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 – 43rd Chamber – rendered the following judgment in the oral proceedings of June 18, 2013, by the presiding judge, Judge xxx, and the lay judges xxx and xxx:
1. The decision of May 25, 2011, as amended by the decision on the objection of June 28, 2011, and further amended by the amending decision of November 3, 2011, is hereby modified. The defendant is ordered to grant the plaintiff additional housing costs in the amount of €181.80 for the period from June to November 2011.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
3. The appeal is admitted.
FACTS OF THE CASE
The parties are in dispute over the amount of the costs of accommodation (KdU) within the framework of basic income support benefits under the Second Book of the Social Code (SGB II) for the period from June to November 2011.
The plaintiff, born on [date redacted], was in need of assistance within the meaning of the German Social Code, Book II (SGB II), during the period in question and was receiving ongoing basic income support payments from the defendant. Until the end of October 2011, he lived in a 54-square-meter rented apartment in [location redacted] near Göttingen. His monthly housing costs amounted to €409.60. For further details, please refer to page 106 of the administrative file. During October 2011, the plaintiff moved to a rented apartment on [street redacted] in Göttingen. His housing costs there totaled €393.88 for November 2011.
By decision dated 25 May 2011, the defendant granted the plaintiff benefits for the period from June to November 2011. In doing so, he took into account monthly accommodation costs in the amount of EUR 292 (see page 116 of the administrative file).
The plaintiff filed an objection to this decision on May 30, 2011. He argued that higher housing costs should be granted. The defendant, he claimed, was apparently basing its assessment of reasonableness on the values in the table for Section 12 of the Housing Benefit Act (WoGG). However, in light of the case law of the Federal Social Court (BSG) and the Higher Social Court (LSG) of Lower Saxony-Bremen, a safety margin of 10% should be added to this monthly amount of €292.
By decision dated June 28, 2011, the defendant rejected the appeal as unfounded. Higher accommodation costs were not to be granted. For further details of the decision on the appeal, reference is made to pages 21 et seq. of the court file.
The plaintiff filed a lawsuit against this decision on June 29, 2011, with the Hildesheim Social Court (SG), supplementing and reinforcing his arguments from the objection proceedings. He argued that a safety margin of 10% should also be applied to the values in the table for Section 12 of the Housing Benefit Act (WoGG) applicable from January 1, 2009. Therefore, he claimed an entitlement to additional housing costs of €29.20 per month for the months of June through October 2011 and €35.80 per month for November 2011.
By amended decision dated November 3, 2011, the defendant adjusted the housing costs (KdU) granted to the plaintiff for the months of October and November 2011 due to the relocation and granted housing costs (KdU) in the amount of EUR 358 for the month of November 2011. For further details of the amended decision, reference is made to pages 38 et seq. of the court file.
The plaintiff requests
that the decision of 25 May 2011, as amended by the appeal decision of 28 June 2011 and the amending decision of 3 November 2011, be modified and that the plaintiff be granted further accommodation costs in the amount of 181.80 euros for the period from June to November 2011.
The defendant requests
that the action be dismissed.
He refers to the contested decisions. The requested 10% safety margin on the relevant values in the table for Section 12 of the Housing Benefit Act (WoGG) should not be granted. This cannot be inferred from the decisions of the Federal Social Court (BSG). Furthermore, it is unfair to treat recipients of benefits under Book II of the German Social Code (SGB II) and those receiving housing benefit differently. Since the introduction of the new table for Section 12 of the Housing Benefit Act (WoGG) on January 1, 2009, the safety margin required by the BSG is no longer necessary, as the increase in the respective table values eliminates the potential unfairness of a flat-rate calculation addressed by the BSG in its judgment of February 19, 2009 (B 4 AS 30/08 R).
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 action for annulment and performance is well-founded. The decision of May 25, 2011, as amended by the decision on the objection of June 28, 2011, and further amended by the decision of November 3, 2011, is unlawful and violates the plaintiff's rights pursuant to Section 54 Paragraph 2 of the Social Court Act (SGG).
During the period in dispute, he is entitled to further housing and heating costs in the amount of EUR 181.80.
Housing costs are reimbursed in the amount of the actual expenses, provided they are reasonable; see Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). If the housing costs exceed what is reasonable given the specific circumstances of the individual case, they are to be considered as part of the recipient's needs for as long as it is not possible or reasonable for the recipient to reduce the costs by moving, subletting, or otherwise, but generally for no longer than six months; Section 22 Paragraph 1 Sentence 2 of the SGB II. The assessment of reasonableness limits the amount of reimbursable costs (see Federal Social Court (BSG), Judgment of September 22, 2009, Case No. B 4 AS 18/09 R). "Reasonableness" is an indeterminate legal term that is subject to full judicial review (see Federal Social Court (BSG), Judgment of November 7, 2006, Case No. B 7b AS 10/06 R). According to established case law of the Federal Social Court (BSG), determining appropriateness of rent must be carried out in several stages. First, the abstractly appropriate size of the apartment and the relevant comparison area must be defined. In a further step, it must be determined how much one would have to spend on a basic-standard apartment on the housing market of the comparison area. The aim of this determination is to find the price per square meter for basic-standard apartments, which, according to the product theory, is to be multiplied by the appropriate square footage. The result is the regionally appropriate rent (see BSG, judgment of September 22, 2009, case no. 18/09 R).
During the period in dispute, the defendant initially, and without objection, relied on the values in the table pursuant to Section 12 of the Housing Benefit Act (WoGG) to determine the regionally appropriate abstract rent. If a so-called conclusive concept for determining the reasonable rent limit is not available, the values in the housing benefit table must be used (cf. BSG aa0).
Contrary to the defendant's opinion, a safety surcharge of 10% must also be granted on the values in the table to § 12 WoGG in this context, so that the plaintiff is entitled to further housing costs in the amount of EUR 29.20 for the months of June to October 2011 and EUR 35.80 for November 2011 during the period in dispute.
However, this does not follow from the Federal Social Court's (BSG) statements in its judgment of December 17, 2009 (B 4 AS 50/09 R). These statements refer only to the values of the table valid until December 31, 2008, for Section 8 of the Housing Benefit Act (WoGG) and make no statement regarding the legal situation from January 1, 2009. This is further supported by the fact that this legal question is currently pending before the Federal Social Court (B 4 AS 87/12 R).
Nevertheless, the Chamber is convinced that such a supplement should also be granted on the table values pursuant to Section 12 of the Housing Benefit Act (WoGG). In this respect, the Chamber concurs with the opinion of the Higher Social Courts of Lower Saxony-Bremen (decision of April 6, 2011 – L 7 AS 222/11 B ER – and of January 4, 2012 – L 11 AS 653/11 B ER) and Baden-Württemberg (judgment of November 7, 2012, L 3 AS 5600/11).
It is crucial to understand that the determination of the supplement is not a case-by-case decision based on the specific circumstances, but rather is established by the Federal Social Court (BSG) taking into account abstract criteria. Furthermore, according to the relevant BSG ruling, the supplement to the values in the table for Section 8 of the Housing Benefit Act (WoGG) should not be intended to compensate for any subsequent inflation. Instead, the purpose of the supplement should be to offset potential uncertainties and thus protect the fundamental need of those requiring assistance to secure their housing.
Despite the increase in the values in the housing benefit table on 1 September 2009, the Chamber is convinced that such a supplement should still be granted.
The decision on costs follows from § 193 SGG.
The appeal was admissible pursuant to Section 144 Paragraph 2 No. 1 of the Social Court Act (SGG), as the legal matter is of fundamental importance.
The following is information on legal remedies.
