VERDICT
In the legal dispute
1. xxx,
represented by
xxx,
2. xxx,
represented by
xxx,
– Plaintiffs –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant –
The 15th Chamber of the Social Court of Hildesheim, in the oral proceedings of April 4, 2014, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
By amending the decision of 2 February 2012 as modified by the appeal decision of 29 March 2012, the defendant is ordered to grant the plaintiffs further benefits for accommodation and heating in the amount of 27.48 euros for the period from 1 February 2012 to 31 July 2012.
The defendant must reimburse the necessary extrajudicial costs of the proceedings.
The appeal is admitted.
FACTS OF THE CASE
The parties are in dispute over the amount of benefits granted under the Second Book of the Social Code (SGB II) for the period from 01.02.2012 to 31.07.2012, in particular with regard to the granting of costs for accommodation and heating pursuant to Section 22 Paragraph 1 Sentence 1 SGB II.
The plaintiffs, born on [dates omitted], form a household with their mother [name omitted] and have been receiving benefits under Book II of the German Social Code (SGB II) from the defendant since 2007. The plaintiffs' single mother has been training as a wholesale and foreign trade clerk since August 1, 2010, and in 2012 received vocational training assistance (BAB) pursuant to Sections 59 et seq. of Book III of the German Social Code (SGB III) as amended.
Since November 1, 2007, the plaintiffs and their mother have lived in an apartment at xxx, xxx. From May 1, 2011, they were required to pay a monthly basic usage fee of €309.48, operating costs of €149.60, and heating costs of €64.70. The costs for hot water preparation are included in the heating costs and are calculated 50% based on the heated living space and 50% based on consumption as shown by the installed meters.
On January 23, 2012, the plaintiffs' mother applied for continued benefits starting February 1, 2012. The defendant granted this application with a notice of approval dated February 2, 2012. According to the calculation sheet attached to this notice, the defendant allowed each plaintiff €170.56 for accommodation and heating costs, comprised of €103.16 for net rent, €49.87 for utilities, and €17.53 for heating. The defendant also allowed each plaintiff a share of €1.75 for hot water utilities.
The plaintiffs, through their authorized representative, filed an objection to this decision by letter dated March 2, 2012, arguing that the defendant had only included heating costs of €52.60 per month in the calculation, resulting in a per capita amount of €17.53. The defendant had apparently deducted the hot water portion, amounting to the additional needs allowance for the plaintiffs' mother as stipulated in Section 21 Paragraph 7 of the German Social Code, Book II (SGB II). However, this provision only applies to households with decentralized hot water supply, which was not the case for the plaintiffs.
The defendant rejected this objection with a formal notice of rejection dated March 29, 2012. According 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. In the plaintiffs' case, the hot water costs were included in the heating expenses. The defendant therefore granted the plaintiffs heating costs of €17.53 and hot water costs of €1.75. Taking into account a share of €17.53 for heating costs and €8.60 for hot water for the plaintiffs' mother, who is excluded from receiving benefits due to the exclusion clause in Section 7 Paragraph 5 of the SGB II, the total heating costs of €64.70 were covered.
The plaintiffs, through their authorized representative, filed a lawsuit against this decision with the Hildesheim Social Court by letter dated April 2, 2012.
They argue that the defendant should have also divided the actual heating costs of €64.70 equally among the plaintiffs when calculating the benefit, so that each plaintiff would have been entitled to €21.57. They contend that determining the hot water portion by invoking Section 21 Paragraph 7 of the German Social Code, Book II (SGB II) constitutes an unjustified reduction in the heating cost allowance, for which there is no legal basis.
The plaintiffs request that
the defendant be ordered, by amending the decision of 2 February 2012 as modified by the appeal decision of 29 March 2012, to grant the plaintiffs further benefits in the amount of 27.48 euros.
The defendant requests
that the action be dismissed.
He argues that, according to the jurisprudence of the Federal Social Court (BSG), a comprehensive assessment of the reasonableness of all accommodation and heating costs under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is inadmissible. Therefore, a distinction must be made between accommodation costs, heating costs, and hot water costs. Because no regulation exists for the reasonableness limit in the case of central hot water supply, the defendant uses the additional needs allowances under Section 21 Paragraph 7 of the SGB II. Accordingly, the resulting hot water costs should not be calculated per capita, but rather in relation to the standard benefit rate. Furthermore, a solution must be found independent of the heating cost index, because its creator only intends to provide a statement about the adjusted heating costs without considering the energy costs for hot water preparation. The recommendation in the annotations to the heating cost index for a square meter-based deduction for hot water is incomprehensible, as hot water consumption depends not on the size of the apartment, but on the number of occupants.
For further details of the facts and legal arguments, reference is made to the contents of the court files and the administrative files of the defendant concerning the plaintiffs, which were available to the chamber at the time of the decision.
REASONS FOR THE DECISION
The admissible action is fully justified. The plaintiffs are entitled to higher benefits for accommodation and heating pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) for the period in dispute from February 1, 2012 to July 31, 2012. In this respect, the contested decisions are unlawful.
The subject of the proceedings is the plaintiffs' claims for securing their livelihood under Sections 19 and 20 of the German Social Code, Book II (SGB II), and their claims for higher benefits for accommodation and heating under Section 22 of the SGB II for the period from February 1, 2012, to July 31, 2012, and the defendant's decisions of February 2, 2012, as amended by the decision on the objection of March 29, 2012, which regulate these claims.
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 have reached the age of 15 but not yet the age of 65, or who have not yet reached the age limit according to Section 7a (No. 1), are capable of working (No. 2), are in need of assistance (No. 3), and have their habitual residence in the Federal Republic of Germany (No. 4). According to Section 7 Paragraph 2 Sentence 1 of the SGB II, benefits are also granted to persons who live in a household with eligible persons capable of working. These conditions are met by the plaintiffs. Although they do not belong to the group of persons listed in Section 7 Paragraph 1 Sentence 1 of the SGB II due to their age, their mother does. She forms a household with the plaintiffs according to Section 7 Paragraph 3 Numbers 1 and 4 of the SGB II and is not excluded from all benefits under the SGB II. According to Section 27 Paragraph 2 of the German Social Code, Book II (SGB II) in conjunction with Section 21 Paragraph 3 of the SGB II, she receives benefits under the SGB II in the amount of the additional needs allowance for single parents.
According to Section 9 Paragraph 1 of the German Social Code, Book II (SGB II), a person is considered in need of assistance if they cannot secure their livelihood, their integration into the workforce, and the livelihood of those living with them in a household unit, either at all or insufficiently, through their own efforts and resources, particularly by taking up reasonable employment, from their income or assets, and if they do not receive the necessary assistance from others, especially relatives or providers of other social benefits. According to Section 12 Paragraph 1 of the SGB II, all realizable assets are to be considered as assets. The defendant's calculation of the benefits was correct, with the exception of the amount of the costs for accommodation and heating; this calculation is not in dispute between the parties.
However, the plaintiffs are entitled to higher benefits for accommodation and heating during the period in dispute. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are reasonable. The total accommodation and heating costs must be divided proportionally per capita, regardless of age or intensity of use, if those in need of assistance share accommodation (see Luik in Eicher/Spellbrink, SGB II, 3rd edition 2013, Section 22, marginal note 69 with further references). Accordingly, the defendant considered €103.16 net rent (€309.48 / 3 household members) and €49.87 advance payment for ancillary costs (€149.60 / 3 household members) for each of the plaintiffs.
However, the defendant wrongly recognized heating costs of only €52.60 for the plaintiffs. Setting the reasonable limit for energy costs for hot water separately from the plaintiffs' heating costs was both unnecessary and erroneous.
Contrary to the defendant's assertion, it was not necessary in this case to determine the reasonable limit for the energy costs of hot water preparation. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are generally recognized in the amount of the actual expenses. This regulation only limits the benefit payment if the actual expenses are so high that they exceed the reasonable limit. If, however, the actual costs are below the reasonable limit, the benefits are only granted in the actual amount and not up to the reasonable limit. Therefore, as a first step in determining the costs to be considered for accommodation and heating, the actual energy costs for hot water preparation must be ascertained. Only once these have been determined can their reasonableness be examined in a second step. The defendant, however, is unable to determine the actual costs for hot water preparation.
According to the established case law of the Federal Social Court (see, for example, judgment of February 27, 2008 – B 14/11 b AS 15/07 R, para. 27; judgment of April 6, 2011 – B 4 AS 16/10 R, para. 15), which is shared by the chamber hearing this case, determining the actual costs of hot water preparation requires that a household be equipped with technical devices that allow for the isolated recording of hot water preparation costs. This requires, firstly, that it be technically possible to accurately record hot water consumption through the installation of separate meters or other devices. Secondly, the technical prerequisites for determining the costs of hot water preparation must be in place (see Federal Social Court, judgment of July 7, 2011 – B 14 AS 154/10 R; para. 20). These technical prerequisites are not met. Rather, the energy costs for hot water are included in the heating costs without further breakdown and in an unknown amount. Even with the presentation of the annual heating bill, the defendant will not be able to determine the actual costs of hot water preparation. This is because, according to Sections 2, 3, and 6 of Appendix 2 of the long-term tenancy agreement for the apartment dated October 16, 2007 (pp. 121-122 of the administrative file), the cost shares for hot water preparation are allocated 50% as basic costs based on living space and 50% as consumption costs according to the readings of the installed meters. Thus, the costs for hot water preparation included in the annual consumption statement are only partially based on the plaintiffs' hot water consumption. The remainder is also allocated according to living space. This method of calculation, prescribed by the Heating Costs Ordinance, therefore does not reflect the energy costs for hot water preparation based on actual consumption (see BSG, judgment of 07.07.2011 – B 14 AS 154/10 R; judgment of 24.11.2011 – B 14 AS 121/10 R).
Regardless of the fact that the defendant is unable to determine whether the actual costs for hot water preparation even reach any reasonable limit, the application of the values in Section 21 Paragraph 7 Sentence 2 Numbers 1-4 of the German Social Code, Book II (SGB II) to determine reasonable costs for hot water preparation is unlawful. In the court's view, these values do not represent a threshold beyond which costs are considered unreasonable. The defendant fails to recognize that, according to Section 22 Paragraph 1 Sentence 1 of the SGB II, a specific, individual standard applies for determining reasonable limits, and a flat-rate approach is inadmissible (see Federal Social Court [BSG], Judgment of July 2, 2009 – B 14 AS 36/08 R, paragraphs 18 et seq.). However, the defendant is making precisely such a generalization by applying the values according to Section 21 Paragraph 7 Sentence 2 Numbers 1-4 of the German Social Code, Book II (SGB II), irrespective of the specific circumstances of each case. In the Chamber's view, a determination based on the age-dependent daily hot water consumption required and the local costs for hot water preparation is necessary. The values according to Section 21 Paragraph 7 Sentence 2 Numbers 1-4 of the SGB II do not guarantee this (see Eckhardt, "On the Question of the Appropriateness of Energy Costs for Hot Water Preparation in the SGB II," Info also 2012, Issue 5, pp. 200 ff., with calculation proposals).
Because a concrete determination of the actual energy costs for hot water preparation is not possible in the plaintiffs' case, and thus a separation between heating costs and the energy costs for hot water preparation is not possible, the costs for hot water preparation must be systematically allocated to the heating costs (see Berlit in LPK-SGB II, 5th edition 2013, § 22 para. 32 with further references; North Rhine-Westphalia Higher Social Court, decision of May 28, 2013 – L 9 AS 541/13 B, para. 12). These costs are to be distributed among the household members on a per capita basis. Therefore, the actual heating costs amount to €64.70 per month. On a per capita basis, €21.57 is to be allocated to each of the plaintiffs. After deducting the granted heating costs of €17.53 per person per month and the ancillary costs for central hot water of €1.75 per person, this results in a monthly shortfall of €2.29 per person. Extrapolated over the disputed six-month period, this results in a shortfall of €13.74 (6 x €2.29) per person, totaling €27.48.
The decision on costs is based on Section 193 of the Social Court Act (SGG), the decision on the admissibility of the appeal on Section 144 Paragraph 2 No. 1 of the Social Court Act (SGG).
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