VERDICT
In the legal dispute between
1. xxx,
2. xxx,
3. xxx,
– Plaintiffs –
Legal representative:
for 1-3: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen district xxx,
– Defendant –
The 26th Chamber of the Social Court of Hildesheim, in the oral proceedings of March 3, 2017, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decision of October 28, 2013, as amended by decisions of November 19, 2013, January 9 and February 11, 2014, and as modified by the appeal decision of February 12, 2016, to grant the plaintiffs further benefits to secure their livelihood under the German Social Code, Book II (SGB II), in the amount of €27.75 per month for the period from September 1 to November 30, 2013, and in the amount of €72.75 per month for the period from December 1, 2013, to February 28, 2014.
2. The defendant shall reimburse the plaintiffs for their extrajudicial costs.
3. The appeal is admitted.
FACTS OF THE CASE
The plaintiffs seek, within the framework of benefits to secure their livelihood under the Social Code Book Two (SGB II) — basic income support for job seekers — the granting of higher accommodation allowances for the period from September 1, 2013 to February 28, 2014.
The plaintiff (plaintiff no. 1), born in 1969 and capable of working, her husband (plaintiff no. 2), born in 1962 and also capable of working, and their daughter (plaintiff no. 3), born in 2002, receive benefits to secure their livelihood. They initially lived in a 125 m² apartment on xxx Street in Hann. Münden, paying a monthly rent of €400, plus €110 for utilities and €95.49 for heating. The defendant, as far as can be seen from the administrative file, did not grant them full housing cost reimbursement starting in 2011.
The plaintiffs moved into a 120 m² apartment on xxx Street in Hann. Münden on December 1, 2013, without prior approval, at a monthly rent of €450, plus €120 for utilities and €120.63 for heating. Their son, xxx, born in 1994, lived with the plaintiffs in a shared apartment from September 1, 2013, to January 15, 2014, and also received benefits under the German Social Code, Book II (SGB II).
Plaintiff 1 earned gross income from dependent employment in September 2013 (€1,625.04 net), gross income in October (€1,535.20 net), gross income from November 2013 to January 2014 (€1,750.00 net per month), and gross income from February (€1,200.00 net) (€1,600.00 net per month). Plaintiff 2 earned €450.00 from dependent employment in September 2013. Plaintiff 3 received child benefit of €184.00 per month. The plaintiffs had no assets of value during the period in dispute.
By amended decision dated October 28, 2013, the defendant provisionally granted the plaintiffs benefits to secure their livelihood for the months of September 2013 to February 2014 in the amount of €370.79 for September 2013, €711.44 for October, €576.30 each per month for November and December, and €508.32 per month for January and February 2014. In doing so, he took into account housing costs of €473 per month.
The plaintiffs filed an objection on November 29, 2013, arguing that the accommodation costs taken into account were too low.
The defendant amended the grant by decision dated November 19, 2013, to a provisional amount of €336.28 for December 2013 and €368.32 per month for January and February 2014, while maintaining the same housing needs. By further amendment decision dated January 9, 2014, he granted the plaintiffs benefits in the amount of €405.37 for February 2014. By a further amendment decision dated February 11, 2014, he granted €526.00 for that month.
The defendant rejected the objection with a formal notice of rejection dated February 12, 2016, arguing that a conclusive concept from the company Analyse & Konzepte (A&K) precluded the applicability of the housing benefit table. The housing benefit table was no longer applicable after the son, xxx, moved in on September 1, 2013. The accommodation costs remained unreasonable even after the move on December 1, 2013.
The plaintiffs filed a lawsuit on February 28, 2016.
They argue that
the defendant, in the A&K report, terminated the aggregation of municipalities as soon as the minimum population of 20,000 was reached. Such a rigid representativeness threshold is detrimental to the data, as the specific structure of the region is crucial. The report incorrectly assumes reasonable commuting times, which is incompatible with the limits for reasonable housing costs and the spatial comparison criteria. It is unclear why Hann. Münden, with a population of 24,390, does not constitute a comparison area in its own right. Including the municipality of Staufenberg simply because it lacks sufficient housing is inadmissible. There is no homogeneous living and residential area. The population density is 201 inhabitants/km² in Hann. Münden and 104 inhabitants/km² in Staufenberg. The defendant failed to address any specific amenities, with the exception of bathrooms and central heating. It is a presumption to claim that the apartments with the lowest rents are those of a basic standard. For this reason, the F+B expert opinion already failed before the Lower Saxony-Bremen State Social Court (LSG). It is quite possible that an apartment with high-quality amenities in a poor location could be cheaper than a low-standard apartment in a good location. Furthermore, the rents for new leases were wrongly excluded from the study. The statement that only 60 percent of social housing units are offered on the market refers to the city of Offenbach. The defendant should also have identified the directly marketed apartments. The ownership percentage of each apartment should have been determined. Furnished apartments were wrongly excluded. Consequently, the housing allowance table plus a 10 percent surcharge should be applied.
The plaintiffs request
that the defendant, by amending the decision of October 28, 2013, as amended by decisions of November 19, 2013, January 9 and February 11, 2014, and as modified by the appeal decision of February 12, 2016, be ordered to grant the plaintiffs, for the period from September 1, 2013 to February 28, 2014, housing allowance within the framework of benefits to secure their livelihood, applying the housing allowance table plus a safety margin of 10 percent, and, in the event of an unsuccessful appeal, to be granted leave to appeal.
The defendant requests that
the action be dismissed and, in the event of an unsuccessful appeal, that leave to appeal be granted.
The defendant requests
that an expert opinion be obtained on the question of whether the city of Hann. Münden and the municipality of Staufenberg constitute sufficiently large areas of residential development which, due to their spatial proximity to each other, their infrastructure and their transport connections, form a homogeneous living and residential area overall.
He further requests that
an expert opinion be obtained on the evidentiary question of whether the A&K report has a clearly defined object of observation in the entire housing market of the Göttingen district.
He further requests that
an expert opinion be obtained on the evidentiary question of whether housing value characteristics, beyond the exclusion of the lowest standard, have no influence on the defendant's concept for determining the reasonable limit for accommodation costs by means of an iterative process.
He requests that
an expert opinion be obtained on the question of whether, if the comparison area of Hann. Münden and Staufenberg were to be divided, other equivalent possibilities for forming a comparison area exist for the municipality of Staufenberg that integrate the municipality of Staufenberg into sufficiently large residential developments which, due to their spatial proximity to each other, their infrastructure and their transport connections, form an overall homogeneous living and residential area.
Referring to the issued decisions, he argues:
The A&K expert opinion represents a coherent concept within the meaning of the jurisprudence of the Federal Social Court (BSG). The starting point for establishing the local comparison area is the regional spatial planning program. The town of Hann. Münden is a medium-sized center, with close ties between it and Staufenberg. The basic center of Staufenberg, with approximately 2,200 inhabitants, is sparsely populated, and also has close ties to Kassel. Due to its rural structure and limited housing market, Staufenberg does not constitute a separate comparison area. The defendant was correct in excluding substandard and furnished apartments. The latter is explained by the fact that a distinction between the base rent and the cost of furnishings is not possible. The defendant methodologically opted for a concept that makes demand the decisive criterion for determining the limit of reasonableness. Due to the freedom of methodology, this fundamental concept cannot be rejected by the court. The factors influencing the rental price, such as amenities, location and building structure, could be reflected in the price.
Regarding the further submissions of the parties, reference is made to the minutes of the oral hearing, the contents of the court file and the administrative files consulted in the legal proceedings S 26 AS 101/16.
REASONS FOR THE DECISION
The lawsuit, which sought the granting of housing allowance according to the value of the housing benefit table plus a safety margin of 10 percent, was successful.
The defendant's decision of October 28, 2013, amended by decisions of November 19, 2013, January 9 and February 11, 2014, as modified by the decision on the objection of February 12, 2016, is unlawful to the extent stated and infringes the plaintiffs' rights in this respect.
The decisions of November 19, 2013, January 9 and February 11, 2014 have become the subject of the objection procedure pursuant to Section 86 of the Social Courts Act (SGG).
The dispute concerns the period from September 1, 2013, to February 28, 2014, which was regulated in the contested decisions. The authority's decisions regarding subsequent periods are not admissible under Section 96 of the Social Court Act (SGG) (see judgments of the Federal Social Court (BSG) of November 7, 2006 – B 7b AS 14/06 R – and June 25, 2008 – B 11 b AS 35/06 R –).
The plaintiffs are entitled to benefits during the period in dispute pursuant to Section 19 Paragraph 1 of the German Social Code, Book II (SGB II), because their income was insufficient to cover their ongoing need for assistance.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are recognized up to the amount of the actual expenses, provided these are reasonable. If the expenses for accommodation and heating exceed what is reasonable for the specific circumstances of the individual case, they are to be recognized as a need for as long as it is not possible or reasonable for the person entitled to benefits or the household to reduce the expenses by moving, subletting, or by other means, but generally for no longer than six months (Sentence 3). A reduction of the expenses deemed unreasonable according to Sentence 1 does not have to be demanded if this would be uneconomical, taking into account the costs that would be incurred in moving (Sentence 4).
Pursuant to Section 22 Paragraph 1 Sentence 3 of the Social Court Act (SGG), the defendant's request for a reduction in benefits dated January 9, 2014, is only effective from September 1, 2014. For this reason alone, the actual accommodation costs for a four-person household must be granted for the period from December 2013 to February 2014.
The subject matter of the dispute has been effectively limited to the costs of accommodation. This constitutes a severable, separately appealable order (see judgments of the Federal Social Court of August 6, 2014 – B 4 AS 55/13 R –, March 29, 2007 – B 7b AS 2/06 R –, November 7, 2006 – B 7b AS 8/06 R – and February 27, 2008 – B 14 AS 23/07 R –). However, the assessment of reasonableness must be carried out separately for accommodation and heating costs, so that an overall reasonableness limit in the sense of an extended product theory is to be rejected (see judgments of the Federal Social Court of July 2, 2009 – B 14 AS 36/08 R – and December 17, 2009 – B 4 AS 50/09 R –). The lawsuit does not pursue higher heating costs, especially since the defendant has already covered the actual heating costs of €120.63 per month.
Furthermore, the defendant, in the opinion of the court, lacks a coherent concept for determining reasonable housing costs in the Hann. Münden/Staufenberg area. The A&K expert opinion obtained by the defendant does not meet the requirements of the Federal Social Court's (BSG) jurisprudence.
According to the jurisprudence of the Federal Social Court (BSG) (see judgment of November 7, 2006 – B 7b AS 18/06 R –), the appropriateness of accommodation costs (basic rent and utilities) must be examined in several steps: First, the size of the apartment rented by the person in need of assistance or by the household must be determined; that is, the square footage of the apartment in question must be ascertained. The apartment size must be determined in accordance with the state-level guidelines on social housing. After determining the apartment size, the standard of the apartment must be considered as a further factor. Expenses for an apartment are only considered appropriate if, in terms of its furnishings, location, and building structure, it meets basic and fundamental needs and does not represent a high standard of living. Therefore, with regard to the aforementioned criteria, the factors that regularly determine the price per square meter, which are reflected in the rent, the apartment must be in the lower segment of comparable apartments in the relevant geographical area. The primary spatial benchmark for comparison is the place of residence of the person in need of assistance, because a move to a different location that would entail abandoning their social environment cannot generally be expected of them (see Federal Social Court judgment of November 7, 2006 – B 7b AS 10/06 R –). However, the assessment of appropriateness is not to be based solely on abstract, market-rate rents. Rather, according to the Federal Social Court's jurisprudence, the authority must, as a final step, conduct a concrete assessment of appropriateness, namely whether another suitable and more cost-effective apartment is actually and specifically available and accessible to the person in need of assistance. If no such concrete alternative accommodation exists, the expenses for the accommodation actually rented are to be considered specifically appropriate (see Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R – para. 22).
According to the case law of the Federal Social Court (BSG), the basic income support provider must create a coherent concept which, according to the judgment of the aforementioned court of September 22, 2009 – B 4 AS 18/09 R – must meet the following criteria:
# 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 court is convinced that the defendant lacks a coherent concept for determining housing costs. Therefore, the values in the housing benefit table, as amended and in force since January 1, 2009 (§ 12 Housing Benefit Act (WoGG)), plus a 10 percent safety margin, must be applied.
When determining reasonable housing needs, the appropriate size of the apartment must be considered (see the Federal Social Court's judgment of November 7, 2006 – B 7b AS 18/06 R). In Lower Saxony, the guidelines for social housing promotion (Housing Promotion Regulations – WFB 2003) are regulated in the circular of June 27, 2003 (Lower Saxony Ministerial Gazette 2003, Issue 27, p. 580). According to Section B No. 11.2 of the Housing Promotion Regulations – WFB 2003 – a living space of up to 75 m² is considered appropriate for a three-person household and up to 85 m² for a four-person household. The apartment occupied by the plaintiffs, with a living space of 120 m², is unreasonably large.
(I)
First, within the framework of a coherent concept, the local comparison area must be established. It is necessary to describe sufficiently large areas of residential development which, due to their spatial proximity to one another, their infrastructure and, in particular, their transport connections, form an overall homogeneous living and residential area, whereby in rural areas it may be necessary to combine larger areas as a benchmark (cf. judgment of the Federal Social Court of 12 December 2013 — B 4 AS 87/12 R -).
The defendant, in the opinion of the court, wrongly formed a common comparison area of the city of Hann. Münden and the municipality of Staufenberg, so that the A&K expert opinion is not conclusive for this reason alone.
The court bases its assessment on the fact that Hann. Münden is urban, whereas Staufenberg is rural. The differing local conditions are not adequately considered when forming this comparison area. Consequently, there is no homogeneous living and residential area. Short or reasonable commuting times between different comparison areas alone do not create an overall homogeneous living environment. The rental markets of a town with 24,390 inhabitants, despite transport links and the presence of commuting workers, are not comparable to those of a municipality with 8,080 inhabitants and, in the court's opinion, cannot constitute a unified comparison area in this specific case. This finding is confirmed by the classification in the housing allowance table. Hann. Münden receives rent level II, while Staufenberg receives only rent level I. The existing rent disparity is not adequately reflected in the A&K expert opinion. The fact that Staufenberg cannot constitute a separate comparison area due to its size has no bearing on the present case, because the plaintiffs reside in Hann. Münden. Furthermore, this fact does not preclude the examination of homogeneous living and housing conditions.
(II)
The Chamber is also convinced that the defendant's determination of the appropriate rent per square meter for the appropriate housing standard is not based on a coherent concept within the meaning of the established case law of the Federal Social Court (BSG). The latter defines a coherent concept as a planned approach by the basic income support provider in the sense of a systematic investigation and evaluation of general, albeit location- and time-dependent, facts for all cases of application in the relevant comparison area, and not merely an ad hoc approach on a case-by-case basis (see judgment of September 22, 2009 — B 4 AS 18/09 R —).
The defendant's concept fails to meet the minimum requirements for a coherent concept in essential respects. The rent data collection, based on the analysis of offers and existing rents, lacks a comprehensible definition of the subject of observation, the representativeness of the scope and the cap are not verifiable, and therefore it cannot be conclusively determined whether the actual costs for basic housing are reflected.
A clear deficiency in the survey is that the standard of the respective apartments (both existing and available) was not assessed as high, average, or basic, nor was any data collected and assigned for this purpose. The court is convinced that it is insufficient to determine the basic standard indirectly solely via the price per square meter (see judgments of the Lower Saxony-Bremen State Social Court of April 3, 2014 – L 7 AS 786/11 – and of April 29, 2014 – L 7 AS 768/11 –). According to the judgment of the Federal Social Court of August 20, 2009 – B 14 AS 41/18 R – (para. 17), all factors that determine the rent must be included in the evaluation, which generally includes at least the standard, size, and amenities of the apartment.
Apartments in so-called desirable residential areas (e.g., Hann. Münden city center) can be significantly more expensive, despite a lower standard, than well-equipped apartments in less sought-after areas (e.g., the rural part of Staufenberg). Only when it is ensured that the collected data accurately reflects the housing market, including representative apartments of all standards, can one speak of a comprehensive survey of the entire housing market. The upper limit for accommodations considered appropriate within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), depends not on the rent, but primarily on the type of amenities, the character, and the location of the accommodation.
The lack of differentiation in housing standards leads the court to believe that this results in irreparable problems when setting the rent control limit. An accurate representation of apartments of basic standards requires that the entire housing market be surveyed. A further prerequisite is a balanced mix of apartments of basic, average, and high standards in the data sets. This point cannot be clarified in the present case because the defendant did not consistently and thoroughly examine the standard and features of the apartments in question. Thus, a key price-determining standard was wrongly omitted from the A&K report.
In this context, the court points out that, according to the jurisprudence of the Federal Social Court (BSG), a conclusive concept cannot be replaced by a counter-test. The mere fact that it was possible to rent living space at the value deemed appropriate by the defendant does not mean that the value was correctly determined (see judgment of December 17, 2009 — B 4 AS 50/09 R —).
The court was not convinced that the taking of evidence by obtaining an expert opinion, as requested by the defendant in the event that a coherent concept could not be proven, was necessary. It is disputed in case law whether the examination of the coherence of a concept for determining reasonable housing costs is a question of law or of fact. The 7th Senate of the Lower Saxony-Bremen State Social Court (LSG) answered this question in the negative in its judgment on the appeal proceedings concerning the F+B expert opinion (contra: decision of the LSG Lower Saxony-Bremen of December 20, 2016 – L 9 AS 967/15 – NZB). In this context, the 9th Senate refers to a decision of the 7th Senate from 2012 regarding the denial of leave to appeal. However, the judgment concerning the F+B expert opinion dates from 2014, so it is unclear whether the 7th Senate shares the assessment in the aforementioned decision. The court is convinced that the defendant's first motion for the taking of evidence regarding the comparison area of Hann. Münden/Staufenberg is a legal question. Whether the municipalities, due to their geographical proximity, infrastructure, and transport connections, constitute a homogeneous living and residential area requires subsumption under the criteria established by the Federal Social Court (BSG). The geographical and infrastructural factual basis is known to the court and is expressly not disputed. The court merely assesses this evident factual basis differently than the defendant, just as the Higher Social Court (LSG) does. The second question of evidence, which requires an examination of whether the A&K expert opinion has a clearly defined object of observation in the entire housing market of the Göttingen district, can be answered in the affirmative without further investigation of the facts. The court proceeded on this basis in the present decision. The third question of evidence has already been answered by the legal finding and the fact that the defendant did not determine the standard and features of the 21,010 apartments examined. The court proceeds from this undisputed factual basis and bases its legal assessment on it, which is aligned with the jurisprudence of the Higher Social Court. This is because a mix of apartments of all standards cannot be established in the sample, meaning that the imposed cap would be incorrect if the sample consisted predominantly of apartments of basic standards, which cannot be verified.
Neither an expert nor the court would be obligated to retrospectively examine the furnishings of the 21,010 apartments used in the 2012 comparison. Furthermore, for the plaintiffs residing in Hann. Münden, it is neither relevant nor decisive for the dispute to which comparison area the municipality of Staufenberg would alternatively be assigned (4th question of evidence), so that, in the present case, taking evidence on this issue is precluded for this reason alone. Even if one were to conclude that the issues of evidence were questions of fact, the Chamber is convinced that further investigation of the facts is unnecessary based on the cited judgments of the 7th Senate. The underlying question can be answered conclusively and unequivocally by applying this case law.
Due to the passage of time (the final report dates from March 2013) and the fact that the standard of the inspected apartments was not determined, the court has no further obligation to investigate. A complete reassessment of data concerning the furnishings and standard of the underlying apartments would be necessary to establish a conclusive concept. However, given the total number of 21,010 accommodations inspected, this cannot be accomplished within the framework of the court proceedings.
If – as in the present case – a conclusive concept within the meaning of the Federal Social Court's (BSG) jurisprudence does not exist and cannot be subsequently established, it is permissible to refer to the housing benefit table and to apply an appropriate safety margin (see judgments of the BSG of October 19, 2010 – B 14 AS 15/09 R – and December 17, 2009 – B 4 AS 50/09 R –; judgment of the Hessian State Social Court of December 20, 2010 – L 9 AS 239/08 –), whereby the BSG, in judgments of December 11, 2012 – B 4 AS 44/12 R – and December 12, 2013 – B 4 AS 87/12 R – considered a surcharge of 10 percent on the respective applicable version of the housing benefit table to be appropriate.
For the town of Hann. Münden, according to rent level II of the housing benefit table, the appropriate value for accommodation costs for a three-person household is €523.00, which, together with a safety margin of 10 percent (€52.30), results in an appropriate value of €575.30. Therefore, the actual housing costs of €570.00 during the period in dispute are considered reasonable.
Based on the defendant's assessment, the plaintiffs were granted housing allowances of €473 per month. Therefore, they are entitled to the difference between this amount and the actual costs for September to November 2013 (€510) amounting to €37 per month and €97 per month for December 2013 to February 2014. For these periods, the plaintiffs are to be granted three-quarters of the difference, i.e., €27.75 and €72.75 respectively, because the son, xxx, is not pursuing any claims in these proceedings.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Pursuant to Section 144, Paragraph 1, Sentence 1, No. 1, and Paragraph 2 of the Social Court Act (SGG), the appeal requires leave to appeal because the defendant's claim, amounting to €301.50, is below the threshold of €750.00. Leave to appeal is granted because the case is of fundamental importance.
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