VERDICT
In the legal dispute
between 1. xxx,
2. xxx,
3. xxx,
4. xxx,
3. and 4. represented by xxx,
– Plaintiffs –
Legal representative:
for 1: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant –
The 33rd Chamber of the Social Court of Hildesheim, in the oral proceedings of May 5, 2014, with Judge xxx of the Social Court and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decision of 10 March 2010 as modified by the appeal decision of 7 April 2010, to grant the plaintiffs a further 433.56 euros (72.26 euros per month) for accommodation costs for the period from 1 February to 31 July 2009.
2. The defendant shall reimburse the plaintiffs for their necessary extrajudicial costs.
3. The appeal is admitted.
FACTS OF THE CASE
The plaintiffs are seeking higher benefits for accommodation (and heating) costs.
The plaintiffs are currently receiving benefits under the Second Book of the German Social Code (SGB II). They originally lived in an approximately 60-square-meter apartment with the grandparents of plaintiff 1) in [location redacted]. Due to disagreements with the grandparents of plaintiff 1) and the apartment being too small for four people, the plaintiffs wished to move and submitted a rental offer for an apartment in [location redacted] in [location redacted].
The City of Göttingen, which the defendant contacted pursuant to Section 3 Paragraph 1 of the Lower Saxony Implementing Act to the German Social Code, Book II (Nds. AG SGB II) in conjunction with Section 6 Paragraph 1 Sentence 1 No. 2, Paragraph 2, and Section 6a of the German Social Code, Book II (SGB II), informed the plaintiff (1) on March 28, 2007, that in the event of a move to [address redacted] in [city redacted], it would only recognize housing costs of €545.00 as reasonable. Reference is made to the contents of the minutes of the meeting of March 28, 2007.
After initially submitting a request to the defendant for permission to move, the plaintiffs ultimately rented a 96.73 sq m apartment (built in 1990) in xxx, effective October 1, 2008, without the defendant's prior consent. The monthly rent is €483.65, the advance payment for utilities is €133.61, and the advance payment for heating and hot water is €85.00. Hot water is supplied centrally via district heating.
By decision dated January 8, 2009, for the period from February to July 2009, the city of xxx granted the plaintiffs a housing allowance of €545.00 each; heating costs were also recognized in the amount of the actual expenses of €85.00. The city of Göttingen had already recognized these expenses in the previous benefit period.
By letter dated 16 February 2010, the plaintiffs requested, pursuant to Section 44 of the German Social Code, Book X (SGB X), a review of the benefits granted for the aforementioned period.
By decision dated March 10, 2010, the City of Göttingen rejected the review application on the grounds that the law had not been incorrectly applied. Rather, extensive investigations by the defendant had shown that the costs for accommodation (and heating) were only reasonable up to the amount of the approved benefits.
The defendant rejected the objection filed against the decision on March 16, 2010, with a decision on the objection dated April 7, 2010, on the grounds that in the area of the city of xxx, EUR 545.00 per month represents the appropriate amount for accommodation costs, and that the approval notice of January 8, 2009, and thus also the notice of March 10, 2010, were lawful.
The plaintiffs filed their lawsuit on April 8, 2010.
They argue that the defendant should bear the actual rent they have to pay. The expert opinion from F+B GmbH does not meet the requirements of the Federal Social Court for a so-called "conclusive concept," meaning that the defendant has failed to determine the reasonable housing costs as required by Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). Therefore, the reasonableness should be determined according to the table in Section 12 of the Housing Benefit Act, plus a 10% safety margin. The actual rent is below this reasonable limit.
The plaintiffs request
that the defendant, by amending the decisions of 10 March 2010 as modified by the appeal decision of 7 April 2010, be ordered to grant the plaintiffs a further 433.56 euros in accommodation costs for the period from 1 February to 31 July 2009.
The defendant's attorney requests that
the action be dismissed.
The defendant's attorney further requests
that evidence be taken to prove that the data was collected throughout the defendant's entire area of responsibility, by examining witness Mr. xxx, to be summoned via F+B GmbH, xxx. The attorney further requests that evidence be taken by reviewing the returned questionnaires;
furthermore, that evidence be taken to prove that the data was collected exclusively during the observation period of February and March 2008, by examining witness xxx, to be summoned via F+B GmbH, xxx; and
furthermore, that evidence be taken to prove that the F+B GmbH report is based on a data set representing 32.3% of the regional rental housing stock under consideration, and that this estimate was made according to scientific standards by obtaining an expert opinion.
Furthermore, to obtain expert evidence that the data cleansing carried out in the F+B report is scientifically sound;
further, to obtain expert evidence that the F+B GmbH report's exclusion of apartments located in single-family and two-family houses, as well as apartments with a living area of less than 20 m², is technically sound and does not lead to a different result compared to including these apartments;
further, to obtain expert evidence that the average cold operating costs of the apartments examined in the lower third of the rent distribution are lower than those of the rest of the housing stock surveyed;
further, to obtain expert evidence that the cold operating costs of newly rented apartments do not differ from those of comparable apartments that have been rented for a longer period;
Furthermore, to obtain evidence that the expert opinion of F+B GmbH sufficiently determined and evaluated the net rents and operating costs (excluding heating and hot water) according to scientific standards, by obtaining an expert opinion;
further, to obtain evidence that recognized mathematical and statistical principles were applied in the preparation of the expert opinion of F+B GmbH, by obtaining an expert opinion;
further, to obtain evidence that the plausibility check of the operating costs (excluding heating and hot water) in the expert opinion of F+B GmbH was carried out in accordance with recognized scientific standards, by obtaining an expert opinion;
further, to obtain evidence that the amount of data collected on the advertised rents was sufficiently large to allow meaningful conclusions according to scientific standards, by obtaining an expert opinion;
further, to obtain evidence that the operating costs used as the basis for determining existing rents were sufficiently determined according to scientific standards, by obtaining an expert opinion;
Furthermore, evidence is to be obtained that the use of advance payments for operating costs is technically sound according to current scientific understanding, by obtaining an expert opinion.
The defendant's representative further requests that
the appeal be granted.
To justify the reasonable limit for housing costs, the defendant relies on the expert opinion he commissioned from F+B GmbH. This expert opinion represents a coherent concept within the meaning of the Federal Social Court's (BSG) case law.
For further details of the facts and the legal arguments, reference is made to the case file and the defendant's administrative file. These documents were available and formed the basis of the decision.
REASONS FOR THE DECISION
The admissible combined action for annulment and performance (§ 54 para. 1 SGG) is well-founded.
The legal basis for the plaintiffs' claim is § 40 para. 1 sentence 1 SGB II in conjunction with § 44 SGB X.
An administrative act, even after it has become legally binding, must be revoked retroactively if, in a specific case, it is found that the law was incorrectly applied or that the act was based on facts that prove to be incorrect, and if, as a result, social benefits were wrongfully withheld (§ 44 para. 1 sentence 1 SGB X). If an administrative act has been revoked retroactively, social benefits will be provided in accordance with the provisions of the special parts of this Code for a maximum period of four years prior to the revocation (§ 44 para. 4 sentence 1 SGB X). The date of revocation is calculated from the beginning of the year in which the administrative act is revoked (§ 44 para. 4 sentence 2 SGB X). If the revocation is made upon application, the application replaces the revocation when calculating the period for which benefits are to be provided retroactively (§ 44 para. 4 sentence 3 SGB X).
The requirements of Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 44 of the German Social Code, Book X (SGB X) are met.
When issuing the decision of January 8, 2009, the defendant incorrectly applied the law and wrongly did not grant the plaintiffs higher housing costs.
I.
The plaintiffs are initially entitled to benefits within the meaning of Sections 7 and 19 of the German Social Code, Book II (SGB II). According to this provision, employable persons in need of assistance receive, among other things, unemployment benefit II to secure their livelihood. Pursuant to Section 19, Paragraph 1, Sentence 2 of the SGB II, non-employable persons entitled to benefits who live in a household with employable persons entitled to benefits receive social assistance. According to Section 19, Paragraph 1, Sentence 3 of the SGB II, these benefits include, in addition to the standard allowance and supplementary allowances, the costs of accommodation and heating. The court has no indication that the plaintiffs are not entitled to benefits in the aforementioned sense, contrary to the defendant's findings.
II.
The defendant did not apply the law correctly, as the plaintiffs have a higher claim to costs for accommodation and heating.
1.
This does not follow directly from Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), according to which housing costs are to be considered as a need of the benefit unit as long as it is not possible or reasonable for the benefit unit to reduce these costs by moving, subletting, or otherwise, but generally for a maximum of six months. In this respect, a separate request for cost reduction from the defendant was not necessary. According to the administrative file, the plaintiffs were already aware before renting the apartment in [address redacted] that the city of [city redacted] considered only €545.00 of the housing costs to be reasonable. Furthermore, the defendant had already approved only the reduced housing costs during the previous period.
2.
However, the plaintiffs' claim is based on Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). According to this provision, the costs for accommodation and heating are covered up to the amount of the actual expenses, provided they are reasonable. This is the case here.
a)
This is not precluded 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, only the previous level of need is to be recognized (Section 22 Paragraph 1 Sentence 2 SGB II). The court has no indication that the plaintiffs' move was unnecessary in this case. Nor was this asserted by the defendant. On the contrary, it can be inferred from the defendant's file note of July 31, 2008, that the defendant also assumed the move was necessary. Furthermore, the court is convinced that the small size of the plaintiffs' apartment, at 60 square meters, is sufficient to justify a move for a four-person household, given that a size of up to 85 square meters is considered appropriate for four people.
b)
Furthermore, it does not follow from the minutes of March 28, 2007, that the defendant was only obligated to cover the accommodation costs in the amount of EUR 545.00. While the first plaintiff had declared in these minutes her willingness to bear the remaining additional costs for the apartment in xxx herself, the court is convinced that this declaration does not constitute a waiver, but rather merely the first plaintiff's acknowledgment to the plaintiffs that the defendant would only consider the accommodation costs to be reasonable up to a certain amount in the future. Such a waiver, also to the detriment of the second through fourth plaintiffs, would also be invalid (Section 46 Paragraph 2 of the German Social Code, Book I). Moreover, the first plaintiff's declaration was made in 2007, while the apartment was not rented until October 1, 2008. Therefore, while the plaintiffs were aware that the defendant would continue to consider the accommodation costs to be reasonable only up to the amount of EUR 545.00, this does not constitute a waiver. However, it cannot be determined that the waiver should be issued in the abstract without time limit for any potential rental of an apartment in xxx.
c)
The assessment of the appropriateness of accommodation costs limits the amount of reimbursable costs (see Federal Social Court [BSG], judgment of September 22, 2009 – B 4 AS 18/09 R, cited in juris). "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, cited in juris). According to established case law of the Federal Social Court, the determination of appropriateness must be carried out in several stages. First, the abstractly appropriate apartment size and the relevant comparison area must be determined. In a further step, it must be ascertained how much one would have to spend on the housing market of the comparison area for an apartment of basic standard. The aim of the determination is the price per square meter for apartments of basic standard, which is to be multiplied by the appropriate square footage according to the product theory. The result is the regionally appropriate rent (cf. BSG, judgment of 22.09.2009 – B 4 AS 18/09 R cited according to juris).
However, the defendant failed to provide the court with a comprehensible explanation of what constitutes a regionally appropriate, abstract rent for residential property.
The determination of the defendant's deemed appropriate rent per square meter for the appropriate standard of living in the relevant apartment size category is not based on a coherent concept. In this respect, the court refers to the decisions of the 23rd Chamber of the Hildesheim Social Court of June 16, 2010 (S 23 AS 1062/06) and December 9, 2011 (S 23 AS 1911/10). The 23rd Chamber stated:
"The F+B report therefore does not confirm that the costs considered by the defendant are reasonable costs within the meaning of Section 22 of the German Social Code, Book II (SGB II). This report is flawed in a fundamental way, and this flaws cannot be remedied even through a court-ordered revision.".
According to the Federal Social Court's (BSG) jurisprudence, the determination of the regional adequacy limit must be based on a verifiable and coherent concept that provides sufficient assurance that the current conditions of the local rental housing market are reflected (BSG, Judgment of June 18, 2008, B 14/7b AS 44/06 R). The limitation of actual accommodation costs to a "reasonable level" must be sufficiently comprehensible. The BSG defines a coherent concept as "a systematic approach by the basic income support provider in the sense of systematically determining and evaluating general, albeit location- and time-specific, facts for all cases within the relevant comparison area, and not merely an ad hoc approach on a case-by-case basis" (BSG, Judgment of September 22, 2009, Case No. B 4 AS 18/09 R, para. 19).
The Federal Social Court (BSG) has made the following specifications regarding the minimum requirements of a coherent concept (ibid.):
= Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization);
= 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
= Information about the observation period,
= Determination of the method of data collection (sources of information, e.g. rent index),
= Representativeness of the scope of the data collected,
= Validity of the data collection,
= Compliance with recognized mathematical-statistical principles of data evaluation and
= Information about the conclusions drawn (e.g. upper limit of the range or capping limit).
The data collected by F+B GmbH in 2008 do not meet the minimum requirements for a coherent concept specified by the BSG in essential points.
"The Chamber has come to the conclusion that the F+B report does not represent a coherent concept because it lacks a comprehensible definition of the subject of observation, the method of data collection is objectionable, the scope of the collected data is not representative, and the capping limit (33% quantile) is incomprehensible.".
The chamber's decision is largely based on the fact that
– not the entire housing market was included in the data collection,
– therefore the previous definition of the basic housing standard was wrongly omitted,
– the rental housing stock from 1987 was used as a basis and then estimated for the year 2006, and
– the capping limit drawn at the 33% quantile is not comprehensible.
As already stated above, the BSG explains:
“A comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to the standard of the apartments, gross and net rent (comparability), differentiation according to apartment size.”
According to the Federal Social Court's (BSG) guidelines, both apartments from the overall housing stock (i.e., those of basic, average, and high standards) and apartments of basic standards alone can be included in the monitoring. For example, apartments with a rent cap are also permissible. However, housing that cannot provide reliable information, such as dormitories, is not to be considered (Judgment of September 22, 2009, Case No. B 4 AS 18/09 R).
The court doubts that capturing the entire housing market renders differentiation based on, among other things, location and amenities unnecessary. Unlike the defendant, it does not derive this necessity from the Federal Social Court's (BSG) ruling of September 22, 2009. The lack of differentiation leads to subsequent problems in determining the rent cap (see below). However, this point is moot, as the court does not accept the defendant's assumption that the F+B report encompassed the entire housing market. In the court's view, the entire housing market was not captured because data cleansing was carried out that is not entirely transparent.
In the survey of existing rents, apartments of up to 20 square meters were excluded because F+B GmbH assumed they were residential care home apartments. According to the court, this should have been verified, but this verification was not possible due to the anonymized nature of the tenant survey and was therefore omitted (see p. 8 of the expert opinion). The expert opinion itself provides the argument that these apartments are not necessarily residential care home apartments, stating on p. 8: "An address comparison with some information obtained during the survey of advertised rents partially confirmed this assumption." Crucial for justifying the exclusion of these apartments from the dataset without resulting in a shift in the burden on welfare recipients is the extent of "partially," which, however, remains undefined. In the court's view, it is equally plausible that these are, for example, apartments from housing programs for socially disadvantaged citizens. Removing these apartments from the data is detrimental to welfare recipients, as while they generally have low rents and are therefore attractive to single people with low incomes, the price per square meter, which ultimately needs to be determined, is comparatively high. If, on the other hand, apartments with fixed maximum rents, i.e., publicly subsidized housing, remain in the dataset (see Figure 2.3, p. 9 of the expert report), the court believes this leads to a distortion to the detriment of welfare recipients. The defendant has not addressed these concerns in his written submission of February 12, 2010 (see p. 154 of the court file). It is unclear what "extensive research" F+B GmbH conducted before excluding this data from the analysis, and this also contradicts the statements in the expert report, which merely "assume" that the apartments in question are dormitory-style apartments. The fact that this only represents about 1% of the gross sample does not lead to a different assessment, since this means that a group was not included, and it is unclear whether this group was wrongly completely disregarded.
The defendant's reference to the stricter procedures used in the creation of qualified rent indices in larger cities is unconvincing. According to Section 558 Paragraph 2 Sentence 1 of the German Civil Code (BGB), rent indices must differentiate between comparable housing types, sizes, features, condition, and location. F+B GmbH does not follow this procedure (p. 16 of the expert opinion). The court is of the opinion that defining the simplified standard only as a result (here, via the 33rd percentile of the price per square meter) necessarily presupposes that the data sets are not cleaned in the same way as when creating qualified rent indices. The more restrictive approach used for rent indices is justified solely by the need for careful differentiation. It should also be noted that F+B GmbH does not consistently adhere to even these requirements for creating rent indices. Unlike the approach taken in the F+B expert opinion, apartments with approved subsidies are not included in the creation of qualified rent indices. In the Chamber's view, incompatible paths are being taken to the detriment of the aid recipients.
The Federal Social Court's (BSG) ruling of September 22, 2009 (Case No. B 4 AS 18/09 R, para. 22) does not lead to a different conclusion. The court does not object to the fact that apartments with funding commitments remained in the dataset, which is permissible according to the BSG, but rather to the fact that, without further review, very small apartments were assumed to be located in dormitories and were subsequently removed from the dataset.
Furthermore, apartments in single-family and two-family houses were not taken into account from the outset, again with the – here non-relevant – reference to the procedure for creating qualified rent indices (see p. 4 of the report).
Another difference compared to the creation of rent indices lies in the lack of information regarding the date on which existing rents were agreed. The court considers this information indispensable, as the current limit of reasonable rent was determined based on these existing rents (see p. 29 of the expert opinion).
In the Chamber's view, it would also have been essential to ensure that the data sets included rental apartments from various locations. Only then could one speak of a comprehensive overview of the entire housing market. This is because apartments in so-called desirable neighborhoods can be significantly more expensive, despite a lower standard, than well-equipped apartments in less sought-after areas.
Since the entire housing market was not included, it is not sufficient to define the basic housing standard only in the result via the price per square meter, which was set at the so-called 33% quantile (see p. 19 of the report).
The lack of a definition of the "basic standard" leads, in the Chamber's opinion, to subsequent problems in determining average cold operating costs. The exclusion of cold operating costs exceeding €2.50/m² from the existing rent survey data (p. 10 of the expert opinion) only avoids data distortion to the detriment of benefit recipients if these cold operating costs do not pertain to apartments of a basic standard. F+B GmbH was unable to verify this because the apartments remaining in the data could not be assigned to any standard.
The court is also not convinced that the cold operating costs for the advertised rents were calculated correctly. The approach of disregarding the cold operating costs listed in advertisements (see p. 15 of the expert opinion) and instead using the "average cold operating costs per square meter of living space obtained from the evaluation of the existing rent survey" (p. 30 of the expert opinion) actually prevents a review of the calculated existing rent. The available supply is thus checked based on partial data from the existing stock. The mere fact that the cold operating costs in the advertisements often could not be separated from the heating costs (see p. 15 of the expert opinion) does not justify this approach. In any case, it is necessary to provide plausible evidence that this does not lead to a distortion, because the initial assumption is that advertised rents reflect the more current picture of cold operating costs demanded on the market. Ultimately, the advertised rents are the conditions under which people in need of assistance enter the housing market. The mere assumption that the operating costs for existing leases are up-to-date ("it can be assumed"; cf. p. 30 of the expert opinion) is insufficient. The court does not rule out the possibility that the resulting asking rent (gross rent excluding utilities) is accurate, but this is a random and not verifiable result.
The Chamber considers the "representativeness of the scope of the collected data" required by the Federal Social Court (BSG) to be a crucial pillar of a sound concept, which is also not guaranteed in the F+B report. The mere fact that the rental housing stock from the 1987 building and housing census, i.e., before the opening of the borders to the current new federal states, was used as the basis for the data collection, and that only an estimate of the current rental housing stock for 2006 was then made, does not lead the Chamber to conclude that the F+B report represents a sound concept. Whether a representative sample with a proportion of collected rental data amounting to 32.3% (see p. 4 of the report) is achieved cannot be verified in this way.
In the Chamber's view, the F+B report is also not a coherent concept because the cap set at the 33rd percentile is incomprehensible. The underlying assumption that this cap separates the bottom third from the remaining two-thirds of the housing market and accurately reflects apartments of basic standards presupposes that the entire housing market is actually captured, which—as explained above—the Chamber does not share. It further presupposes an even mix of apartments of basic, average, and high standards in the data sets. No conclusions can be drawn about this because a definition of basic standards is specifically omitted. Depending on the respective—unidentifiable—proportions, the resulting price per square meter shifts. The use of the middle ground in the rent distribution used in the rent indices of the cities of Kiel (16.6th percentile) and Berlin (50th percentile) is not a valid justification, because rent indices specifically differentiate based on location, condition, amenities, etc. Furthermore, it remains unclear how conclusions can be drawn about basic housing in the city of Göttingen. The defendant's justification in his written submission of February 12, 2010 (p. 160 of the court file), according to which the 33rd percentile represents lower-income households (20%) and households receiving basic social security benefits (10%), plus a safety margin, is therefore unconvincing. In the court's view, it can only be assumed that this cap accurately reflects the housing of basic standards.
Contrary to the defendant's assertion, the court cannot see how the prior determination of the basic standard constitutes an impermissible restriction on welfare recipients in their search for housing. The aim of the calculation remains the regionally appropriate rent, expressed as a total amount that enables the welfare recipient to realize their preferences. According to the Federal Social Court's (BSG) jurisprudence, the decisive factor is not the appropriateness of the individual elements, but rather the total financial burden. This does not alter the fact that this total amount can only be determined by considering the costs of basic housing.
Contrary to the defendant's view, the court has no further duty to investigate.
The chamber sees no further investigative possibilities, particularly due to the passage of time.
Contrary to the defendant's opinion, the court is also not in a position to conduct further investigations based on the F+B expert opinion.
The Federal Social Court (BSG) states the following regarding the court's duty to investigate:
"This duty to investigate does not automatically transfer to the social court if the basic income support provider's concept proves to be untenable (inconclusive) or if, in the case of an otherwise conclusive concept, the necessary data have not been collected or have not been collected properly." (Judgment of September 22, 2009, B 4 AS 18/09 R, para. 26)
"If the municipal authority's concept for determining the appropriate price per square meter proves to be flawed, as in the present case, this can ultimately mean that the court of first instance may also accept the actual price per square meter as appropriate without further examination, as the Higher Social Court (LSG) did in the present case. However, in such a case, the costs of accommodation are not to be covered without limit, but only up to the amount of the table values according to Section 8 of the Housing Benefit Act (WoGG aF), moderately increased by a surcharge. The court can only draw this conclusion from the lack of a conclusive concept, however, if it has previously (unsuccessfully) attempted to rectify the administration's inadequate findings with its support (see judgment of the presiding panel of judges of July 2, 2009, B 14 AS 33/08 R). Accordingly, the LSG will first have to conduct further investigations to determine whether and to what extent the expenses incurred by the plaintiffs for accommodation during the period in question were appropriate." Following the logic of the distribution of responsibility for developing a coherent concept, the court will first address the defendant's investigations and, if necessary, correct any conceptual weaknesses. Furthermore, it will be able to access, for example, private rental databases—where available—that do not meet the requirements of Sections 558c and 558d of the German Civil Code (BGB), but are suitable for providing at least an approximate indication of reasonableness (see Federal Social Court [BSG], Judgment of June 18, 2008 – B 14/7b AS 44/06 R, FEVS 60, 145, 149, para. 16). If necessary, it may also engage its own expert. Only if these investigations prove fruitless can the defendant be ordered to bear the plaintiffs' actual expenses, as the Higher Social Court (LSG) correctly assumed in principle. (Judgment of 20 August 2009, B 14 AS 65/08 R, para. 21)
A revision, as formulated by the 14th Senate of the Federal Social Court (BSG), is not possible here. The Chamber considers the very foundations of the rent data collection, such as the incomprehensible data cleansing, to be flawed in the F+B expert opinion. A new survey based on a new concept would be necessary to eliminate the aforementioned weaknesses. At this point, the Chamber also reiterates that, due to the anonymized nature of the tenant survey, F+B GmbH was unable to conduct any follow-up surveys and/or control surveys – which it apparently deemed necessary (see p. 8 of the expert opinion, point 2.2)
The defendant's supplementary submissions do not alter this conclusion in the present case. The court clarifies, in contrast to the aforementioned decision, that it considers the prior definition of housing standard indispensable. Only then can the defendant determine the proportions of apartments of basic, average, and superior standard that were included. The cap at the 33rd percentile is only justified if a balanced mix can be demonstrated. Given the methodology used by F+B GmbH, it cannot be ruled out that predominantly apartments of basic standard were included in the evaluation, thus creating a bias to the detriment of those receiving assistance. In any event, the result remains largely arbitrary
The 33rd Chamber, based on its own conviction and after its own examination, concurs with these statements made by the 23rd Chamber.
The court further concluded that it was not required to grant the defendant's requests for evidence. No further clarification of facts relevant to the decision was necessary. It is irrelevant whether the defendant's requests for evidence were actually aimed at establishing facts accessible to proof or whether they were instead value judgments to be made by the court. The written expert opinion and the defendant's supplementary submissions provide the necessary facts; the court draws the conclusions. Even assuming the requested expert opinions were to reach the conclusion asserted by the defendant, this would not alter the assessment of the case. The mere failure to identify the proportions of apartments of basic, average, and high standards leads to a random result that is therefore unsuitable for limiting housing costs under Section 22 of the German Social Code, Book II (SGB II).
The plaintiffs' housing costs are therefore to be reimbursed in the amount shown in the judgment. The court applies the case law of the Lower Saxony-Bremen State Social Court and, more recently, also of the Federal Social Court, according to which, in the absence of other means of determining the amount, the right-hand column of the table in Section 12 of the Housing Benefit Act (WoGG) plus a 10% safety margin must be used as an exception for the period in dispute. For a four-person household in Göttingen (rent level IV), the "appropriate" values for the period in dispute amount to €660.00 per month on this basis, so that the plaintiffs' actual housing costs of €617.26 per month for the period in dispute must be reimbursed. Since the defendant has already granted €545.00, he must grant the difference of €72.26 per month for the six months in dispute, totaling €433.56.
The decision on costs is based on § 193 SGG.
The appeal is admissible pursuant to Section 144 Paragraph 2 No. 1 of the Social Court Act (SGG) due to the fundamental importance of the legal issue. The deciding chamber has concluded that, despite the now-available judgment of the Higher Social Court of Lower Saxony-Bremen on the present legal issue, fundamental importance still exists because there is no decision yet from the Federal Social Court.
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