VERDICT
In the legal dispute
xxx,
– Plaintiff and Appellant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant and Respondent –
The 11th Senate of the Lower Saxony-Bremen State Social Court, in its oral hearing of May 27, 2014 in Celle, with Judges xxx – Chairman –, Judges xxx and xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
The judgment of the Hildesheim Social Court of March 15, 2011, and the defendant's decision of September 8, 2008, as amended by the appeal decision of November 17, 2008, are hereby set aside.
The defendant is ordered to grant the plaintiff a subsidy of 179.00 euros for the purchase of a washing machine, partially revoking the decision of November 1, 2007.
The defendant shall reimburse the plaintiff for the necessary extrajudicial costs of both legal proceedings.
The appeal is not admitted.
FACTS OF
THE CASE The parties are in dispute regarding the partial revocation of the defendant's legally binding decision of November 1, 2007, pursuant to Section 44 of the German Social Code, Book Ten (SGB X). The plaintiff seeks to have the costs for the purchase of a washing machine covered by a grant instead of a loan.
The plaintiff, born in 19xx, was divorced in 19xx. Until their separation in September 19xx, the couple owned a washing machine, which, however, had recently become unusable. The plaintiff cannot recall whether she took the broken washing machine with her when she moved out of their shared apartment. After separating from her husband, the plaintiff initially lived alone, and from 2001 to 2003/2004 in a cohabiting partnership in xxx. During this time, she used a washing machine owned by her then-partner. After separating from this partner, she moved to xxx, where she received subsistence benefits (at times only supplementing her earned income), initially under the Federal Social Assistance Act (BSHG) and later under the Social Code, Book Two – Basic Income Support for Job Seekers – (SGB II). During this period, the plaintiff did not own a washing machine but used a laundromat, for which she stated that she spent approximately 30 to 35 euros per month.
In a letter dated September 26, 2007, the plaintiff, in connection with a move to xxx approved by the responsible SGB II benefits agency, applied for a subsidy for the purchase of a washing machine, as there was no laundromat at her new place of residence. The defendant granted this application a loan of €179.00 (final and binding decision dated November 1, 2007).
On August 17, 2008, the plaintiff applied for a partial reversal of the decision of November 1, 2007, requesting that the purchase costs for the washing machine be covered as a grant instead of a loan. The defendant rejected this application, which is the subject of the present proceedings, on the grounds that a grant could only be awarded for initial purchase. The plaintiff, however, had already owned a washing machine in the past. The Social Code, Book II (SGB II), provided no legal basis for the now necessary replacement purchase. Instead, the maintenance or replacement costs were to be covered by the standard benefit payment (decision of September 8, 2008, as amended by the appeal decision of November 17, 2008).
The plaintiff filed a lawsuit against this decision with the Hildesheim Social Court (SG) on November 24, 2008, arguing that the term "initial equipment" should be interpreted in terms of need, not time. The Hildesheim Social Court had already granted a subsidy for the purchase of a washing machine in another ruling, reasoning that the standard benefit did not include separate amounts for the use of a laundromat (judgment of August 3, 2008 – S 13 AS 1126/06).
The Social Court (SG) initially granted the plaintiff's claim by court order dated May 6, 2010, but then dismissed it by judgment dated March 15, 2011, following the defendant's request for an oral hearing. The SG reasoned that Section 23 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book II (SGB II) provides for additional benefits only for initial furnishings. The washing machine purchased in 2007, however, was a replacement purchase, as the plaintiff had already owned a washing machine during her marriage. She must be held to her free decision, made in 2004, to maintain her own household without a washing machine. Likewise, she must be held to her decision, made during the marriage, not to replace the washing machine, which had become inoperable at that time, using the financial resources available then. Otherwise, the purchase date would be impermissibly shifted. Since the plaintiff moved with her entire household from [location redacted] to [location redacted], no new need for assistance arose. Even though she can no longer do her laundry at a laundromat, she is no worse off financially than before her move. While she claims to have incurred costs of €30 to €35 per month for using the laundromat, she now only has to repay the loan of €179 per month. A claim for initial furnishing assistance due to a recurring need is not possible because any new need is not attributable to exceptional circumstances such as starting a new household or separation. Since the Social Code, Book II (SGB II) came into effect, at most a loan, but not a grant, is available for the special need claimed by the plaintiff.
The plaintiff filed an appeal on April 14, 2011 against the judgment served on her on March 29, 2011, which was admitted by the Social Court due to its fundamental importance.
The plaintiff points out that she has not owned a washing machine for years. Therefore, it is already doubtful whether one can even speak of a replacement purchase. She also argues that it should not be held against her that she had relied for years on the use of a laundromat at her previous residence – a significantly cheaper option for the defendant – using funds from her standard benefits. Only the move to xxx, where there is no laundromat, created a new need. The move is comparable to other significant or exceptional events. The decisive factor is that the plaintiff has not had a washing machine since the beginning of receiving benefits under Book II of the German Social Code (SGB II). Due to the high monthly costs she has borne for the laundromat (30 to 35 euros per month), she has also had no opportunity to set aside funds from her standard benefits to purchase a washing machine.
The plaintiff requests that
1. the judgment of the Hildesheim Social Court of March 15, 2011, as well as the decision of the defendant of September 8, 2008, in the form of the appeal decision of November 17, 2008, be set aside.
2. to order the defendant to partially withdraw the decision of November 1, 2007 and to grant a subsidy of €179.00 for the purchase of a washing machine.
The defendant requests that
the appeal be dismissed,
or alternatively:
that leave to appeal be granted.
He points out that the washing machine belonging to the marital household did not fall to the husband during the division of household goods, but had already become unusable before the separation. Therefore, there was no need for a new item due to the separation. According to the case law of the Federal Social Court (BSG) and the Higher Social Courts (LSG) of North Rhine-Westphalia and Hamburg, there is no entitlement to benefits for initial furnishings for items that have already become unusable. Likewise, the replacement purchase alone, simply by being postponed for years, does not become an initial furnishing within the meaning of Section 23 of the German Social Code, Book II (SGB II).
For further details of the facts and the other submissions of the parties, reference is made to the administrative file concerning the plaintiff as well as the court files of the first and second instances. These were the subject of the oral hearing.
REASONS FOR THE DECISION
The appeal is admissible and well-founded. The plaintiff is entitled to a grant (instead of a loan) in the amount of €179.00 for the purchase of a washing machine. Accordingly, the judgment dismissing the action on March 15, 2011, and the contested decision of September 8, 2008, as amended by the decision on the objection of November 17, 2008, were to be set aside. The defendant is obligated, pursuant to Section 44 of the German Social Code, Book X (SGB X), to partially revoke the decision of November 1, 2007, and to grant the plaintiff a grant of €179.00 for the purchase of a washing machine.
The plaintiff filed her appeal in due form and time. The appeal is admissible despite the amount in dispute being only €179.00, as it was granted by the Social Court due to its fundamental importance (Section 144, paragraphs 1 and 2, no. 1 of the Social Courts Act – SGG). The Senate is bound by this grant of leave to appeal (Section 144, paragraph 3 SGG).
The sole subject of the dispute is the entitlement to benefits for initial housing furnishings pursuant to Section 23 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book II (SGB II), in the version applicable until December 31, 2010 (hereinafter: old version – aF; now: Section 24 Paragraph 3 Number 1 – SGB II). This constitutes an independent, separable subject of dispute that can be submitted to judicial review separately and independently of other benefits for securing subsistence (established case law of the Federal Social Court, see, for example: judgment of September 27, 2011 – B 4 AS 202/10 R, SozR 4-4200 § 23 No. 13, marginal note 11 with further references).
The plaintiff was entitled to benefits under the German Social Code, Book II (SGB II) during the period in dispute (September 2007). At that time, she had reached the age of 15 and had not yet reached the age limit according to Section 7a of the SGB II, was capable of working, in need of assistance, and had her habitual residence in the Federal Republic of Germany (see Section 7 Paragraph 1 of the SGB II regarding these requirements). This is undisputed between the parties. Accordingly, the plaintiff also received unemployment benefit II continuously during the period in dispute.
Contrary to the opinion of the Social Court and the defendant, the plaintiff had a claim in September 2007 pursuant to Section 23 Paragraph 3 No. 1 SGB II aF (now: Section 24 Paragraph 3 No. 1 SGB II) for the granting of a subsidy for the purchase of a washing machine.
The standard benefit (since January 1, 2011: standard allowance) for securing subsistence includes, among other things, food, clothing, and personal hygiene, as well as household goods (§ 20 para. 1 SGB II), meaning, in principle, also the purchase costs for a washing machine claimed by the plaintiff in the present proceedings. However, § 23 para. 3 no. 1 SGB II aF (now: § 24 para. 3 no. 1 SGB II) stipulates that additional benefits are provided for initial furnishings for an apartment, including household appliances.
A washing machine is considered a household appliance necessary for orderly household management within the meaning of Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II aF) (Federal Social Court, Judgment of September 19, 2008 – B 14 AS 64/07 R, BSG 101, 268). Contrary to the defendant's opinion, the purchase of a washing machine in September 2007 also constituted initial equipment within the meaning of Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II aF).
The term "initial furnishing" is not strictly time-related, but rather needs-based. The decisive factor is that there is a need for furnishing an apartment that is not already covered by existing items or otherwise (established case law of the Federal Social Court, see, for example, judgment of May 23, 2013 – B 4 AS 79/12 R, SozR 4-4200 § 24 No. 5, para. 14 with extensive further references). In this respect, the explanatory memorandum to the – essentially identical – Section 31 of the German Social Code, Book XII (SGB XII) already clarified that benefits for initial apartment furnishings are not only available for initial purchases – purely time-related – but also for replacement purchases, e.g., after a house fire or for a first-time rental after imprisonment (see the Federal Government's draft bill on the integration of social assistance law into the Social Code of August 15, 2003, BR-Ds 559/03, page 192). Accordingly, according to the established case law of the Federal Social Court (BSG), claims under Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II) (old version) (now: Section 24 Paragraph 3 No. 1 SGB II) are possible in the event of a renewed need (i.e., in the case of replacement purchases) if the person in need proves that they regularly do not have, or no longer have, the now necessary items of equipment due to special circumstances (see, for example, judgment of May 23, 2013 – B 4 AS 79/12 R, SozR 4-4200 § 24 No. 5, para. 14). These special circumstances also include a newly arising need when establishing a new household after separation from a partner (BSG, judgment of September 19, 2008 – B 14 AS 64/07 R, BSGE 101, 268).
Since the plaintiff separated from her (unmarried) partner in 2003/2004, she no longer had access to a washing machine located in the household. She also had no right to take the washing machine she had previously used with her. Ultimately, this washing machine did not belong to the plaintiff but to her then-partner. Therefore, at the time of the separation and the move to xxx, and thus simultaneously with the commencement of her entitlement to benefits under the Federal Social Assistance Act (BSHG), a new need arose within the meaning of the aforementioned Federal Social Court (BSG) case law.
The plaintiff's claim cannot be countered by arguing that she failed to purchase a washing machine again during her marriage or in the period between her divorce and the onset of her need for assistance in 2004. Rather, the entitlement to benefits for initial furnishing of an apartment exists even if the beneficiary initially refrained from purchasing the necessary household items of their own free will and has already lived for a considerable period of time without these – otherwise essential – items. "Forfeiture" is only considered in exceptional cases (cf. BSG, judgment of August 20, 2009 – B 14 AS- 45/08- R, SozR 4-4200 § 23- No. 5, para. 14 f.; Hengelhaupt in: Hauck/Noftz, SGB II, as of 2014, K § 24 para. 307; von Boetticher/Münder in: LPK – SGB II, 5th edition 2013, § 24 para. 26; Bender in: Gagel, SGB II/SGB III, as of 2014, § 24 SGB II, para. 58).
Such a "forfeiture" did not occur simply because the plaintiff, despite her existing entitlement under Section 23 Paragraph 3 Number 1 of the German Social Code, Book II (SGB II aF) (now: Section 24 Paragraph 3 Number 1 SGB II), had already been receiving benefits since the beginning of her entitlement, did her laundry in a laundromat. Regardless of the fact that this was likely more financially advantageous for the (then responsible) benefits provider and financially disadvantageous for the plaintiff, it was her free choice to cover the costs of using a laundromat from the funds available to her. The defendant cannot draw any adverse legal conclusions for the plaintiff from this with regard to its obligation to provide benefits under Section 23 Paragraph 3 Number 1 SGB II aF (now: Section 24 Paragraph 3 Number 1 SGB II).
The causal link between the separation from her partner in 2003/2004 and the renewed need for a washing machine is not negated by the fact that the plaintiff had been a co-owner of a washing machine (which had recently broken down) for approximately 17 years prior and had since refrained from acquiring a new one. In this respect, it must first be pointed out that in the period immediately preceding the renewed need for a washing machine (i.e., from 2001 to 2003/2004), the plaintiff had absolutely no reason to acquire another washing machine. Her need was met by the opportunity afforded to her by her partner to use his washing machine, which was located in their shared household. The renewed need only arose due to the loss of this opportunity following the separation. Even if the failure to procure replacements in the past were to be a further cause of the renewed need, the separation that took place in 2003/2004 would at least remain a legally significant contributing cause within the meaning of the social law doctrine of causality (cf. on the social law doctrine of causality, for example: BSG, judgment of December 10, 1992 – 11 RAr 31/91 –, para. 22; in detail: Erlenkämper in: Erlenkämper/Fichte, Social Law, 6th edition 2008, section 5, para. 14ff.).
Since the plaintiff has been entitled to the disputed claim since the beginning of her receipt of benefits under Book II of the German Social Code (namely, since the separation from her then life partner) and this claim has not been "forfeited" in the subsequent period, it is no longer relevant in the present case whether the move from xxx to xxx resulted in a further new need within the meaning of the Federal Social Court's case law (namely, due to the loss of the possibility of using a nearby laundromat).
The plaintiff's claim for initial furnishings is valid in the amount asserted (179.00 euros). The defendant has expressly confirmed that this amount is "not objectionable in its amount" (see minutes of the oral hearing before the Social Court of March 15, 2011). Furthermore, the defendant granted the loan in this amount. Accordingly, the Senate has no reason to doubt the appropriateness of the claimed amount. Any further claim is not to be examined due to the limitations of the application.
The defendant cannot object to the judgment ordering the granting of a subsidy of €179.00 by arguing that it was within his discretion to grant the requested initial furnishings as a cash benefit or as a benefit in kind (Section 23 Paragraph 3 Sentence 5 of the German Social Code, Book II, old version; now: Section 24 Paragraph 3 Sentence 5 of the German Social Code, Book II). If, as in the present case, the beneficiary ultimately procures the items in dispute himself, there is generally no longer any legitimate interest in legal protection for a claim for benefits in kind within the meaning of Section 23 Paragraph 3 Sentence 5 of the German Social Code, Book II, old version. The claimant's request is directed exclusively at a monetary benefit, which can only be pursued by way of an action for annulment and performance {BSG, Judgment of May 23, 2013 – B4 AS 79/12 -R-, SozR 4-4200 § 24 No. 5 with reference to BSG, Judgment of August 19, 2010 – B 14 AS 36/09 R).
Due to the plaintiff's legally valid entitlement to a grant (instead of a loan) of €179.00 for the initial purchase of a washing machine, the defendant's decision of November 1, 2007, is partially unlawful. The plaintiff is entitled to a corresponding partial reversal of this decision pursuant to Section 44 of the German Social Code, Book X (SGB X). The decision of September 8, 2008 (as amended by the appeal decision of November 17, 2008), which rejected this application, is subject to annulment. Furthermore, the defendant must subsequently grant the wrongfully denied grant payment pursuant to Section 44, Paragraph 4 of the German Social Code, Book X (SGB X), namely by converting the loan into a grant payment.
The decision on costs is based on § 193 SGG.
There are no grounds for granting leave to appeal (§ 160 para. 2 SGG). The plaintiff's claim arises from the established case law of the Federal Social Court (BSG) regarding § 23 para. 3 no. 1 SGB II (old version) in the event of a renewed need. No further fundamental legal questions arise in the present proceedings.
The following is information on legal remedies.
