
In support of his claims, he refers to his decisions and justifications issued in the administrative proceedings.
For further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative file, which were submitted to the court and formed the basis of the decision.
REASONS FOR THE DECISION
The admissible claim is well-founded.
The court interprets the plaintiff's declaration by her legal representative of November 19, 2012, stating that the heating costs are undisputed, as a partial withdrawal of the claim insofar as, instead of the reimbursement of the actual heating costs of €74.70 requested in the statement of claim of September 24, 2012, only the €66.82 granted by the defendant were now being sought, and the claim regarding the reimbursement of housing costs up to the limit of the values in the housing allowance table plus a safety margin of 10 percent thereon was to be maintained.
The claim, understood in this way, is justified.
The decision of June 12, 2012, as amended by the appeal decision of September 5, 2012, is unlawful and infringes the plaintiff's 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 plaintiff has a further entitlement to housing costs in the amount of €35.80 per month, totaling €214.80, for the period in dispute from July 1 to December 31, 2012.
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 not possible or reasonable for the household to reduce its expenses, but for a maximum of six months. The plaintiff was aware, based on the letter from the Employment Agency in 2004 and the subsequent benefit decisions by the defendant, that the defendant did not consider the plaintiff's housing costs to be appropriate.
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 refer to the right-hand column of the housing benefit table if the court has no other sources of information or investigative means 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 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 guarantee that housing is available at the value considered appropriate.".
When determining the supplement, it is therefore important to note that this is not a case-by-case application to a specific, factual situation, which the Higher 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 context. Regional differences are already incorporated into the determination of the housing costs to be covered through the respective rent levels established 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), Göttingen belongs to the municipalities with rents in category 4. For a one-person household, a maximum amount of €358.00 per month, including utilities but excluding heating, is provided. Increasing this amount by 10% results in a value of €393.80. The plaintiff is therefore entitled to reimbursement of an additional €35.80 per month towards her accommodation costs.
No decision had to be made regarding any further claim by the plaintiff, as the plaintiff limited the legal dispute concerning heating costs to the amounts assumed by the defendant.
The plaintiff's claim was not to be reduced in this case due to the additional needs allowance granted by the defendant by the amount of €8.60, since the plaintiff prepares the hot water decentrally, at least in the kitchen, by means of an instantaneous water heater and the determination of the proportionate hot water costs pursuant to Section 21 Paragraph 7 Sentence 2, 2nd half-sentence of the German Social Code, Book II (SGB II) was not possible.
The decision on costs is based on Section 193 of the Social Court Act (SGG). It takes into account that the plaintiff's loss rate of 18 percent (7.88 € compared to 43.68 € originally sought) due to her withdrawal of the action is still within a range where the defendant's assumption of costs is reasonable given the plaintiff's overwhelming success.
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