VERDICT
In the legal dispute between
1. xxx,
2. xxx,
both residing at xxx
– Plaintiffs –
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
County xxx,
– Defendant –
The 42nd Chamber of the Social Court of Hildesheim, in the oral proceedings of February 23, 2015, with Judge xxx as presiding judge and Lay Judges xxx and xxx presiding, has ruled as follows:
The defendant is ordered, by amending the decision of 08.1.2013 as modified by the appeal decision of 25.2.2013, to pay the plaintiffs further benefits to compensate for the energy costs for hot water supply in the amount of 17.20 euros per month from 01.9.2012 to 31.2012 in accordance with § 6 paragraph 1 AsylbLG.
The defendant shall bear the plaintiff's extrajudicial costs.
The appeal is admitted.
FACTS OF THE CASE
The parties are in dispute over the costs of hot water supply.
The plaintiffs, who receive ongoing benefits from the defendant pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG), live in an apartment they rent themselves in xxx. They heat their domestic hot water using a gas-powered instantaneous water heater. The energy supplier, company xxx, charges the plaintiffs €26.00 per month for this, in the form of advance payments. However, the plaintiffs actually pay €30.00 per month, which is transferred directly by the defendant to company xxx and deducted from their ongoing benefits under the AsylbLG.
By decision dated January 8, 2013, the defendant adjusted the benefits for the period from September 2012 onwards, insofar as the previously applied reduction of benefits in the form of a so-called hot water allowance was eliminated. On January 17, 2013, the plaintiffs filed an objection and claimed additional needs, applying Section 30 Paragraph 7 of the German Social Code, Book XII (SGB XII), to cover the energy costs for hot water preparation. By decision dated February 25, 2013, the defendant rejected the objection. The plaintiffs were only entitled to ongoing benefits in accordance with the transitional provision established by the Federal Constitutional Court on July 18, 2012. The fact that hot water costs were "not taken into account" when calculating benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) had to be accepted by the plaintiffs due to the flat-rate calculation method. Individual additional benefits exceeding those provided under the transitional provisions of the Federal Constitutional Court could not be granted. Section 30, paragraph 7 of the German Social Code, Book XII (SGB XII) does not apply to those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The plaintiffs filed suit on March 4, 2013. They argue that the Federal Constitutional Court, in its decision of August 17, 2012, would have permitted an analogous granting of benefits under Section 30 Paragraph 7 of the German Social Code, Book XII (SGB XII). Otherwise, the constitutionality of the "new benefits" under the transitional provision would not be guaranteed.
The plaintiffs request
that the defendant, by amending the decision of 08 January 2013 as modified by the appeal decision of 25 February 2013, be ordered to pay them further benefits from 01 September 2012 onwards, pursuant to Section 6 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), to compensate for the energy costs for hot water supply in the amount of 17.20 euros per month.
The defendant requests
that the action be dismissed.
He opposes the plaintiffs' arguments and defends the contested decisions.
For further details of the facts and the submissions of the parties, reference is made to the court file and the defendant's administrative records. These documents were the subject of the oral hearing.
REASONS FOR THE DECISION
The admissible action is well-founded. The plaintiffs are entitled to the benefits claimed in the action; therefore, the contested decision of January 8, 2013, as amended by the decision on the objection of February 25, 2013, must be modified to grant the plaintiffs an additional €17.20 per month for hot water preparation.
The legal basis for the plaintiffs' claim is Section 3 Paragraph 1 Sentence in conjunction with Paragraph 2 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the defendant is obligated to cover, among other things, the plaintiffs' "necessary needs" for household goods and consumer goods, which also include electricity.
The Asylum Seekers' Benefits Act (AsylbLG) does not itself define the necessary need. In other words, it is an indeterminate legal term that must be interpreted and defined by case law. The court initially bases its decision on the prevailing legal opinion regarding the definition of "necessary costs" in civil procedure. These are understood to be those costs incurred by actions of the parties that, at the time they were undertaken, appeared objectively necessary and appropriate for pursuing or defending the right in dispute (cf. Thomas-Putzo, ZPO, § 91, marginal note 9).
The only objectively necessary and suitable measure to meet the plaintiffs' electricity needs is the complete assumption of all electricity consumption costs in the plaintiffs' accommodation. This outcome also aligns with the benefits system of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 3 Paragraph 1 Sentence 1 of the AsylbLG, the necessary needs for food, accommodation, heating, clothing, health and personal care, and household goods are initially met by benefits in kind for persons entitled to basic benefits (such as the plaintiffs). With the provision of benefits in kind pursuant to Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the foreigner is regularly accommodated in a reception center (Section 44 of the Asylum Procedure Act (AsylVfG)), communal accommodation (Section 53 AsylVfG), departure facility (Section 61 Paragraph 2 of the Residence Act), or in other housing (transitional shelter, dormitory, etc.). The costs for accommodating benefit recipients in such facilities are generally lower than those for decentralized accommodation in apartments. For this reason, legal scholars (Frerichs, in jurisPK-SGB XII, Section 3 AsylbLG, marginal notes 53 to 55) and some courts (North Rhine-Westphalia State Social Court, decision of April 15, 2013, L 20 AY 112/12 B, juris) hold the view that the necessary need for accommodation within the meaning of Section 3 AsylbLG is, by definition, lower than the The need for accommodation with "reasonable" costs within the meaning of Section 35 Paragraph 2 of the German Social Code, Book XII (SGB XII). However, even with a substitute benefit within the meaning of Section 3 Paragraph 2 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), renting a private apartment is generally only considered in exceptional cases (see Frerichs, loc. cit., marginal note 30 with reference to the Federal Social Court (BSG), judgment of October 6, 2011, case no. B 14 AS 171/10 R). The defining characteristic of asylum seekers' benefits law is the concrete, individualized coverage of needs through benefits in kind. Due to the dependence on the specific needs of the beneficiary, a monthly value of the benefits comparable to the standard lump-sum payment cannot be determined. Even if assistance under the AsylbLG were granted as a cash benefit, this would not lead to a comparability of the regulations of the German Social Code, Book II (SGB II) and the AsylbLG. This follows from the fact that the amounts of Section 3 Paragraph 2 Sentence 2 of the AsylbLG cannot be calculated with or without pocket money as per Section 3 Paragraph 2 Sentence 2 of the AsylbLG. Section 3 paragraph 1 sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) reflects an identical percentage compared to the Social Code Book II (SGB II).
If one follows the aforementioned legal opinion in principle, then the needs, and thus also the electricity needs, of recipients of basic social assistance cannot be determined in the same way as the needs of those entitled to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) or recipients of benefits under the German Social Code, Books II and XII (SGB II and XII). The court can initially leave open the question of whether the aforementioned legal opinion would (only) apply if a benefit recipient were housed in an institution. This is because the facts of the case at hand are different. The plaintiffs rented the apartment in question in xxx with the knowledge and consent of the defendant. As long as the defendant allows the plaintiffs to live in this privately rented apartment, he must also cover the (full) electricity costs for this apartment. The Asylum Seekers' Benefits Act (AsyIbLG) does not, from the outset, include any limitation to an upper level of reasonableness, however defined, as is provided for, for example, in basic income support benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII) (see Section 22 Paragraph 1 Sentence 1 SGB II or Section 29 Paragraph 1 Sentence 2 SGB XII). Such a limitation is also unnecessary, since the law itself, even for analogous benefits under Section 2 AsylbLG, permits accommodation in communal housing according to Paragraph 2 of that section, and, in any case, outside of the benefits under Section 2 AsylbLG, regularly provides for in-kind benefits for consumer goods and supplies – as explained above (Section 3 Paragraph 1 Sentence 1 AsylbLG); in such accommodations, the benefit provider under the AsylbLG can control the amount of excessive electricity costs from the outset.
To the extent that the defendant argues that, according to Section 3 Paragraph 2 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), costs deemed unreasonable under social assistance law are not to be covered, the court finds no support in the law for those entitled to basic benefits under Sections 1 and 3 of the AsylbLG. According to Section 2 Paragraph 1 in conjunction with the provisions of Book XII of the German Social Code (SGB XII), the law treats those entitled to analogous benefits and recipients of basic benefits under Sections 1 and 3 Paragraphs 1 and 2 of the AsylbLG differently (see also Federal Social Court (BSG), Judgment of October 6, 2011, Case No. B 14 AS 171/10 R). According to the 14th Senate of the Federal Social Court (BSG), the defining characteristic of asylum seeker benefits law is the concrete, individualized coverage of needs through in-kind benefits (§ 3 para. 1 sentence 3 AsylbLG; cf. Frerichs in jurisPK-SGB XII, § 3 AsylbLG marginal note 30). Because of the dependence on the specific needs of the beneficiary, a monthly value of the benefits comparable to a standardized lump-sum payment cannot be determined. Even if assistance under the AsylbLG is provided as a cash benefit, this does not lead to a comparability between the regulations of the German Social Code, Book II (SGB II) and the AsylbLG. This follows from the fact that the amounts in § 3 para. 2 sentence 2 AsylbLG, neither with nor without pocket money as per § 3 para. 1 sentence 4 AsylbLG, do not represent an identical percentage compared to the SGB II.
If, in individual cases, those entitled to basic benefits are placed in a better position under certain circumstances because, according to the jurisprudence of this chamber (see decision of February 1, 2012, S 42 AY 177/10 ER, juris para. 79 et seq.), they can claim benefits in kind, this must be accepted. The chamber draws attention to the legislator's approach in the area of Social Code II / Social Code XII following the amendment of March 11, 2011, which differs from that of the Asylum Seekers' Benefits Act (AsylbLG). According to the concept of the standard rates in Social Code II and Social Code XII, unlike in the Asylum Seekers' Benefits Act, a fixed basket of goods model is not used; instead, the legislator opted for the so-called statistical model.
According to this, recipients of assistance under the Asylum Seekers' Benefits Act (AsylbLG) are responsible for meeting their needs within their respective benefit groups using the basic benefits. Since the legal concept of basic benefits does not specify a fixed basket of goods available to the recipient, but rather requires them to manage the funds provided and, if necessary, to cover their necessary living expenses by reallocating the resources available for the individual benefit groups, this constitutes the legislator's intended and therefore objectively justified reason for the unequal treatment between those receiving analogous benefits and those receiving basic benefits.
Even after the transitional provision of the Federal Constitutional Court's ruling of July 18, 2012, those entitled to basic benefits do not receive a standard allowance, but rather remain entitled to benefits in kind. This entitlement can only be replaced by substitute or cash benefits in cases of necessity, as defined by the Chamber's case law. This entitlement applies to the individual needs of benefit recipients listed in Section 3, Paragraph 1. Therefore, these needs must be considered individually, and it is not impossible that a different group of needs, which could potentially be met by benefits in kind, could achieve savings for the benefits agency by opting for such benefits.
Since the plaintiffs expressly claim only €17.20 per month in further performance claims, the judgment against the defendant had to be limited accordingly.
Whether the plaintiffs' claim can be based on an analogous grant of benefits under Section 30 Paragraph 7 of the German Social Code, Book XII (SGB XII), irrespective of the above considerations, can remain undecided.
The decision on costs is based on § 193 SGG.
Since the clarification of the indeterminate legal concept of "necessary need" in Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) has not yet been conclusively carried out by the higher and highest courts, the case is of fundamental importance, which is why the appeal must be admitted pursuant to Section 144 Paragraph 2 No. 1 of the Social Courts Act (SGG).
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