COURT RULING
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx represented by xxx,
– Defendant –
The 39th Chamber of the Social Court of Hildesheim, on December 23, 2013, pursuant to Section 105 of the Social Courts Act (SGG), rendered the following judgment through Judge xxx:
1. The defendant is ordered, with partial amendment of his decision of 16 September 2011 as amended by the appeal decision of 16 January 2012, to grant the plaintiff further benefits in the amount of EUR 23.88.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS OF THE CASE
The parties are in dispute over the benefits to which the plaintiff is entitled for the period from August 1, 2011 to January 31, 2012.
The plaintiff, born in 19xx, lives in xxx with her children xxx and xxx, born in 2006 and 2007, and received supplementary benefits from the defendant under Book Two of the German Social Code (SGB II) during the period in dispute. Her monthly housing and heating costs amounted to €309.48 basic rent plus €149.60 utilities plus €64.10 heating costs.
The plaintiff began an apprenticeship on August 1, 2010, which she continued throughout the period in dispute. She received a gross apprenticeship allowance of €704.00 (€558.88 net) and, based on a decision by the Federal Employment Agency, vocational training assistance in the amount of €408.00 per month pursuant to Sections 59 et seq. of the German Social Code, Book II (SGB II). Therefore, the plaintiff ceased to be eligible for benefits under SGB II pursuant to Section 7 Paragraph 5 of the SGB II from that point onward. Consequently, her entitlement was governed by Section 27 of the SGB II. Benefits were subsequently granted to the plaintiff and her children, with the plaintiff only being entitled to the additional needs allowance pursuant to Section 27 of the SGB II in conjunction with Section 21 of the SGB II.
The plaintiff submitted a follow-up application for herself and her children on July 27, 2011. By decision dated September 16, 2011, the defendant granted the plaintiff benefits for the period from August 1, 2011, to January 31, 2012. The total needs of the household were calculated at €885.66 (standard benefit: €430.00; share of hot water costs for central heating: €4.00; single parent allowance for the plaintiff: €110.46; rent: €309.48; utilities: €149.60; heating costs: €52.70). The children's needs each consisted of €215.00 standard benefit, €2.00 share of hot water costs, €103.16 share of rent, €49.87 share of utilities, and €17.57 share of heating costs. Based on these calculations, the children received no benefits; the defendant explained that their combined income of €184.00 each in child benefit, €133.00 in child support payments (UVG), and €74.33 in housing benefit (WoGG) exceeded their needs. After offsetting this income against the children's benefit entitlements, a balance of €3.73 per child remained, so the defendant credited the plaintiff with the excess income of €7.46. From this, the defendant calculated the plaintiff's needs to be €103.00.
The plaintiff, through her out-of-court legal representative, filed an objection to this decision on October 4, 2011. She argued that the children's excess income was being counted towards her benefits without deducting the insurance allowance of €30.00. This, she claimed, was legally incorrect.
By decision dated January 16, 2012, the defendant rejected the plaintiff's appeal. The plaintiff receives benefits pursuant to Section 27 of the German Social Code, Book II (SGB II), in conjunction with Section 21 Paragraph 3 of the SGB II. According to Section 11 Paragraph 1 Sentence 1 of the SGB II in conjunction with Section 11b of the SGB II, deductions must be made from her income. The plaintiff's income amounts to €704.00 gross or €558.88 net. From this, amounts pursuant to Section 11b Paragraphs 1 and 6 of the SGB II (€100.00 and €120.82) must be deducted. The amount of €100.00 pursuant to Section 11b Paragraph 2 of the SGB II includes the insurance allowance of €30.00. Therefore, no further deduction is permissible.
The plaintiff filed suit before the Hildesheim Social Court on January 25, 2012. She argued that there was no excess income of the children that should be deducted from her benefits. She stated that the vocational training allowance of €146.60 was being credited against her needs. However, she asserted that of the total €406.00 granted, €130.00 should be deducted for childcare according to Section 68 Paragraph 3 of the German Social Code, Book III (SGB III). She further argued that the so-called training-related needs were apparently not being taken into account. Moreover, she claimed that the heating cost calculation for the children was incorrect: only €52.10 had been included in the calculation, although the actual heating costs were €64.70. She also alleged that a hot water allowance of €8.00 had been deducted for her benefit according to Section 21 Paragraph 7 Sentence 2 Number 1 of the German Social Code, Book II (SGB II), before the children's entitlements were calculated. However, Section 21 Paragraph 7 Sentence 2 Number 1 of the German Social Code, Book II (SGB II) only applies to households where hot water is heated by devices installed in the accommodation, which is not the case here. Had the defendant divided the heating costs into thirds according to the actual amount, a higher share would have been allocated to the children, with the consequence that only an income surplus of €1.74 per child would have been taken into account.
The plaintiff requests
that the defendant, by amending the decision of September 16, 2011 as modified by the appeal decision of January 16, 2012, be ordered to grant the plaintiff the requested benefits in the legally prescribed amount, taking into account the legal opinion of the court.
The defendant requests
that the action be dismissed.
The defendant maintains that the heating costs were correctly reimbursed. The defendant states that, even with central hot water heating, the hot water portion is always deducted from the heating costs. The costs of hot water heating are only reimbursed to the extent that they are reasonable. Since there is no established standard for what constitutes reasonableness, the defendant applies the additional needs allowances specified in Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), by analogy. In calculating the plaintiff's needs, the defendant deducts this additional needs allowance from the heating costs and lists it as an additional hot water expense. Because the additional needs allowances specified in Section 21 Paragraph 7 of the SGB II vary in amount, the plaintiff's minor children receive a smaller share than the plaintiff herself. As a result, the total heating costs are reimbursed, but the amounts reimbursed differ for the plaintiff and her children based on the aforementioned calculations.
The court heard the parties at the hearing on October 25, 2013, to discuss the factual and legal situation regarding the intended decision by court order pursuant to Section 105 of the Social Courts Act (SGG). Reference is made to the minutes of the hearing.
REASONS FOR THE DECISION
The legal dispute will be decided by court order pursuant to Section 105 Paragraph 1 of the Social Court Act (SGG) after hearing the parties involved and without oral proceedings, because the facts are clear and the case does not present any particular difficulties of a legal or factual nature.
The defendant's decision of April 17, 2012, as amended by the decision on the objection of June 6, 2012, is partially unlawful and infringes the plaintiff's rights insofar as it takes into account excess income of the plaintiff's children as reducing her need for assistance.
1.
According to Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits under this book are granted to persons who
1. have reached the age of 15 and have not yet reached the age limit according to Section 7a,
2. are capable of working,
3. are in need of assistance and
4. have their habitual residence in the Federal Republic of Germany (employable persons in need of assistance).
According to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), trainees whose training is eligible for funding under the Federal Training Assistance Act (BAföG) or Sections 60 to 62 of Book III of the German Social Code (SGB III) are not entitled to benefits to secure their livelihood beyond the benefits provided under Section 27. According to Section 27 Paragraph 2 of the SGB II, trainees as defined in Section 7 Paragraph 5 of the SGB II receive benefits, including the additional needs allowances under Section 21 Paragraphs 2, 3, 5, and 6 of the SGB II, insofar as these additional needs are not covered by income or assets that must be taken into account. In this context, the excess income of those persons with whom the trainee lives in a household is to be considered as reducing the trainee's needs allowance in accordance with the general provisions (see Bernzen in Eicher, SGB II – Commentary, 3rd edition, Section 27, marginal note 35).
The defendant (correctly and indisputably between the parties) granted the plaintiff only additional needs as a single parent pursuant to Section 21 Paragraph 3 of the German Social Code, Book II (SGB II). The parties also agree that any excess income of the plaintiff's children must, in principle, be taken into account as reducing her needs.
2.
In the present case, the defendant deducted excess income of the plaintiff's children, amounting to €3.73 each, totaling €7.46 per month, from the plaintiff's benefits, reducing her entitlement to only €103.00 instead of the required €110.46. This calculation does not withstand legal scrutiny.
a) In calculating the needs of the members of the household, the defendant deducted a portion of the monthly heating costs for the entire household, amounting to €64.70, analogous to Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), for hot water (€8.00 for the plaintiff, €2.00 each for the children). He then included a hot water allowance of €2.00 for each child and the heating costs, previously reduced by €14.00 (€8.00 for the plaintiff, €2.00 each for the children), in the needs calculation, each child receiving one-third of this amount (€17.57).
There is no legal basis in the German Social Code, Book II (SGB II) for this calculation, which ultimately disadvantages the plaintiff.
b) According to Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), recipients of benefits are granted an additional allowance if hot water is generated by devices installed in their accommodation (decentralized hot water generation) and therefore no allowances for centrally provided hot water are granted under Section 22. In this case, however, the water is not heated decentrally, but rather in a central system. The legal basis for granting heating cost allowances is therefore solely Section 22 Paragraph 1 Sentence 1 of the SGB II. Accordingly, heating allowances are granted in the amount of the actual expenses, provided these are reasonable. The law does not differentiate the notional calculation of the share for hot water generation in the case of centralized hot water generation.
Until the law on determining standard benefit rates and amending the Second and Twelfth Books of the Social Code came into effect on January 1, 2011, the costs for hot water preparation were included in the standard benefit rate. The practice of deducting a separate allowance for hot water heating has been eliminated since January 1, 2011, as the costs for hot water production are no longer included in the standard benefit rate (see Section 20 Paragraph 1 Sentence 1 of the Second Book of the Social Code). Since then, the costs for hot water production are either included in the heating costs or are covered by the basic income support provider as heating costs.
Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) does not provide for the application of the regulation in Section 21 Paragraph 7 SGB II, as applied by the defendant for apartments with central hot water heating. Furthermore, there is no basis for an analogous application of the provisions of Section 21 Paragraph 7 SGB II. Section 21 Paragraph 7 SGB II expressly refers only to decentralized hot water heating. For an analogous application, an unintended gap in the law would be necessary; that is, the legislator would have had to leave a situation unregulated that they would have regulated had they considered it. Furthermore, an analogous application is only possible if the circumstances are comparable; that is, if the applicable provision, according to its underlying legal principle (purpose and intent), represents a value judgment that regulates a comparable situation.
c) The prerequisites for an analogous application are not met. Firstly, in the aforementioned amendment to the law, the legislator not only amended the provision of Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), but also Section 22 Paragraph 1 of the SGB II. It can be assumed that, therefore, if the legislator had deemed it necessary, as the defendant claims, to create a parallel regulation, he would have taken this into account when amending Section 22 Paragraph 1 of the SGB II.
d) Furthermore, the additional needs allowances granted for decentralized hot water production under Section 21 Paragraph 7 of the German Social Code, Book II (SGB II) cannot be compared with the "needs" that necessitate centralized hot water heating. Rather, it must be assumed that decentralized hot water heating incurs different costs, resulting, among other things, from the different electricity tariffs that the end customer and tenant on the one hand, and the landlord and potentially large-scale customer on the other, as well as from the (electricity) costs incurred with decentralized hot water heating compared to those of centralized hot water heating. Consequently, the court is convinced that the costs of decentralized and centralized hot water heating are not comparable.
3.
As a result, the defendant's deduction of €12.00 from the heating costs of €64.70 should not have been made. Instead, the actual heating costs of €64.70 must be divided equally among the members of the household, so that €21.57 per child is allocated for heating costs for each of the plaintiff's children. At the same time, the "share of ancillary costs for central hot water" of €2.00 per child, listed in the defendant's needs assessment, must be deducted. This leaves the plaintiff with an income of €1.74 per child, totaling €3.48 per month. However, €7.46 per month was allocated. The plaintiff is therefore entitled to an additional €23.88 for the period in question.
4. The decision on costs follows from § 193 SGG.
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