VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant –
The 16th Chamber of the Social Court of Hildesheim, without oral proceedings, rendered the following judgment on December 12, 2013, through Judge xxx, Lay Judge xxx and Lay Judge xxx:
1. The defendant is ordered, by amending the decision of May 11, 2012, as modified by the partial remedy and objection decision of June 8, 2012, to grant the plaintiff additional monthly housing costs in the amount of €35.80, totaling €214.80, for the period from June 1, 2012 to November 30, 2012.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
3. The appeal is admitted.
FACTS OF THE CASE
The plaintiff seeks higher benefits for the costs of accommodation and heating under the Second Book of the Social Code (SGB II) for the period from June to November 2012 inclusive.
During the period in question, the plaintiff resided in a 57.30 square meter apartment in Göttingen, for which a monthly rent of €320.88 and advance payments of €73.00 for utilities were payable. Hot water was supplied both by the heating system and by an additional electric appliance.
By decision dated 11 May 2012, the city of Göttingen granted the plaintiff benefits to secure his livelihood for the period from 1 June 2012 to 30 November 2011 in accordance with the German Social Code, Book II (SGB II), of which €349.40 was for housing costs and €53.40 was for heating costs.
By letter dated May 22, 2012, the plaintiff, represented by counsel, filed an objection to the decision of May 11, 2012, seeking higher benefits for accommodation and heating. The defendant, in assessing the appropriateness of the benefits, was evidently basing its calculations on the values in the table for Section 12 of the Housing Benefit Act (WoGG). However, a safety margin of 10 percent should be added to the monthly amount, taking into account the case law of the Federal Social Court (BSG) and the Higher Social Court (LSG) of Lower Saxony-Bremen. Furthermore, the plaintiff partially heats his hot water using an instantaneous water heater. The operating electricity for the gas boiler, which likely amounts to five percent of the monthly heating costs, must also be considered.
In response to the objection, the defendant issued a partial remedy and objection decision dated June 8, 2012, which granted the objection insofar as the plaintiff was awarded €358.00 for housing costs and additional ancillary costs for the electrically operated heating system in the amount of €3.10 per month for the period from June 1, 2012 to November 30, 2011, amending the original decision in dispute, and the objection was otherwise rejected.
The plaintiff, represented by counsel, filed a lawsuit with the Hildesheim Social Court (SG) on June 13, 2012, supplementing and reiterating his arguments from the objection proceedings. He argued that the expert opinion from company xxx did not meet the requirements of the Federal Social Court for a so-called "conclusive concept," meaning that the defendant was unable to determine the reasonable housing costs as required by Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). In the absence of any other indications, he was therefore entitled to housing costs based on the values specified in Section 12 of the Housing Benefit Act (WoGG), increased by a 10 percent safety margin. A 10 percent safety margin was also to be applied to the values in the table for Section 12 WoGG that had been in effect since January 1, 2009. Thus, he was entitled to an additional housing cost allowance of €35.80 per month for the months of June through November.
The plaintiff requests
that the defendant, by amending the decision of May 11, 2012 as modified by the appeal decision of June 8, 2012, be ordered to grant the plaintiff an additional €35.80 per month for accommodation costs, totaling an additional €214.80.
The defendant requests
that the action be dismissed.
He first refers to the contested decision. The requested 10 percent 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 Federal Social Court (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).
The parties involved have agreed to a decision without oral proceedings.
For further details of the facts and the legal arguments, reference is made to the contents of the court files and the administrative files of the defendant.
REASONS FOR THE DECISION
The chamber was able to decide without an oral hearing because the parties had agreed to this, § 124 para. 2 Social Courts Act (SGG).
The admissible action for annulment and performance is well-founded. The decision of May 11, 2012, as amended by the partial remedy and objection decision of June 8, 2012, 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 utilities allowances in the amount of €214.80.
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; see 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 – B 4 AS 18/09 R). The concept of "appropriateness" is an indeterminate legal term subject to full judicial review (see Federal Social Court [BSG], judgment of November 7, 2006 – B 7b AS 10/06 R). According to established case law of the BSG, determining appropriateness must be carried out in several stages. First, the abstractly appropriate apartment size and the relevant comparison area must be defined. In a further step, it must be determined how much can be spent on the housing market of the comparison area for an apartment of basic standard. The aim of this determination is the price per square meter for apartments of basic standard, which is then multiplied by the appropriate square footage according to the product theory. The result is the regionally appropriate rent (see BSG, judgment of September 22, 2009 – 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 margin of 10 percent 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 €35.80 each for the months of June to November 2012 in the period in dispute here.
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.
Based on Section 12 of the Housing Benefit Act (WoGG), plus a 10 percent surcharge, the eligible costs for the period in dispute amount to €393.80 per month, so that, taking into account the €358.00 already granted per month, the defendant has to bear further accommodation costs of €35.80, thus a total of €214.80 in the six-month period in dispute.
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.
