VERDICT
In the legal dispute between
1. xxx,
2. xxx,
– Plaintiffs –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District, represented by the District Administrator,
– Defendant –
The 13th Chamber of the Social Court of Hildesheim, without oral proceedings, rendered the following judgment on June 16, 2017, through Judge xxx of the Social Court and the lay judges xxx and xxx:
1. The defendant is ordered, by amending the grant notice of 10 September 2013 as modified by the appeal decision of 16 October 2013, to pay the plaintiffs an additional amount of EUR 12.20 for October 2013 and EUR 12.20 per month for the period from 1 December 2013 to 31 March 2014, in addition to the benefits already granted for accommodation and heating.
2. In all other respects, the action is dismissed.
3. The defendant shall reimburse the plaintiffs for their necessary extrajudicial costs in the amount of 83 percent.
4. The appeal is admitted.
FACTS OF THE CASE
The plaintiffs are seeking higher benefits for accommodation and heating for the benefit period from October 1, 2013 to March 31, 2014.
They are currently receiving benefits under the German Social Code, Book Two (SGB II).
The plaintiff (plaintiff no. 1), born on [date] 1961, and her son (plaintiff no. 2), born on [date] 1990, have lived in a 4-room apartment of approximately 113 m² at [address] in Adelebsen since August 2006. Until August 2013, another son of the plaintiff (plaintiff no. 1) also lived with them. Due to his apprenticeship, he moved out of the shared apartment on August 31, 2013.
The aforementioned apartment is heated by a gas boiler, which also provides hot water (page 593 of the administrative file). The monthly gross rent, including utilities, was €510.00 during the aforementioned period. Furthermore, the plaintiffs were required to pay heating cost prepayments of €67.00 per month in October 2013 and €60.00 per month from November 2013 onwards. In November 2013, the prepayment amount was offset by a credit of €40.04 (€60.00 - €40.04 = €19.96) (page 1593 of the administrative file).
Following an application for continued benefits submitted in September 2013, the defendant granted the plaintiffs a benefit on September 10, 2013, for the period from October 1, 2013, to March 31, 2014. In doing so, the defendant recognized, in addition to the standard benefit payments, the following for the month of October 2013: €15.83 for hot water, €296.00 for rent, €60.00 for utilities (gross rent excluding utilities: €356.00), and €51.17 for heating (total heating: €51.17 + €15.83 = €67.00), totaling €423.00 for accommodation and heating. For the period from November 1, 2013, to March 31, 2014, he granted monthly benefits for accommodation and heating of €15.83 for hot water, €296.00 for rent, and €60.00 for utilities. Heating costs were not covered. The amended decision of September 12, 2013, did not change this.
By letter dated September 15, 2013, the plaintiffs lodged an objection against the decision of September 10, 2013, with the aim of obtaining further benefits for accommodation and heating.
By amended decision dated September 25, 2013, the defendant increased the benefits for accommodation and heating insofar as he raised the rent benefit to EUR 375.00. On the same day, he informed the plaintiff (1) in writing of the unreasonableness of the accommodation costs.
The defendant then rejected the plaintiffs' objection as unfounded by decision dated October 16, 2013.
With their lawsuit filed with the Hildesheim Social Court on October 23, 2013, the plaintiffs continue their claim. They argue that, in their view, the benefits granted for accommodation and heating are too low. The expert opinion submitted by the defendant from the company Analyse und Konzepte for determining reasonable accommodation costs cannot be used to determine reasonable accommodation costs. It does not constitute a conclusive concept within the meaning of the Federal Social Court's jurisprudence. Regarding the question of the reasonableness of accommodation costs, the table values of Section 12 of the Housing Benefit Act, as amended on January 1, 2009, plus a 10 percent safety margin, should be applied. For further details of their submissions, reference is made to pages 78 et seq. of the court file.
The plaintiffs request that
the defendant, by amending his decision of September 10, 2013, as modified by the appeal decision of October 16, 2013, be ordered to grant the plaintiffs the requested benefits monthly in the statutory amount, taking into account the legal opinion of the court.
The defendant requests
that the action be dismissed.
He bases his argument primarily on the expert opinion he commissioned from the firm Analyse und Konzepte. He argues that this opinion constitutes a coherent concept within the meaning of the Federal Social Court's jurisprudence. For further details of his submissions, reference is made to page 75 of the court file and the accompanying appendix, as well as pages 122 et seq. and 132 et seq. of the court file.
The defendant further requests:
– that evidence be taken by obtaining an expert opinion to establish that the city of Göttingen and the municipalities of Bovenden and Rosdorf constitute sufficiently large residential areas which, due to their spatial proximity to one another, their infrastructure, and their transport connections, form a homogeneous living and residential area overall;
– that an expert opinion be obtained to prove that the contested concept for determining the appropriateness of accommodation costs in the district of Göttingen has a clearly defined object of observation in relation to the entire housing market of the district;
– that an expert opinion be obtained to prove that housing value characteristics have no influence on the determination of the cap on accommodation costs by means of an iterative process.
In the event of losing the case, the defendant requests
that an appeal be permitted.
By amending decision dated December 4, 2013, the defendant increased the monthly benefits for the standard needs of the plaintiffs to EUR 391.00 and EUR 313.00, as well as the benefits for the preparation of hot water to a total of EUR 16.19 per month for the period from January 1, 2014 to March 31, 2014.
On February 5, 2014, the defendant issued a further amended decision for the period from November 1, 2013 to March 31, 2014, by which he again set the total heating costs at EUR 60.00 per month (page 1600 of the administrative file).
For further details of the facts and the legal arguments, reference is made to the court file and the administrative file of the defendant, which were submitted to the court and formed the basis of the decision.
REASONS FOR THE DECISION
The plaintiffs' combined action for annulment and performance within the meaning of Section 54 Paragraph 1 Sentence 1 Alternative 1 in conjunction with Paragraph 4 of the Social Courts Act (SGG) is admissible and largely well-founded.
Limiting the subject matter of the dispute to benefits for accommodation and heating is permissible. The ruling on accommodation and heating costs in a benefit notice under Book II of the German Social Code (SGB II) is to be regarded as an independent administrative act within the meaning of Section 31 of Book X of the German Social Code (SGB X) and thus as a severable part of the overall decision (established case law of the Federal Social Court, see, for example: judgment of November 7, 2006, case no.: B 7b AS 8/06 R; judgment of February 27, 2008, case no.: B 14 AS 23/07 R; judgment of June 4, 2014, case no.: B 14 AS 42/13 R; and judgment of August 6, 2014, case no.: B 4 AS 55/13 R).
The two amending decisions of December 4, 2013, and February 5, 2014, issued after the issuance of the decision on the objection and during the court proceedings, modified the contested original administrative act as amended by the amending decisions and as modified by the decision on the objection. Therefore, pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG), they have become the subject of the present legal proceedings. Although these two decisions are not mentioned in the operative part of the judgment, the court took them into account in its decision.
The plaintiffs' applications are not unambiguous and therefore require interpretation, § 123 SGG. The court interprets the plaintiffs' application as claiming the difference between the approved benefits for the gross rent (EUR 375.00) and the values resulting from § 12 WoGG in its then-current version for a two-person household, plus a safety margin of 10% (EUR 352.00 + EUR 35.20 = EUR 387.20), thus amounting to a monthly sum of EUR 12.20. This interpretation is supported by the fact that the plaintiffs did not claim the actual accommodation costs, but rather the increase in benefits by the values from § 12 WoGG plus a 10% safety margin.
The defendant's contested decision is partially unlawful and infringes the plaintiffs' subjective public rights to that extent (Section 54 Paragraph 2 Sentence 1 of the Social Court Act). The plaintiffs are entitled to higher benefits for accommodation and heating in October 2013 and from December 1, 2013, to March 31, 2014. During this period, they are entitled to additional benefits for accommodation and heating in the amount of at least €12.20 per month.
It is irrelevant whether the plaintiffs have a further claim to benefits for accommodation and heating, for example, because the six-month period under Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) had not yet expired since the other son of the first plaintiff moved out of the shared apartment and the defendant issued a cost-reduction request in September 2013, because the claim is essentially limited to the difference between the values resulting from Section 12 of the Housing Benefit Act (WoGG) for a two-person household plus a 10% safety margin and the benefits already granted by the defendant for the gross rent excluding utilities, and thus to €12.20 per month. Furthermore, it should be noted that the defendant covered the actual heating costs during the period in dispute.
The plaintiffs' claim for back payment of 5 x 12.20 EUR arises from §§ 7, 9, 19, 20, 22 SGB II.
The plaintiffs were entitled to benefits during the period in dispute within the meaning of Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 9 SGB II and Section 19 Paragraph 1 SGB II. The court has no evidence to the contrary.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are recognized in 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 single person entitled to benefits or the household to reduce the expenses by moving, subletting, or in any other way, but generally for no longer than six months, Section 22 Paragraph 1 Sentence 3 SGB II.
The concept of reasonable housing costs limits the amount of reimbursable costs (see Federal Social Court, judgment of September 22, 2009, case no.: B 4 AS 18/09 R). This is an indeterminate legal concept subject to full judicial review (see Federal Social Court, judgment of November 7, 2006, case no.: B 7b AS 10/06 R). According to established case law of the Federal Social Court, determining reasonableness must be done in several stages. First, the abstractly reasonable apartment size and the relevant comparison area must be defined. In a further step, it must be determined how much one would have to spend on a basic-standard apartment on the housing market of the comparison area. The aim of this determination is the price per square meter for basic-standard apartments, which is then multiplied by the reasonable square footage according to the product theory. The result is the regionally appropriate rent (cf. Federal Social Court, judgment of September 22, 2009, file no.: B 4 AS 18/09 R).
The defendant failed to provide the court with a comprehensible explanation of what constitutes a regionally appropriate, abstract rent for residential property.
1.
The defendant failed to convince the court that he had formed correct comparison spaces.
The establishment of comparable areas within which the rent level is determined is necessary to determine the abstractly reasonable expenses for an abstractly reasonably sized apartment of "basic standard" in the lower segment of the housing market (Federal Social Court, judgment of 19 February 2009, file no.: B 4 AS 30/08 R).
According to the jurisprudence of the Federal Social Court, the comparison area is generally formed from the place of residence of the person in need of assistance (see Federal Social Court, judgment of November 7, 2006, file no.: B 7b AS 10/06 R, and judgment of November 7, 2006, file no.: B 7b AS 18/06 R), although it is not necessarily required to be based on the municipal constitutional concept of "municipality": Rather, the formation of larger areas may be necessary, particularly in rural areas, while in larger cities a subdivision into several smaller units is possible, whereby in cities with a population of 75,000 or more (see Federal Social Court, ibid.) the city area itself can form the comparison area. In this context, it is not merely a matter of defining city districts, but rather sufficiently large areas of residential development which, due to their proximity to each other, their infrastructure and in particular their transport connections, form a homogeneous living and residential area overall (for the whole: Federal Social Court, judgment of 22 September 2009, file no.: B 4 AS 18/09 R).
Given the local situation, it is incomprehensible why Adelebsen, Dransfeld and Friedland form a comparison area, especially since Friedland does not even border the other two municipalities.
Furthermore, the Hildesheim Social Court has already ruled that the additional comparison area established by the defendant, consisting of the city of Göttingen and the municipalities of Bovenden and Rosdorf, was incorrectly defined. The present chamber concurs with the convincing reasoning of the 39th Chamber of the Hildesheim Social Court in its judgment of May 10, 2017, Case No.: S 39 AS 1111/15, after its own review. That judgment states:
“For the area of the city of Göttingen and the municipalities of Bovenden and Rosdorf, it can be established that they do not constitute a homogeneous living and residential area overall, neither due to comparable infrastructure (see aa)), nor their transport connections (see bb)), nor for any other reasons (see cc)).
aa)
The infrastructure of the city of Göttingen and the infrastructure of the municipalities of Bovenden and Rosdorf are not comparable.
In its report, the firm Analyse und Konzepte initially assumes that "the classification of municipalities into the central place model of upper, intermediate, and lower centers [...] allows for a fundamental assessment and evaluation of the existing infrastructure provision" (see report by Analyse und Konzepte, page 8). It further states: "In the Göttingen district, the upper center of Göttingen, as well as the intermediate centers of Hann. Münden and Duderstadt, have a population of more than 20,000. Against this background, it is assumed that these municipalities each constitute a residential area with a corresponding independent, representative housing market. The remaining nine municipalities in the district are all designated as lower centers, but due to their population size, they do not each have representative housing markets. [...] Therefore, it is necessary to combine these municipalities into sufficiently large residential areas. This must be done with regard to spatial proximity [...]" (see report by Analyse und Konzepte, page 9).
(1)
Contrary to its own considerations regarding spatial planning, the company Analyse und Konzepte has inexplicably combined the city of Göttingen and the neighboring municipalities of Bovenden and Rosdorf into a single comparison area. The report by Analyse und Konzepte correctly assumes that the city of Göttingen constitutes a major regional center within the meaning of spatial planning. Section 2.2, paragraph 4 of the Lower Saxony State Spatial Planning Program (LROP) states: "The major regional centers are located in the cities of Braunschweig, Celle, Göttingen, Hanover, Hildesheim, Lüneburg, Oldenburg (Oldenburg), Osnabrück, Salzgitter, Wilhelmshaven, and Wolfsburg." In contrast, Bovenden and Rosdorf are neither major regional centers nor intermediate centers (see LROP, Section 2.2, paragraph 5), but are classified by the defendant itself only as basic centers (see the Regional Spatial Planning Program of the Göttingen District (RROP), page 3).
In the State Spatial Planning Program (LROP), section 2.2, paragraphs 1 to 3 define the tasks of upper-level, intermediate, and basic centers as follows: “(1) Central places are upper-level centers, intermediate centers, and basic centers. The functions of upper-level, intermediate, and basic centers are to be secured and developed to maintain a sustainable and balanced settlement and supply structure in all parts of the state. In the upper-level and intermediate-level interrelationship areas, planning and measures for settlement, open space, supply, and infrastructure are to be coordinated with each other. The upper-level and intermediate-level centers are definitively defined in the State Spatial Planning Program. In individual cases, intermediate-level centers are assigned partial functions of upper-level centers. Basic centers are to be defined in the Regional Spatial Planning Programs. In individual cases, basic centers may be assigned partial functions of intermediate-level centers. (2) Central places are to be spatially defined as central settlement areas in the Regional Spatial Planning Programs in consultation with the municipalities. (3) The type and scope of the central place facilities and services are to be aligned with the demand of the population to be served and the economy in the interrelationship area.” The capacity of central places must be secured and developed in accordance with their respective designations. The following must be secured and developed:
— in major centers, central facilities and services for specialized, higher-level needs;
— in intermediate centers, central facilities and services for higher-level needs;
— in basic centers, central facilities and services for general daily basic needs;
— outside of central places, facilities and services for local, residential supply.
Major centers must simultaneously fulfill the intermediate and basic central supply functions, and intermediate centers must also fulfill those of basic central supply. […]
(2)
Göttingen fulfills its role as a major regional center and, in addition to providing services at the intermediate and basic levels, offers central facilities and services for specialized, higher-level needs, while the basic centers of Bovenden and Rosdorf, in turn, offer facilities and services for general daily needs as well as facilities and services for local residents. The existing infrastructure demonstrates the differences between the city of Göttingen and the municipalities of Bovenden and Rosdorf as defined in the spatial planning:
– Göttingen's supra-regional transport infrastructure includes connections to the ICE high-speed rail network of Deutsche Bahn as well as to the supra-regional and regional rail networks. Bovenden and Rosdorf have no such connections, not even to regional rail services.
– Göttingen's supra-regional transport infrastructure includes connections to the federal motorway network, specifically the A7 motorway, which runs through the city and is linked to it via two on- and off-ramps. In Bovenden, there is no direct connection to the federal motorway; in Rosdorf, there is an incomplete on- and off-ramp that is not designated as such.
According to the ranking of the 100 largest companies in Lower Saxony compiled by the Hanover Chamber of Industry and Commerce for the state of Lower Saxony in December 2015 (available at http://www.hannoverihk.de/ihk-themen/konjunkturstatistik/aktuell/liste-der-100-groessten-unternehmen-im-bereich-der-ihkhannoverhtml), eight companies are located within the city limits of Göttingen: Göttingen University Medical Center (5,400 full-time positions), Sartorius AG (1,900 employees), Novelis Deutschland GmbH (750 employees), Sparkasse Göttingen (740 employees), Robert Bosch GmbH and Mahr GmbH (700 employees each), Carl Zeiss Microscopy GmbH (600 employees), and Gothaer Insurance (550 employees). Public employers are not included in this ranking compiled by the Hanover Chamber of Industry and Commerce, meaning that the University of Göttingen (excluding its medical center) and the city of Göttingen would also need to be mentioned. Neither Bovenden nor Rosdorf has employers with a comparable number of employees.
The city of Göttingen boasts numerous scientific institutions, including the University of Göttingen, the Private University of Applied Sciences, the University of Applied Sciences and Arts (HAWK), and various Max Planck research institutions, while Bovenden and Rosdorf lack such institutions.
With five grammar schools (plus an evening school), three comprehensive schools, two secondary schools, and its special education schools, the city of Göttingen ensures educational provision for the residents of Bovenden and Rosdorf, which themselves have a significantly limited selection of secondary schools. Furthermore, all vocational schools and the adult education center are located in Göttingen.
– The city of Göttingen provides infrastructure for cultural life with three theaters, two event halls, an orchestra, and for sports with the Eiswiese water park, which is also used by the population from the rest of the district and is not provided in the same or similar way in Bovenden or Rosdorf.
(3)
All of the aforementioned infrastructure in the city of Göttingen has in common that it is used by the residents of all municipalities in the Göttingen district. This use is not limited to the residents of the municipalities of Bovenden and Rosdorf, which border Göttingen directly, nor can any structural data indicate that the infrastructure of the city of Göttingen is used to a greater extent by the residents of Bovenden and Rosdorf than by residents of other municipalities in the district. Therefore, insofar as the defendant refers to the existing (and, according to his own Regional Development Plan, to be further developed) interconnections between the city of Göttingen and the bordering municipalities of Bovenden and Rosdorf, these are fundamental and in no way regionally specific interconnections between a major urban center and the municipalities directly adjacent to it.
(4)
If the defendant refers to the fact that, according to its Regional Development Plan (RROP), "to a certain extent, reciprocal relief and supplementary functions" exist between the city of Göttingen and the municipalities of Bovenden and Rosdorf, it is unclear what these functions are supposed to entail, given the infrastructure disparity between the two areas. All the infrastructure mentioned by the defendant in the municipalities of Bovenden and Rosdorf (kindergartens, primary schools, general practitioners' offices, shopping facilities) does not contribute to reciprocal relief and supplementation, but rather ensures basic services in the municipalities of Bovenden and Rosdorf. If the defendant, referring to the Rosdorf municipality's website, states that the shopping facilities there are "also frequently used by residents of Göttingen," this is likely a positive presentation of Rosdorf's advantages aimed at potential customers. This is evident from the fact that Rosdorf specifically promotes these shopping facilities in this article by highlighting "free parking.".
(5)
Regardless of the classification of the city of Göttingen and the municipalities of Bovenden and Rosdorf into the spatial planning categories, there are further (infra)structural differences and similarities between the municipalities of Bovenden and Rosdorf on the one hand and the city of Göttingen on the other.
Insofar as the report by the company Analyse und Konzepte claims that the municipalities of Bovenden and Rosdorf differ significantly from the other municipalities/basic centers in the district due to their more urban character (high proportion of apartments in multi-story residential buildings and an above-average population density), this is on the one hand inaccurate (see (a) below), on the other hand there is a clear difference (see (b) below) which is ultimately the decisive factor (see (c) below).
(a) Table 2 in the report by Analyse und Konzepte (see page 12 of the report) does not show that the municipalities of Bovenden and Rosdorf exhibit significant structural differences compared to the other municipalities in the district: There are no significant differences in their population (population as of December 31, 2011: Bovenden: 13,381, Rosdorf: 12,005) compared to the municipalities of Gieboldehausen and Friedland (population as of December 31, 2011: Gieboldehausen: 13,890, Friedland: 11,395), and with regard to settlement and transport areas, they are of the same order of magnitude as the municipalities of Staufenberg, Gleichen, and Dransfeld (settlement and transport area as of December 31, 2011: Bovenden: 1,010, Dransfeld: 1,115, Gleichen: 1,040, Rosdorf: 994). Staufenberg: 939) and in terms of settlement density there are similarities to the municipality of Friedland (inhabitants per hectare of settlement and transport area: Bovenden: 13.25, Friedland: 14.46, Rosdorf: 12.08).
(b) The municipalities of Bovenden and Rosdorf differ significantly from the city of Göttingen in terms of their structure. The data presented in the report by the firm Analyse und Konzepte (see Table 2 on page 12) show that the municipalities of Bovenden and Rosdorf are not comparable to the city of Göttingen. Specifically, the municipalities of Bovenden and Rosdorf are not comparable with regard to their population (population figures as of December 31, 2011: Bovenden: 13,381, Rosdorf: 12,005, Göttingen: 121,364), their settlement and transport areas (settlement and transport area as of December 31, 2011: Bovenden: 1,010, Rosdorf: 994, Göttingen: 3,949), or their population density (inhabitants per hectare of settlement and transport area: Bovenden: 13.25, Rosdorf: 12.08, Göttingen: 30.73). The settlement density, determined based on the number of inhabitants per square kilometer of municipal area (and not, as in the report by the company Analyse und Konzepte, based on the number of inhabitants per hectare of settlement and transport area), also reveals significant structural differences between the municipalities of Bovenden (inhabitants/km²: 212.2, as of December 31, 2015, source: Kommunales Standort-Informations-System, www.komsis.de) and Rosdorf (inhabitants/km²: 179.2, as of December 31, 2015, source: Kommunales Standort-Informations-System, www.komsis.de) on the one hand, and the city of Göttingen (inhabitants/km²: 1,017.3, as of December 31, 2015, source: Kommunales Standort-Informations-System, www.komsis.de) on the other.
(c) The decisive factor in determining that the comparison area was impermissibly formed from the city of Göttingen and the municipalities of Bovenden and Rosdorf is not the structural differences claimed in the report by the firm Analyse und Konzepte compared to other municipalities. Rather, the decisive factor is that the municipalities of Bovenden and Rosdorf themselves exhibit such significant structural differences compared to the city of Göttingen.
Against this background, the Lower Saxony-Bremen State Social Court (Lower Saxony-Bremen State Social Court, judgment of April 29, 2014 — L 7 AS 330/13 —, juris) also explained to the Chamber in a comprehensible manner that the area of the city of Göttingen constitutes an independent comparison area due to its infrastructure, its independent character distinguishable from the neighboring municipalities by a university structure that shapes the city.
In particular, the report by the firm Analyse und Konzepte completely disregarded the significant influence of the university institutions located within the city limits on Göttingen, in comparison to the municipalities of Bovenden and Rosdorf. For example, the (social) infrastructure provided for students living in Göttingen within the buildings of the Georg-August University and the Göttingen Student Union is something that does not exist in either Bovenden or Rosdorf.
This university character is also evident in the proportion of students to the total (residential) population of the municipalities treated equally by the company Analyse und Konzepte: Of the 25,377 students enrolled at the University of Göttingen in 2011, 16,826 were registered as having their primary residence in the city of Göttingen, while 194 were registered as residents in Bovenden and 117 in Rosdorf. The proportion of students to the total (residential) population in 2011 was 13.32% in the city of Göttingen, 1.45% in the municipality of Bovenden, and 0.98% in the municipality of Rosdorf (population figures as of December 31, 2011: Bovenden: 13,381, Rosdorf: 12,005, Göttingen: 121,364).
bb)
The transport connections between Göttingen and Bovenden in the north and Göttingen and Rosdorf in the south also argue against the formation of a single comparison area. The court does not accept the defendant's argument that the transport connections between the municipalities of Bovenden and Rosdorf and the city of Göttingen are comparable to the existing links between Bovenden and Rosdorf and the city of Göttingen via various means of transport, and that he presents tables listing travel times by bus, car, and bicycle from Bovenden and Rosdorf, and comparing these with travel times by the same means of transport from the Göttingen districts of Elliehausen and Nikolausberg, which lie on the city limits, in order to conclude that travel times within the city of Göttingen to the centrally located market square are comparable to travel times from Bovenden and/or Rosdorf. The defendant focuses solely on the namesake towns of the municipalities of Bovenden and Rosdorf, which border Göttingen, and states himself that these towns comprise 48% and 56%, respectively, of the population of their respective municipalities. This means that, in the defendant's comparison regarding transport routes and their duration, 52% of Bovenden's and 44% of Rosdorf's populations are disregarded. This portion of the population of Bovenden and Rosdorf, which the defendant overlooks, lives geographically farther from the city of Göttingen than the residents of the namesake towns of Bovenden and Rosdorf. Only these towns border directly on the city limits of Göttingen to the north (Bovenden) and south (Rosdorf). The comparison of travel times using the aforementioned means of transport from the villages belonging to the municipalities of Bovenden and Rosdorf, submitted at the court's request, reveals travel times from these villages that clearly contradict any transport connection between the entire municipal area and the city of Göttingen. The defendant himself states that the southern villages of Rosdorf already rely on the transport connections to the city of Hann. Münden and the municipalities of Friedland and Dransfeld.
Furthermore, the defendant's claim that Bovenden and Rosdorf are integrated into the Göttingen public transport network (city bus network) applies only to their respective main towns, Bovenden and Rosdorf, and thus to only about half of the residents of both municipalities. The court agrees with the Lower Saxony-Bremen State Social Court that the mere fact that neighboring municipalities can be reached via bus connections does not justify drawing a comparison area (Lower Saxony-Bremen State Social Court, judgment of April 29, 2014 — L 7 AS 330/13 —, juris).
(cc)
For other reasons as well, the city of Göttingen and the municipalities of Bovenden and Rosdorf do not constitute a homogeneous living and residential area.
While the expert opinion from the firm Analyse und Konzepte, which argues for a homogeneous living and residential area, is based on the fact that the municipalities of Bovenden and Rosdorf have "similar economic significance for Göttingen as commuter towns" (see page 11 of the expert opinion from Analyse und Konzepte), is correct, the court finds that, contrary to the plaintiff's assertions, comparable economic conditions are indeed suitable, as one of several criteria, to establish an overall homogeneous living and residential area. However, in this case, the municipalities of Bovenden and Rosdorf only have a similar economic significance with regard to the city of Göttingen; that is, Bovenden and Rosdorf are comparable in their importance with respect to their own economic strength and their respective economic ties to the city of Göttingen.
In comparison to the city of Göttingen, however, neither of the two municipalities can be said to have comparable economic conditions, nor can it be assumed that the economic interrelationships run equally in both directions.
(1)
According to the Statistical Information System of the Statistics and Elections Department of the City of Göttingen (available at www.goesis.goettingen.de), 37,712 people commute to the city of Göttingen for work (as of 2016). 3,136 people commute to Göttingen from the municipality of Bovenden, and 2,887 from the municipality of Rosdorf. This means that in 2016, 23.2% of Bovenden's population (as of December 31, 2015: 13,510 inhabitants, source: Municipal Location Information System, wvvw.komsis.de) and 24.2% of Rosdorf's population (as of December 31, 2015: 11,909 inhabitants, source: Municipal Location Information System, www.komsis.de) commuted to Göttingen. However, this proportion of commuters from their own municipality to the city of Göttingen is not a characteristic that justifies a unique position for the municipalities of Bovenden and Rosdorf, which distinguishes them from the other municipalities in the district of Göttingen with regard to the city of Göttingen. Thus, 22.5% of the inhabitants of Gleichen, a municipality bordering Göttingen to the southeast (population 8,984 as of December 31, 2015, source: Municipal Location Information System, www.komsis.de), commute to Göttingen (2,019 people as of 2016, source: Statistical Information System of the Statistics and Elections Department of the City of Göttingen, www.goesis.goettingen.de). From the neighboring municipality of Adelebsen to the northwest, 21.8% commute (1,411 commuters as of 2016, source: Statistical Information System of the Statistics and Elections Department of the City of Göttingen, www.goesis.goettingen.de; population 6,573 as of December 31, 2015, source: Municipal Location Information System, www.komsis.de). From the neighboring municipality of Dransfeld to the west, 16% commute (1,494 commuters as of 2016, source: Statistical Information System of the Göttingen (Statistics and Elections Department of the City of Göttingen, www.goesis.goettingen.de, 9,316 inhabitants as of December 31, 2015, Source: Municipal Location Information System, www.komsis.de) and the neighboring municipality of Radolfshausen to the east (20.5%, 1,474 commuters as of 2016, Source: Statistical Information System of the Statistics and Elections Department of the City of Göttingen, www.goesis.goettingen.de, 7,162 inhabitants as of December 31, 2015, Source: Municipal Location Information System, www.komsis.de). Of the total number of commuters, only 15.97% (6,023 people) travel from the municipalities of Bovenden and Rosdorf to Göttingen for work. Measured against the total number of employees in the city of Göttingen (67,818 as of June 30, 2016, source: Municipal Location Information System, www.komsis.de), the proportion of commuters from the municipalities of Bovenden and Rosdorf amounts to just 8.9%. Therefore, the economic significance of Bovenden and Rosdorf due to their commuter traffic to the city of Göttingen is, in this context, considered minor.
(2)
Furthermore, the economic significance of the city of Göttingen, measured against the same criteria established by the company Analyse und Konzepte in their report for the municipalities of Bovenden and Rosdorf, is so minimal as to be immeasurable. The 37,712 people who commute into Göttingen for work (as of 2016, source: Statistical Information System of the Statistics and Elections Department of the City of Göttingen, www.goesis.goettingen.de) are offset by 11,540 people who commute out of Göttingen for work. No reliable figures exist for the number of people commuting from Göttingen to the municipalities of Bovenden and Rosdorf because this number is negligible. The total proportion of people commuting out of Göttingen is only 9.7% of the total population (118,914 inhabitants as of December 31, 2015, source: Municipal Location Information System, www.komsis.de).
(3)
In terms of other economic structures, the municipalities of Bovenden and Rosdorf also do not compare favorably with the city of Göttingen. In Bovenden, 2,681 people are employed (as of June 30, 2016, source: Municipal Location Information System, www.komsis.de), while in Rosdorf, this number is 3,190 (as of June 30, 2016, source: Municipal Location Information System, www.komsis.de). In contrast, the city of Göttingen has 67,818 employees (as of June 30, 2016, source: Municipal Location Information System, www.komsis.de).
dd)
The different rent limits resulting from the Housing Benefit Act (WoGG) for the city of Göttingen and the municipalities of Bovenden and Rosdorf also argue against homogeneous living and housing conditions in the comparison area defined by the company Analyse und Konzepte. The classification into different rent levels of the housing benefit table (rent level IV Göttingen; rent level III Bovenden and Rosdorf), which, according to Section 12, paragraphs 2 and 3 of the WoGG, is to be determined by the Federal Statistical Office based on the rent level of residential space, is not reflected in the report by Analyse und Konzepte and raises considerable doubts about the accuracy of the definition of the comparison area.
In the opinion of the adjudicating chamber, these considerations call into question the defendant's overall definition of the comparability area.
2.
Furthermore, the defendant's determination of the appropriate rent per square meter for a reasonable standard of living – regardless of whether for apartments up to 60 m² or up to 75 m² – is not based on a sound concept. The expert opinion from the company Analyse und Konzepte 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 expert opinion suffers from fundamental flaws that cannot be remedied even through a court-ordered "revision.".
According to the jurisprudence of the Federal Social Court, 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 (Federal Social Court, judgment of June 18, 2008, case no.: B 14/7b AS 44/06 R). The limitation of actual accommodation costs to a "reasonable level" must be sufficiently comprehensible. The Federal Social Court 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" (Federal Social Court, judgment of September 22, 2009, case no.: B 4 AS 18/09 R).
The Federal Social Court has made the following specifications regarding the minimum requirements of a coherent concept (Federal Social Court, judgment of September 22, 2009, file number: B 4 AS 18/09 R):
• 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 on 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 on the conclusions drawn (e.g. upper limit of the range or capping limit).
The crucial point is that the concept must provide sufficient assurance that it reflects the current conditions of the local housing market. The data collected by the company Analyse und Konzepte in 2012 do not meet the minimum requirements for a sound concept as defined by the Federal Social Court in several key aspects.
a)
In accordance with the 26th and 39th Chambers of the Hildesheim Social Court, the expert opinion of the company Analyse und Konzepte does not provide a comprehensible definition of the subject of observation for the adjudicating chamber either. In this respect, the Federal Social Court has stated that a coherent concept can refer to apartments from the total housing stock (basic, average, and superior standards) as well as to apartments of only basic standards (Federal Social Court, Judgment of September 22, 2009, Case No.: B 4 AS 18/09 R). The responsible benefit provider is granted discretion in defining the subject of observation. However, it must define a survey population that, in turn, provides sufficient assurance of reflecting the current conditions of the local housing market in order to determine the appropriateness of the housing costs on this basis. If the social security provider bases its data collection solely on apartments of so-called basic standards, it must transparently disclose the criteria used for this selection, according to the Federal Social Court (Federal Social Court, judgment of September 22, 2009, case no.: B 4 AS 18/09 R). The court is convinced that, even when considering the total housing stock, a prior definition of housing standards is necessary. Only in this way can it be determined what proportions of apartments of basic, medium, and high standards have been included. This is precisely what is lacking here.
The 13th Chamber concurs with and adopts the statements made by the 26th Chamber of the Hildesheim Social Court in its judgment of March 3, 2017, file number: S 26 AS 220/16. The report states:
“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 (cf. 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. This is
because apartments in so-called desirable residential areas (e.g., Hann. Münden city center) can be significantly more expensive than good apartments despite a low standard.” Furnished apartments in less sought-after areas (e.g., a rural part of the municipality of Staufenberg). Only if it is ensured that the collected data accurately reflects the housing market in such a way that apartments of all standards are represented 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 furnishings, the character, and the location of the accommodation.
b)
Furthermore, the representativeness of the scope and the cap set in the defendant's expert opinion is not comprehensible, so that it cannot be conclusively determined whether the actual costs for basic housing are reflected. The 13th Chamber concurs, based on its own conviction, with the reasoning of the 26th Chamber of the Hildesheim Social Court in its judgment of March 3, 2017, Case No.: S 26 AS 220/16. The ruling states:
“The lack of differentiation in housing standards leads the court to believe that this results in irreparable problems in determining the rent cap. Accurate representation of apartments of basic standards requires that the entire housing market be surveyed. A further prerequisite is a balanced mix of the data sets, including apartments of basic, average, and high standards. 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. A key price-determining standard was thus wrongly omitted from the A&K expert opinion.
In this context, the court points out that, according to the Federal Social Court's (BSG) jurisprudence, a sound concept cannot be replaced by a counter-test. The mere fact that it was possible to rent housing at the price deemed appropriate by the defendant does not mean that the price was determined correctly (see judgment of December 17, 2009 – B 4 AS 50/09 R).”
3.
The court has no further duty to investigate. The chamber therefore considers the present situation to be one incapable of local knowledge acquisition, as defined by the jurisprudence of the Federal Social Court, and does not consider itself obligated under Section 103 of the Social Court Act (SGG) to conduct further investigations. The Federal Social Court stated the following in this regard (Federal Social Court, Judgment of September 22, 2009, Case No.: B 4 AS 18/09 R):
“It is essentially the responsibility of the basic income support providers to develop a coherent concept for their area of jurisdiction, on the basis of which the necessary data for determining the adequacy limit are to be collected and evaluated. The findings obtainable from such a concept are therefore, in principle, necessary for the basic income support provider to make a sound decision in administrative proceedings and must be submitted by the basic income support provider in legal proceedings. If the basic income support provider decides without a sufficient data basis, it is obligated, within the scope of its procedural duty to cooperate pursuant to Section 103 Sentence 1, second half-sentence of the Social Courts Act (SGG), to provide the court with the most reliable basis for its decision possible and, if necessary, to carry out any omitted data collection and processing. The municipal authority responsible for benefits under Section 22 of the German Social Code, Book II (SGB II), pursuant to Section 6 Paragraph 1 Sentence 1 No. 2 SGB II, can be expected to utilize the data available to it.” The basic income support provider must provide the necessary data as well as the personal and/or material prerequisites for collecting and evaluating the required data. This duty to investigate does not automatically transfer to the social court if the basic income support provider's concept proves to be unsustainable (inconclusive) or if, in the case of an otherwise conclusive concept, the necessary data has not been collected or has not been collected properly.
In addition, the 14th Senate of the Federal Social Court stated (judgment of August 20, 2009, case no.: B 14 AS 65/08 R):
“If the municipal authority’s concept for determining the appropriate price per square meter proves to be inconclusive, as in the present case, this may 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 did in the present case. However, in such a case, the costs of accommodation are not to be covered without any 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 supplement. The court can only draw this conclusion from the inability to provide a conclusive concept, however, if it has previously (unsuccessfully) attempted to rectify the inadequate findings of the administration with its support (cf. judgment of the deciding Senate of July 2, 2009, B 14 AS).” 33/08 R). Accordingly, the Higher Social Court (LSG) will first have to conduct further investigations to determine whether and to what extent the accommodation expenses incurred by the plaintiffs during the period in question were reasonable. Following the logic of the allocation of responsibility for developing a coherent concept, it will initially address the defendant's investigations and, if necessary, correct any conceptual weaknesses. Furthermore, it will be able to access, for example, private rental databases – if available – which 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, Judgment of June 18, 2008 – B 14/7b AS 44/06 R, FEVS 60, 145, 149, para. 16). If necessary, it may also appoint its own expert. Only if these investigations prove unsuccessful can the LSG proceed with further investigations. The LSG was correct in principle in its ruling that the defendant should be ordered to bear the actual expenses of the plaintiffs.”
In the opinion of the adjudicating chamber, a subsequent improvement, as formulated by the 14th Senate of the Federal Social Court, is not possible in this case. It is not apparent what investigative avenues are now available retrospectively. The 13th Chamber concurs with the judgment of the Hildesheim Social Court of March 3, 2017, Case No.: S 26 AS 220/16. This
judgment states: “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 carried out within the framework of the court proceedings.”
There is also no obligation to conduct a subsequent investigation regarding the cold ancillary costs. This is because a subsequent assessment of the ancillary costs for advertised rents is already precluded due to the passage of time.
4.
The court was not required to grant the defendant's motions for the taking of evidence. No further clarification of facts relevant to the decision was necessary. Therefore, it is also irrelevant whether the defendant's motions for the taking of evidence even aim to establish facts accessible to proof or whether they are – at least in part – rather value judgments to be made by the court. It must also be considered that the lack of identification of the proportions of apartments of simple, medium, and high standards, which in the court's opinion can no longer be remedied, leads in any case to a random result and is therefore not suitable for limiting housing costs under Section 22 of the German Social Code, Book II (SGB II).
If – as in the present case – a conclusive concept within the meaning of the Federal Social Court's jurisprudence does not exist and cannot be subsequently established, it is permissible to refer to the housing benefit table and apply an appropriate safety margin (see judgments of the Federal Social Court of October 19, 2010, file no.: B 14 AS 15/09 R, and December 17, 2009, file no.: B 4 AS 50/09 R; judgment of the Hessian State Social Court of December 20, 2010, file no.: L 9 AS 239/08), whereby the Federal Social Court, in judgments of December 11, 2012, file no.: B 4 AS 44/12 R, and December 12, 2013, file no.: B 4 AS 87/12 R, considered a surcharge of 10% on the respective applicable version of the housing benefit table to be appropriate.
After all this, the defendant must cover the plaintiffs' requested expenses for their accommodation for the months of October 2013 and from December 1, 2013 to March 31, 2014, in the additional amount of EUR 12.20 per month.
However, the plaintiffs have no claim for additional payment for the month of November 2013 because the defendant overpaid by €40.04 in heating costs. The plaintiffs' actual heating costs amounted to only €19.96. Therefore, an offset must be made between the overpayment and the claimed additional payment. Consequently, the claim was dismissed in this respect.
The decision on costs is based on § 193 SGG and takes into account the degree of success and failure.
The appeal is admitted pursuant to Section 144 Paragraph 2 No. 1 of the Social Court Act (SGG) due to the fundamental importance of the legal matter.
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