VERDICT
In the legal dispute
xxx,
plaintiff,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant,
The 31st Chamber of the Social Court of Hildesheim, without oral proceedings, rendered the following judgment on June 26, 2013, through the presiding judge, Judge xxx, as well as the lay judges Ms. xxx and Mr. xxx:
1. The defendant is ordered, by amending the decision of 16 August 2011 as amended by the decision of 7 September 2011 and as modified by the appeal decision of 27 September 2011, to grant the plaintiff further benefits for the period 1 September to 30 November 2011 towards the costs of accommodation and heating in the amount of EUR 38.80 per month, i.e. a total amount of EUR 116.40.
2. The defendant shall bear the plaintiff's costs.
3. The appeal is not admitted.
FACTS OF
The plaintiff seeks higher accommodation costs.
The plaintiff, born on [date redacted], receives benefits from the defendant under Book Two of the German Social Code (SGB II). Until July 31, 2011, he resided in a 35 sq m, two-room apartment in [location redacted] in Hann. Münden. The monthly rent amounted to €175.00 (gross rent excluding utilities) plus €18.00 for utilities. The monthly heating cost prepayment was €39.00.
By judgment of the Hann. Münden District Court of 19 November 2010 (3 C 227/10), the plaintiff was ordered to vacate his apartment in xxx and hand it over to his then landlord.
On August 1, 2011, the plaintiff rented a two-room apartment of approximately 61 square meters in [address redacted] in Hann. Münden. The monthly rent, including utilities (excluding heating), amounts to €340.00 (€280.00 gross rent, €60.00 advance payment for utilities). In addition, the plaintiff paid a monthly advance payment of €10.00 for water and €70.00 for gas to the Hann. Münden utility company. The plaintiff's apartment is heated by a gas heating system, which also provides hot water.
By decision dated July 29, 2011, the defendant had already rejected the plaintiff's request to cover the actual accommodation costs and the expenses associated with the move. While the move from [address redacted] to [address redacted] was necessary because the plaintiff was facing eviction from his current apartment, approval or a commitment could not be granted because the accommodation costs for Siebenturmstraße, at €340.00 per month, were unreasonably high. Only an amount of €308.00 per month was eligible for coverage.
By (amended) decision dated August 16, 2011, the defendant granted the plaintiff benefits to secure his livelihood for the period from September 1 to November 30, 2011. He included a total of €300.00 per month for housing costs (€240.00 gross rent, €60.00 advance payment for utilities). In addition, he granted €8.00 under the heading "Utility costs for hot water.".
By further amendment notice dated 7 September 2011, the defendant granted the plaintiff benefits for the period 1 August 2011 to 30 November 2011. In doing so, he took into account the gross rent of EUR 230.00 and the advance payment for ancillary costs of EUR 60.00, as well as an amount of EUR 8.00 under "share of ancillary costs for hot water", an advance payment for heating costs of EUR 62.00 and a further EUR 10.00 as a down payment for water.
The defendant rejected the objection raised against this decision by means of a formal notice of rejection dated September 27, 2011. The setting of the reasonable limit at EUR 308.00 per month was deemed acceptable. For further details, reference is made to the explanations in the notice of rejection.
The plaintiff filed suit on October 5, 2011.
In the absence of a conclusive concept for the period in dispute, the values in Section 12 of the Housing Benefit Act (WoGG) must be used to determine the appropriateness of the accommodation costs. These values must be increased by a safety margin of 10 percent.
The plaintiff requests
that the defendant, by amending the decision of 16 August 2011 (file no.: 22.7.2023008) as amended by the appeal decision of 27 September 2011 (file no.: 56.1/2011-6540), be ordered to grant the plaintiff further costs of accommodation and heating in the amount of EUR 30.80 per month, i.e. a total of EUR 92.40.
The defendant requests
that the action be dismissed,
or alternatively, that leave to appeal be granted.
and refers in support of its position to the explanations in its notice of objection as well as to the explanations of the Social Court of Bremen in its judgment of 04.11.2011 (Case No.: S 21 AS 1011/09).
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 court may decide without an oral hearing pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), as the parties have agreed to this procedure by letter dated January 24, 2013 and February 1, 2013 respectively.
The admissible action is well-founded. The defendant's decision of August 16, 2011, as amended by the decision on the objection of September 27, 2011, 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 claim for the costs of accommodation and heating in the amount of EUR 38.80 per month for the period in dispute.
I.
The subject of the dispute is the defendant's decision of 16 August 2011 as amended by the decision on the objection of 27 September 2011, i.e. the period 1 September - 30 November 2011.
II.
The plaintiff is entitled to benefits pursuant to Section 7 Paragraph 1 of the German Social Code, Book II (SGB II). The plaintiff, born in 1956 and residing in Germany, has reached the age of 15 and has not yet reached the age limit according to Section 7a, is capable of working, and is in need of assistance within the meaning of Section 9 of the SGB II.
III.
The plaintiff is entitled to higher benefits for accommodation and heating costs. Pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), 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 on social housing subsidies in Lower Saxony (Housing Subsidy Regulations – WFB –) of August 1, 2008, apply. According to Section B 11.2 of these regulations, a living space of 50 square meters is considered appropriate for a one-person household. The apartment occupied by the plaintiff, with a floor area of approximately 61 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:
o Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization);
o 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
o Information about the observation period,
o Determination of the method of data collection (sources of information, e.g. rent index),
o Representativeness of the scope of the data collected,
o Validity of the data collection,
o Compliance with recognized mathematical-statistical principles of data evaluation and
o Information about the conclusions drawn (e.g. upper limit of range or capping limit).
No such conclusive concept exists for the Hann. Münden area during the period in question. 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 Hann. Münden.
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 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. The finding of the absence of a coherent concept in a specific comparison area and the finding of the local lack of information are inseparable (Social Court [SG], judgment of December 11, 2012 – B 4 AS 44/12 R, cited according to juris, para. 18). 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, 2008. 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 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 ensure that housing is available at the value deemed 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 spatial 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%: 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 2012 – 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 2002. 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 creates the risk that "landlords [...] will adjust themselves to the prevailing level of the benefit providers" (Bremen Social Court, Judgment of November 4, 2011 – S 21 AS 1011/09 –, cited according to juris, paras. 20, 24), these are political considerations. 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), Hann. Münden is classified as a municipality with rents in category 2. For a one-person household, a maximum amount of €308.00 per month, including utilities but excluding heating, is provided. An increase of 10% results in a maximum of €338.80. The defendant, in its most recent decision dated September 7, 2011, only covered €300.00 of the housing costs (€230.00 rent, €60.00 utilities, €10.00 water prepayment). The plaintiff is therefore entitled to the reimbursement of an additional €38.80 per month for housing costs, totaling €116.40.
This is not contradicted by Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), according to which, in the case of an unnecessary move, reasonable expenses for accommodation and heating costs are only to be recognized up to the amount of the previous need. Because of the threatened eviction from his apartment, the plaintiff's move to other accommodation was necessary – this is also undisputed between the parties (see the defendant's decision of July 29, 2011).
IV. The defendant assumed the heating cost prepayment in the amount of EUR 70.00 by means of an amended notice dated 07.9.2011, and thus in the actual amount (EUR 62.00 heating cost prepayment, EUR 8.00 “additional costs share hot water”).
V. The decision on costs is based on § 193 SGG.
VI. The appeal was inadmissible.
According to § 143 in conjunction with § 144 para. 1 SGG, the required value of the appeal of €750 is not 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).
The following is information on legal remedies.
