VERDICT
In the legal dispute
xxx,
– plaintiff –
Proc.:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
District xxx,
– defendant –
The 16th Chamber of the Hildesheim Social Court recognized the following without an oral hearing on December 12, 2013 by judge xxx and honorary judge xxx and honorary judge xxx:
1. The defendant is sentenced, amending the decision of May 11, 2012 in the form of the partial remedy and objection decision of June 8, 2012, to pay the plaintiff additional monthly accommodation costs for the period June 1, 2012 to November 30, 2012 in the amount of €35.80, totaling €214.80.
2. The defendant bears the plaintiff's necessary out-of-court costs.
3. The appeal is allowed.
FACT
The plaintiff is seeking higher benefits for the costs of accommodation and heating in accordance with Book II of the Social Code (SGB II) for the period June up to and including November 2012.
During the disputed period, the plaintiff lived in a 57.30 square meter apartment in Göttingen, for which monthly rent of €320.88 and advance additional costs of €73.00 had to be paid for cold operating costs. Hot water was prepared both via the heating system and via an additional electrical device.
With a decision dated May 11, 2012, the city of Göttingen granted the plaintiff benefits to secure his living expenses in accordance with SGB II for the period from June 1, 2012 to November 30, 2011, of which €349.40 covered the costs of accommodation (KdU) and The heating costs amounted to €53.40.
In a letter dated May 22, 2012, the plaintiff, represented by a lawyer, objected to the decision of May 11, 2012 with the aim of granting higher benefits for accommodation and heating. The defendant obviously bases his assessment of appropriateness on the values in the table for Section 12 of the Housing Benefit Act (WoGG). However, a security surcharge of 10 percent should be granted on the monthly value, taking into account the case law of the Federal Social Court (BSG) and the State Social Court (LSG) of Lower Saxony-Bremen. The plaintiff also heats some of his hot water using a water heater. Furthermore, the operating electricity of the gas boiler must be taken into account, which should account for five percent of the monthly heating costs.
In response to the objection, the defendant issued the partial remedy and objection decision of June 8, 2012, with which the objection was remedied to the extent that the plaintiff for the period from June 1, 2012 to November 30, 2011, in modification of the initial decision 358 in dispute, 00 € for KdU as well as additional additional costs for the electricity-powered heating system amounting to 3.10 € per month were granted and the objection was otherwise rejected.
The plaintiff, represented by a lawyer, filed a lawsuit before the Hildesheim Social Court (SG) on June 13, 2012 and supplemented and confirmed his arguments from the objection proceedings. The report from the company xxx does not meet the Federal Social Court's requirements for the so-called "conclusive concept", so that there is no determination by the defendant of the reasonable costs of the accommodation within the meaning of Section 22 Paragraph 1 SGB II. In the absence of any other evidence, he should therefore be recognized as a KdU with the values of Section 12 WoGG, which must be increased by a safety margin of 10 percent. A safety surcharge of 10 percent must also be added to the values in the table in Section 12 WoGG that applies from January 1, 2009. This means that there is a claim to additional KdU per month in the amount of €35.80 per month for the months of June up to and including November.
The plaintiff requests that
the defendant, amending the decision of May 11, 2012 in the form of the objection decision of June 8, 2012, be ordered to grant the plaintiff a further €35.80 a month for accommodation costs, a total of a further €214.80.
The defendant requests
that the lawsuit be dismissed.
He first refers to the decision at issue. The required safety margin of 10 percent on the relevant values in the table for Section 12 WoGG cannot be granted. This cannot be inferred from the decisions of the BSG. Furthermore, it is unfair to treat recipients of SGB II benefits and those receiving housing benefit differently. After the introduction of the new table for § 12 WoGG on January 1st, 2009, the safety surcharge required by the Federal Social Court (BSG) is no longer necessary, as due to the increase in the respective table values, the BSG in the judgment of February 19th, 2009 (B 4 AS 30/08 R) the possible unfairness of a flat rate that was discussed had been eliminated.
The parties involved have declared their consent to a decision without an oral hearing.
For further details of the facts and the status of the dispute, reference is made to the content of the court files and the defendant's administrative files.
REASONS FOR THE
DECISION The chamber was able to decide without an oral hearing because those involved agreed to this, Section 124 Paragraph 2 of the Social Court Act (SGG).
The admissible action for rescission and obligation is justified. The decision of May 11, 2012 in the form of the partial remedy and objection decision of June 8, 2012 is unlawful and violates the plaintiff's rights in accordance with Section 54 (2) SGG.
During the period in question, he is entitled to receive further KdU in the amount of €214.80.
KdU are paid in the amount of the actual expenses, provided they are appropriate; see Section 22 Paragraph 1 Sentence 1 SGB II. If the expenses for accommodation exceed the amount appropriate to the specifics of the individual case, they must be taken into account as the needs of the person in need of help as long as it is not possible or reasonable for the person in need of help to do so a change of residence, by renting out or in some other way to reduce expenses, but usually for a maximum of six months; § 22 para. 1 sentence 2 SGB II. The test of appropriateness limits the amount of reimbursable costs (cf. BSG, judgment of September 22, 2009 - B 4 AS 18/09 R). 'Appropriateness' is an indefinite legal term that is subject to full judicial control (cf. BSG, judgment of November 7, 2006 - B 7b AS 10/06 R). According to the established case law of the BSG, the determination of appropriateness must be carried out in several stages. First, the abstractly appropriate apartment size and the relevant comparison room must be determined. The next step is to determine how much has to be spent on a simple standard apartment on the housing market in the comparison area. The aim of the investigation is the price per square meter for simple standard apartments, which is to be multiplied by the appropriate number of square meters in accordance with the product theory. The result is the regionally appropriate rent (see BSG, judgment of September 22, 2009 - 18/09 R).
During the period in question here, the defendant initially used the values in the table for Section 12 WoGG to determine the regionally abstractly appropriate apartment rent in an unobjectionable manner. If there is no so-called coherent concept for determining the adequacy limit, the values in the housing benefit table must be used (see BSG aa0).
Contrary to the defendant's opinion, however, a security surcharge of 10 percent must also be granted on the values in the table for Section 12 WoGG in this context, so that the plaintiff is entitled to further KdU in the amount of €35.80 for each month in the period in dispute here June to November 2012 included.
However, this does not follow from the BSG's statements in the judgment of December 17, 2009 (B 4 AS 50/09 R). These only refer to the values in the table for Section 8 WoGG that was valid until December 31, 2008 and do not make any statement about the legal situation as of January 1, 2009. This is particularly supported by the fact that this legal question is currently pending before the BSG (B 4 AS 87/12 R).
— Now also decided by the BSG with its judgment of December 12, 2013 on the case number B 4 AS 87/12 R –
Nevertheless, the Chamber is convinced that such a surcharge should also be granted on the table values for Section 12 WoGG. In this regard, the chamber agrees with the opinion of the state 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 that the determination of the surcharge is not a case-by-case decision based on the specific facts of the case, but rather has been determined by the BSG taking abstract criteria into account. Furthermore, according to the relevant decision of the BSG, the surcharge on the values in the table for Section 8 WoGG should not be a compensation for an increase in price that has occurred in the meantime. The purpose of the surcharge should rather be to compensate for possible imponderables and thus to protect the elementary need of the person in need of help to secure their living space.
Despite the increase in the values in the housing benefit table on September 1, 2009, the Chamber is convinced that such a surcharge should continue to be approved.
On the basis of Section 12 WoGG plus a 10 percent surcharge, the costs that can be covered during the disputed period amount to €393.80 per month, so that the defendant, taking into account the €358.00 per month already granted, has to pay additional accommodation costs of €35.80 €, which means he has to pay a total of €214.80 during the six-month period in question.
The cost decision follows from Section 193 SGG.
The appeal was to be permitted in accordance with Section 144 Paragraph 2 No. 1 SGG because the case is of fundamental importance.
Instructions on legal remedies follow.
