VERDICT
In the legal dispute
xxx,
– Plaintiff and Respondent –
Legal Representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Defendant and Appellant –
The 7th Senate of the Lower Saxony-Bremen State Social Court, without oral proceedings, rendered the following judgment on June 23, 2015 in Celle, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx, the judge of the Social Court xxx, and the lay judges xxx and xxx:
The defendant's appeal against the judgment of the Hildesheim Social Court of April 15, 2013 is dismissed.
The defendant shall bear the plaintiff's necessary extrajudicial costs in both instances.
The appeal is not admitted.
FACTS OF THE CASE
The plaintiff is challenging a decision by the defendant in connection with benefits under the Second Book of the Social Code (SGB II), by which the defendant refused to review the approval notices and pay further housing costs for the period from March 1, 2008 to August 31, 2008.
The plaintiff, born in 19xx, and her son, born in 20xx, were receiving benefits under the German Social Code, Book II (SGB II) during the period in question. Until and including February 2008, they both lived in an apartment in xxx in xxx and moved to an apartment in xxx on March 1, 2008 (see pp. 189 et seq. of the administrative file). The apartment has a size of 80 m² and a total monthly rent of €395.00 plus a heating cost prepayment of €65.00 (see rent certificate, p. 199 of the administrative file).
By decision dated February 26, 2008, as amended by decisions dated June 19, 2008, and July 25, 2008, the defendant granted the plaintiff and her son benefits for the aforementioned period in the amount of €707.31 per month (March to June 2008) and €698.31 per month (July and August 2008), respectively. The reduced benefits resulted from an increase in the standard benefit rate and higher child support payments from the father, effective July 1, 2008. In calculating the plaintiff's needs, the defendant considered not only the standard benefit rates but also a single-parent supplement. Of the actual housing costs, only €320.00 and heating costs of €60.31 were taken into account. The defendant considered child benefit and the child support payments for the plaintiff's son as income.
By letter dated November 23, 2010, the plaintiff and her son filed an application for review of the aforementioned decisions pursuant to Section 44 of Book Ten of the German Social Code (SGB X). In support of their application, they stated that the actual costs of accommodation should be covered. In further letters dated the same day, the plaintiff and her son filed corresponding applications for the period from April 2007 up to and including December 2010.
By a decision dated December 7, 2010, the municipality of xxx, acting on behalf of the defendant, rejected the plaintiff's present and subsequent applications. Her son's applications were decided separately. The decision was based on the fact that the accommodation costs had already been taken into account up to the maximum limit.
The plaintiff objected to this decision by letter dated December 22, 2010, stating that housing costs should be granted in accordance with the table in Section 8 of the Housing Benefit Act (WoGG) aF, plus a supplement of 10%, because there was no rent index and no valid rent database relevant to basic income support.
The present objection and the subsequent objections were rejected by a formal notice of rejection dated March 25, 2011. The present objection was deemed inadmissible because the plaintiff and her son had filed a total of 18 objections against two notices issued by the municipality of xxx. Of these, only two objections were admissible, as the pending nature of the first two proceedings precluded the further objection proceedings. Only one objection could be filed against each notice. Furthermore, the defendant stated, with regard to the period from March 1, 2008, to August 31, 2008, that the maximum living space for two people, according to the guidelines for social housing promotion in Lower Saxony, was 60 m². Extensive investigations within the defendant's jurisdiction had determined that the upper limit for reasonable housing costs within the municipality of xxx was €320.00 per month. Only this amount could therefore be covered.
On April 7, 2011, the plaintiff filed a lawsuit with the Hildesheim Social Court (SG), arguing, among other things, that contrary to the defendant's view, the objection was not inadmissible. Each benefit period constitutes a separate subject matter of the dispute, to be considered independently under procedural law. According to the jurisprudence of the Federal Social Court (BSG), extending the subject matter of the dispute to subsequent periods is generally not permissible. Therefore, a separate procedure must be conducted for each benefit period, which also applies to review applications under Section 44 of the German Social Code, Book X (SGB X). It is not the defendant's prerogative to independently determine the subject matter of the dispute by combining different procedures through a single decision covering several disputed benefit periods. While the defendant may do so for administrative simplification, this does not affect the admissibility of the appeals filed against it. Furthermore, the defendant is obligated to bear the actual rent costs payable by the plaintiff. The expert opinion of F+B GmbH (see below) does not meet the requirements of the Federal Social Court (BSG) for a "conclusive concept" for determining accommodation costs, so that the defendant is unable to determine the reasonable costs of accommodation within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). In the absence of other indications, the plaintiff is therefore entitled to the costs of accommodation for the period from March 1, 2008 to August 31, 2008, based on the values in the table to Section 8 of the Housing Benefit Act (WoGG), increased by a safety margin of 10 percent.
The defendant, on the other hand, defended his position that it was inadmissible to challenge an administrative procedure with 18 objections. Unlike an objection and a lawsuit, a review under Section 44 of the German Social Code, Book X (SGB X) is not dependent on an application. Therefore, it is not within the applicant's power to determine the subject matter of the administrative procedure. Sections 8, 9, and 18 of the SGB X apply here, according to which a consolidation of proceedings is possible and occurred in the present case. During the legal proceedings, the defendant submitted an expert opinion from F+B GmbH to determine the reasonable housing costs for his area of responsibility under Section 22 of the German Social Code, Book II (SGB II), and initially maintained that this expert opinion represented a coherent concept within the meaning of the Federal Social Court's (BSG) jurisprudence.
In its judgment of April 15, 2013, the Social Court (SG) overturned the decision of December 7, 2010, as amended by the appeal decision of March 25, for the period from March 1, 2008, to August 31, 2008, and, by amending the decision of February 26, 2008, as amended by the amending decisions of June 19, 2008, and July 25, 2008, ordered the defendant to pay the plaintiff additional housing costs in the total amount of €96.00 and granted leave to appeal. Contrary to the defendant's view, the appeal was admissible. Even if the benefit provider combines several separate review proceedings against different benefit decisions into a single decision, the beneficiary is not precluded from filing separate appeals. Filing separate lawsuits against an appeal decision is also possible. This does not constitute a case of pending litigation. Furthermore, the plaintiff is entitled to housing costs in accordance with the right-hand column of the table to Section 8 of the Housing Benefit Act (WoGG) (old version), plus a 10% safety margin. According to this, the maximum eligible housing costs for a two-person household in xxx amount to €352.00 (€320.00 + €32.00). Since the plaintiff's share of this is 50%, i.e., €176.00 per month, and the defendant only covered €160.00, the plaintiff is entitled to an additional €16.00 per month, totaling €96.00 for the entire period in dispute (€16.00 x 6). The defendant's expert opinion does not constitute a conclusive concept within the meaning of the Federal Social Court's (BSG) jurisprudence, because the object of the observation is not even defined in the expert opinion. Furthermore, the method of data collection is objectionable, the scope of the collected data is not representative, and the capping limit of the 33% quantile is incomprehensible.
The defendant filed an appeal on June 11, 2013, against the judgment served on May 16, 2013, elaborating on his argument that the action was inadmissible. The Thuringian State Social Court, cited by the Social Court, incorrectly assumed that combining administrative proceedings merely summarizes the individual rulings in a single decision, while still maintaining the existence of multiple administrative acts. Rather, the defendant had simply issued a ruling for the entire period under review. As the authority in charge of the review process, the agency could combine several applications into a single administrative proceeding. The regulatory content of the administrative act to be issued under Section 44 of the German Social Code, Book X (SGB X), is determined solely by the issuing authority. The plaintiff, on the other hand, could not unilaterally divide the regulatory content of the decision and conduct multiple proceedings. Furthermore, contrary to the Social Court's opinion, the collected data was representative, and the use of existing rent data was permissible. The determination of the reasonable rent limit was based on existing rents, and in a further step, the collected asking rents were used to check whether housing was available in the abstract at the determined values.
Following the Senate's notification of December 3, 2013, the defendant initially defended his position that the expert opinion of F+B GmbH constituted a so-called conclusive concept. In a written submission dated June 11, 2015, he stated that he no longer adhered to this position.
The defendant requests that
the judgment of the Hildesheim Social Court of April 15, 2013 be overturned and the action dismissed.
The plaintiff requests that
the appeal be dismissed.
She considers the decision of the Social Court to be correct for the reasons stated therein.
The parties involved have agreed to a decision by the Senate without oral proceedings.
For further details and the submissions of the parties involved, reference is made to the contents of the court file and the administrative file submitted by the defendant.
REASONS FOR THE DECISION
The Senate was able to decide without an oral hearing pursuant to Section 153 Paragraph 1 of the Social Courts Act (SGG) in conjunction with Section 124 Paragraph 2 SGG, because the parties involved had agreed to this procedure.
The appeal admitted by the Social Court pursuant to Section 144 Paragraph 2 No. 1 of the Social Courts Act (SGG) is unfounded.
The Social Court (SG) was correct in its combined action for annulment and performance (§§ 54 para. 1, 56 SGG) to set aside the decision of December 7, 2010, as amended by the decision on the objection of March 25, 2011, and to amend the decision of February 26, 2008, as amended by the amending decisions of June 19, 2008 and July 25, 2008, which was submitted for review, in such a way as to oblige the defendant to grant the plaintiff further accommodation costs in the amount of €96.00.
1.
Neither the plaintiff's action nor her objection was inadmissible due to pending legal proceedings, nor was the action unfounded due to the inadmissibility of the objection.
The Social Court's (SG) statements on this matter are entirely correct. While the defendant is indeed free to reject multiple review applications with a single decision, applying Sections 8, 9, and 18 of the German Social Code, Book X (SGB X), in the interest of a simple, efficient, and expeditious administrative procedure, the defendant is mistaken in believing that issuing a decision constitutes even a single administrative act under Section 31 of the SGB X. According to the legal definition in Section 31, sentence 1, of the SGB X, an administrative act is any order, decision, or other sovereign measure taken by an authority to regulate an individual case in the field of public law and which is directed at producing direct legal effects externally. With her applications under Section 44 of the SGB X for review of the benefit award notices for the period from April 2007 to December 2010, the plaintiff initiated several administrative procedures, each of which must culminate in the issuance of an administrative act, each of which establishes a regulation for the individual review process. While the defendant may, for reasons of administrative efficiency, decide on these applications within a single decision, this form of procedural processing has no bearing on whether the defendant then makes a ruling on a single case or several rulings for different individual cases.
While Section 113 Paragraph 1 of the Social Courts Act (SGG) regulates the formal consolidation of legal proceedings, resulting in a unified proceeding from the consolidated proceedings, the Social Code Book X (SGB X) lacks such a regulation for administrative proceedings.
Since several administrative acts were issued by the decision of December 7, 2010, the plaintiff was entitled to file a separate objection to each administrative act pursuant to Sections 78 Paragraph 1 and 83 of the Social Court Act (SGG). Section 86 of the Social Court Act (SGG), according to which an administrative act that amends another administrative act becomes the subject of the ongoing preliminary proceedings, with the consequence that an objection against it would be inadmissible, does not apply.
The defendant was then able to consolidate the individual objection proceedings in the objection decision of March 25, 2011. However, this did not alter the legal assessment of the original administrative acts in the issued decision. The defendant did not issue a single objection decision with only one ruling (e.g., regarding the total period), but rather made a separate decision regarding each objection against each individual original ruling. Consequently, the plaintiff is generally free to challenge the then "comprehensive" objection decision by means of a single lawsuit, or to file a separate lawsuit against each individual ruling within the meaning of Section 31 of the German Social Code, Book X (SGB X). The individual lawsuits are therefore inadmissible neither due to pending litigation under Section 202 of the Social Courts Act (SGG) in conjunction with Section 17 Paragraph 1 Sentence 2 of the Courts Constitution Act (GVG) nor due to lack of a need for legal protection (as in this case: Thuringian State Social Court, decision of July 24, 2012 – L 4 AS 1353/11 B, juris).
2.
The sole subject of this dispute is the plaintiff's accommodation and heating costs for the period from March 1, 2008, to August 31, 2008, and not her standard benefits. Throughout her submissions in the objection, legal action, and appeal proceedings, the plaintiff, represented by counsel, has consistently focused exclusively on the approval of her actual accommodation and heating costs.
According to the Federal Social Court's (BSG) jurisprudence, such a separation and limitation of the subject matters of dispute—standard benefits and the costs of accommodation and heating—is permissible. While, in disputes concerning higher benefits under Book II of the German Social Code (SGB II), all eligibility requirements must generally be examined in terms of both their existence and amount (see BSG, Judgment of April 6, 2011 – B 4 AS 119/10 R = SozR 4-1500 § 54 No. 21), the BSG has made an exception for accommodation and heating. This is because the responsibilities for the standard benefit (now: standard allowance) on the one hand and for the benefits for accommodation and heating on the other are different, and the benefits are substantively distinguishable. Legally, they are therefore two independent benefits and rulings (BSG, Judgment of November 7, 2006 – B 7b AS 8/06 R = SozR 4-4200 § 22 No. 1 and Judgment of September 22, 2009 – B 4 AS 70/08 R, juris).
3.
The defendant wrongly rejected the amendment of the decision of 26 February 2008, which was submitted for review, as amended by the amending decisions of 19 June 2008 and 25 July 2008, with his decision of 7 December 2010, as amended by the decision on the objection of 25 March 2011.
According to Section 44 Paragraph 1 Sentence 1 of the Tenth Book of the German Social Code (SGB X) in conjunction with Section 40 Paragraph 1 Sentence 1 of the Second Book of the German Social Code (SGB II) (in the version of July 20, 2006 – old version), an administrative act, even after it has become legally binding, must be revoked with retroactive effect 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 or contributions were wrongfully levied. According to Section 44 Paragraph 2 of the SGB X, an unlawful, non-beneficial administrative act, even after it has become legally binding, must be revoked in whole or in part with future effect. It can also be revoked retroactively.
These conditions are met here.
The decisions of February 26, 2008, as amended by the decisions of June 19, 2008 and July 25, 2008, are unlawful insofar as the plaintiff is entitled to reimbursement of higher costs for accommodation and heating for the period in dispute.
a)
The plaintiff is entitled to benefits under Sections 7 and 19 of the German Social Code, Book II (SGB II) (in the version valid until December 31, 2010). According to these provisions, employable persons in need of assistance receive unemployment benefit II to secure their livelihood, including reasonable costs for accommodation and heating (Section 19, Sentence 1, SGB II). The Senate has no indication that the plaintiff would not have been entitled to benefits in the aforementioned sense.
b)
Pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the plaintiff is entitled to reimbursement of her accommodation and heating costs. These costs will be reimbursed in the amount of the actual expenses, provided they are reasonable.
(aa)
The assessment of appropriateness limits the amount of reimbursable costs (see Federal Social Court (BSG), judgment of September 22, 2009 – B 4 AS 18/09 R = SozR 4-4200 § 22 No. 30). "Appropriateness" is an indeterminate legal concept subject to full judicial review (see BSG, judgment of November 7, 2006 – B 7b AS 10/06 R = SozR 4-4200 § 22 No. 2). According to 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 area must be determined. In a further step, it must be ascertained how much can be spent on the housing market of the comparison area for an apartment of basic standard. The aim of the investigation is to determine the price per square meter for apartments of basic standard, which, according to the product theory, is to be multiplied by the appropriate square footage. The result is the regionally appropriate rent (see Federal Social Court [BSG], judgment of September 22, 2009 – B 4 AS 18/09 R = SozR 4-4200 § 22 No. 30). The determination of the regionally appropriate housing costs must be based on a verifiable, coherent concept for data collection and analysis, adhering to recognized mathematical and statistical principles. According to the BSG (ibid.), a concept exists if the basic income support provider has proceeded systematically, that is, in the sense of a systematic investigation and evaluation of general, albeit location- and time-specific, facts for all cases within the relevant comparison area, and not merely on a case-by-case basis.
In accordance with these guidelines, the defendant correctly considered the appropriate living space limit for the plaintiff and her son, as stipulated by the applicable guidelines on social housing promotion in Lower Saxony (housing promotion regulations – WFB –; see section B. 7.1 appropriate living space), which are up to 60.00 m² according to the established case law of the Federal Social Court (see judgment of December 12, 2013 – B 4 AS 87/12 R with further references = SozR 4-4200 § 22 No. 73). However, the defendant's determination of the appropriate rent per square meter for the appropriate housing standard in the apartment size category up to 60.00 m² is not based on a coherent concept (see below). Since no data is available for the period in dispute that would be necessary for the creation of a coherent concept, neither a "remedial action" by the defendant is possible, nor is it apparent how the Senate could create such a concept here (regarding the court's investigative requirements: BSG, judgment of December 17, 2009, B 4 AS 50/09 R = SozR 4-4200 § 22 No. 29).
In the absence of any means of ascertaining the costs of accommodation, the expenses of the plaintiff and her son are to be covered on the basis of the right-hand column of the housing benefit table of Section 8 of the Housing Benefit Act (WoGG) as valid until October 1, 2008, plus a safety margin of 10% (see Federal Social Court (BSG), judgment of December 17, 2009, B 4 AS 50/09 R = SozR 4-4200 § 22 No. 29 and Higher Social Court (LSG) of Lower Saxony-Bremen, judgment of April 29, 2014 – L 7 AS 330/13, juris).
Since xxx is classified in rent level 1, this results in a reasonable rent of €352.00 (€320.00 plus €32.00) for a household with two members. This gives the plaintiff a claim of €176.00 per month. However, since the defendant only considered €320.00 in his needs assessment, and thus €160.00 per month for the plaintiff, this results in a further claim of €16.00 per month, totaling €96.00 for the period from March to August 2008 inclusive. The Social Court's findings were therefore entirely correct.
bb)
The expert opinion submitted by the defendant from F+B GmbH does not meet the requirements established by the BSG for a conclusive concept.
In its judgment of 29 April 2014 in case L 7 AS 330/13, the Senate stated the following:
“[…] The data collected by F+B GmbH in 2008 do not meet the minimum requirements for a coherent concept set by the Federal Social Court (BSG) in essential respects, because there is no comprehensible definition of the subject of observation (aa), the cap was set arbitrarily (bb), and as a result, it is not comprehensible that the costs for basic housing are accurately reflected (cc). […]”
The Senate continues to adhere to these statements. The defendant's appeal against this decision to the Federal Social Court was unsuccessful (decision of November 28, 2014 – B 14 AS 215/14 B). In his written submission of June 11, 2015, the defendant stated that he no longer maintained the view that the aforementioned expert opinion constituted a coherent concept in the explained sense.
4.
The illegality of the contested decision also results in a violation of the plaintiff's own rights, § 54 para. 2 sentence 1 SGG.
5.
The decision on costs is based on Section 193 of the Social Court Act (SGG). Contrary to the defendant's assertion, there is no evidence of frivolousness or abusiveness in filing the objection or the lawsuit, which could be considered in the cost decision. The synergy effects he cites from conducting parallel administrative and legal proceedings can only be taken into account when determining costs.
6.
There are no apparent grounds for granting leave to appeal (§ 160 para. 2 SGG).
The following is information on legal remedies.
