Decision
In the legal dispute
between 1. xxx,
2. xxx,
represented by applicant 1., both residing at: xxx, 37213 Witzenhausen,
applicants,
legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Jobcenter Werra-Meißner, represented by the managing director, Fuldaer Straße 6, 37269 Eschwege
, respondent
The 10th Chamber of the Social Court of Kassel decided on November 24, 2017, through its presiding judge, Judge xxx:
The respondent is ordered by way of preliminary injunction to grant the applicants, provisionally until a final and binding decision is reached on the applicants' objection of August 28, 2017, against the decision of August 4, 2017, further housing costs in the amount of EUR 78.52 per month for the period from September 20, 2017, to December 31, 2017. The respondent shall bear the applicants' necessary extrajudicial costs.
Reasons
I.
The parties are now in dispute, within the framework of preliminary injunction proceedings, regarding higher benefits for accommodation and heating costs within the framework of the granting of benefits under the Social Code Book Two (SGB II).
The applicant (1), born on February 21, 1989, lives with her son (2), born on February 4, 2015. After separating from her husband and moving out of the apartment in Witzenhausen, which she had previously shared with the father of the applicant (2), the applicant (1) applied for basic income support for job seekers under Book II of the German Social Code (SGB II) on July 18, 2017, for herself and the applicant (2). The applicant (1) submitted a rental certificate dated July 20, 2017, for a three-room apartment with a living area of 65 m² and a basic rent of €390.00, operating costs of €80.00, and heating costs of €100.00 at her current address at [address redacted] in Witzenhausen.
By decision dated July 27, 2017, the respondent rejected the applicant's request for reimbursement of expenses for new accommodation, arguing that the accommodation costs were not reasonable. Reasonable costs for two people were deemed to be a basic rent including utilities of €337.28 and heating costs of up to €81.60.
The applicant no. 1 signed a lease agreement for the apartment in xxx in Witzenhausen on August 2, 2017, and moved into this apartment with the applicant no. 2 on August 1, 2017.
By decision dated August 4, 2017, the respondent provisionally granted the applicants benefits to secure their livelihood for the period from July 1, 2017 to December 31, 2017. For the months of August to December 2017, the respondent granted housing costs in the amount of EUR 337.28 and heating costs in the amount of EUR 81.60 per month.
On August 28, 2017, the applicants filed an objection by letter dated August 25, 2017, against the decision of August 4, 2017. They argued that the table values of Section 12 of the Housing Benefit Act (WoGG), plus a 10% surcharge, should be used to determine the limits of what is reasonable. They further argued that the expert opinion from the company Analyse und Konzepte, dated March 2014, suffered from such deficiencies in its data collection and analysis that these could not be remedied even by submitting the raw data, and that it was therefore unsuitable for determining reasonableness.
On September 20, 2017, the applicants filed an application for preliminary legal protection with the Kassel Social Court.
The father of applicant no. 2, who has custody alongside applicant no. 1, has approved the procedure.
In response to the objection regarding the amount of income taken into account for applicant no. 1, the respondent stated during the preliminary injunction proceedings that the income would be considered in accordance with the applicants' request. The applicants subsequently declared the proceedings concluded in this respect.
In support of their application for preliminary legal protection, the applicants argue that the concept developed by the company Analyse & Konzepte does not constitute a coherent concept for determining reasonable housing costs, as required by the Federal Social Court's established case law. The entire Werra-Meißner district is used as the sole comparison area. It is already illogical to classify the Werra-Meißner district as the only comparison area when dividing it into the two aforementioned housing market types. The travel times used as the basis for defining the spatial comparison area are unsuitable and, as the sole criterion for determining the comparison area, would render the other findings of the expert opinion irreparably flawed. Furthermore, no subgroupings of homogeneous living and residential areas have been established, and the criteria for determining the housing market types are quite arbitrary. The information in the expert report regarding rent determination, rent factors, collected data, evaluation methodology, the collection of existing and advertised rents, and new rental agreements is also flawed. In summary, the report lacks a coherent concept. The underlying data is based on estimates and not on average data from a nationwide survey in 2006, which is not applicable to the Werra-Meißner district and is also outdated. The already flawed values in the report from March 2014 should have been updated after a maximum of two years. Furthermore, the use of an index value reflecting nationwide conditions is incompatible with legal requirements, as it fails to reflect local housing market conditions. The index update from November 2015 is inconclusive within the meaning of the Federal Social Court's jurisprudence. Based on the case law of the lower courts regarding the necessity of updating the concept after two years or after two years and two months, and taking into account the regulation of Section 558d Paragraph 2 Sentence 3 of the German Civil Code (BGB), a new survey should have taken place no later than May 31, 2017, which has not yet happened.
The move to the apartment at [address redacted] in Witzenhausen was necessary because the respondent was unable to offer the applicants a suitable apartment at their previous residence in Witzenhausen that met the respondent's own criteria for reasonableness. A list of apartments within the entire jurisdiction provided to the respondent included four apartments with a living area exceeding 60 square meters. Therefore, the table values in Section 12 of the Housing Benefit Act (WoGG), plus a 10% surcharge, should be applied to determine the reasonableness limits. Since the applicants' constitutionally guaranteed minimum subsistence level is no longer secured, grounds for an injunction exist. To avoid jeopardizing their good relationship with the landlord, the applicants will cover the difference between the actual and approved housing costs from their standard benefits. This constitutes a significant violation of their fundamental rights.
The applicants request,
to order the respondent, by way of an interim injunction, to grant the applicants, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from the date of receipt of this application by the court, in accordance with the legal opinion of the court, until a final and binding decision is reached on the applicants' objection of 25 August 2017 against the respondent's decision of 4 August 2017 (file no.: 764 43520//0007193).
The respondent requests that
to reject the application.
He argues that the apartment in xxx in Witzenhausen does not meet the criteria for appropriateness according to the "Index Update of the Conclusive Concept 2013, Housing Cost Guidelines 2015, Final Report of November 2015". The concept is conclusive within the meaning of the jurisprudence of the Federal Social Court, which has already been recognized by the 8th Chamber of the Kassel Social Court and confirmed by the 7th and 11th Chambers of the Kassel Social Court.
The lease agreement was concluded without stating any reasons why the applicant had to move out of the apartment of her parents or mother.
The applicants were presented with a list of eight available apartments whose size and cost were deemed appropriate for a two-person household. Further suitable apartments, including some in and around Witzenhausen, were also available. Therefore, adequate housing is available in the comparison area and in Witzenhausen itself.
For further details and documents, in particular for the further submissions of the parties, reference is made to the court file and the respondent's performance file, which were the subject of this decision
II.
The application for a preliminary injunction is successful. It is admissible and well-founded.
The application for an interim injunction in the form of a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG) is admissible.
Pursuant to Section 86b, Paragraph 2, Sentence 1 of the Social Court Procedure Act (SGG), the court may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant (protective injunction). Pursuant to Section 86b, Paragraph 2, Sentence 2 of the SGG, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages (regulatory injunction). Such a disadvantage can only be assumed if, on the one hand, the applicants have a substantive legal claim against them in the main proceedings – potentially – (claim for an injunction) and, on the other hand, it is unreasonable to expect them to await the decision on the claim in the main proceedings (ground for an injunction). If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the facts and the law is not possible in the preliminary injunction proceedings, a decision must be made by weighing the consequences, with a focus on granting effective legal protection. In this process, the applicants' fundamental rights must be comprehensively considered. According to the jurisprudence of the Federal Constitutional Court, the courts must protect and promote the fundamental rights of the individual (see Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05).
Based on these principles, the applicants have credibly demonstrated both grounds for an order and a claim to an order with regard to the requested accommodation costs in the amount of an additional EUR 78.52 per month.
Pursuant 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. The accommodation costs claimed by the applicants, totaling EUR 415.80, appear reasonable to the court, based on the summary review required in preliminary legal proceedings for the period from September 20, 2017 to December 31, 2017.
The determination of the appropriate level of accommodation costs is carried out within the framework of a multi-stage individual case review, whereby the result is based on the product of appropriate living space and appropriate rent per square meter ("product theory") (see Federal Social Court, judgment of November 7, 2006 – 7b AS 18/06 R). According to the case law of the Federal Social Court, the rent ceiling must be determined on the basis of a coherent concept that provides sufficient assurance of reflecting the current conditions of the local rental housing market and that allows for a sufficiently comprehensible limitation of the actual accommodation costs to a "reasonable level" (see Federal Social Court, judgment of June 18, 2008 – B 14/7b AS 44/06 R; Federal Social Court, judgment of September 22, 2009 – B 4 AS 18/09 R). A concept is a planned procedure of the basic income support provider in the sense of the systematic determination and evaluation of general, albeit location- and time-dependent, facts for all application cases in the relevant comparison area. The concept is sound if it meets at least the following requirements: Data collection must take place exclusively within the precisely defined comparison area and must cover the entire comparison area (no ghettoization); a comprehensible definition of the object of observation (e.g., what type of apartments – differentiation by apartment standard, gross and net rent, differentiation by apartment size) must be provided; information about the observation period must be available; the method of data collection (sources of information, e.g., rent index) must be specified; the scope of the collected data must be representative; the validity of the data collection must be guaranteed; the recognized mathematical and statistical principles of data analysis must be adhered to; and information about the conclusions drawn (e.g., upper limit of the range or cap) must be provided (cf., e.g., Federal Social Court, judgment of September 22, 2009 – B 4 AS 18/09 R). To ensure that the current conditions of the local rental housing market are reflected in accordance with the jurisprudence of the Federal Social Court, data must be collected and updated promptly, and there is a continuous obligation to review the concept for its relevance (SG Augsburg, Judgment of 07.12.2015 — S 8 AS 860/15; SG Potsdam, Judgment of 20.08.2010 — S 41 AS 5276/08; SG Dresden, Judgment of 08.05.2017 — S 20 AS 3514/14; LSG Lower Saxony-Bremen, Judgment of 10.06.2016 — L 11 AS 611/15).
Following the summary examination required in expedited proceedings, the court has doubts as to whether the index update of the conclusive concept 2013, final report of November 2015, Werra-Meißner district, cited and applied by the respondent, is still current and thus meets the requirements of the Federal Social Court's jurisprudence for a conclusive concept.
Regarding the ongoing obligation of the job center or the municipal authority to review the concept for its relevance, the applicants point out that, according to the concept for determining the appropriateness of housing costs in the Werra-Meißner district, final report of March 2014, existing rents were collected for the period from October 2012 to May 2013 as of January 1, 2013, and research into advertised rents was conducted for the same period from October 2012 to March 2013, meaning that the data collection period ended no later than May 31, 2013. Therefore, a new survey should have been conducted by May 31, 2017, at the latest, which did not occur. This is based, firstly, on case law, according to which a concept must be updated after two years or, at the latest, after two years and two months. Furthermore, the company Analyse und Konzepte also made use of the regulation in § 558d para. 2 sentence 3 BGB, according to which a qualified rent index or, in this case, a completely new concept must be drawn up no later than four years after the last 4 years.
The court considers these to be compelling arguments with regard to the disputed approval period beginning on September 20, 2017. As far as can be ascertained, no court decision has yet been reached in main proceedings concerning the period after four years have elapsed since the end of data collection. However, it cannot be the court's task, within the scope of the summary review required in preliminary injunction proceedings, to conduct a full review of the continued relevance and thus the applicability of the index update of the conclusive 2013 concept, and to determine whether a completely new concept is necessary after four years. Such a review will—if necessary—have to be reserved for corresponding main proceedings.
However, if a complete clarification of the facts and the legal situation is not possible in expedited proceedings, the matter must be decided by weighing the consequences. In the present case, this weighing of interests favors the applicants. The disadvantages for the applicants, who are receiving benefits under the German Social Code, Book II (SGB II), namely the non-payment of €78.52 per month, outweigh the disadvantages for the respondent if preliminary legal protection were granted, as well as the principle that financial resources may only be used in accordance with legal regulations. The respondent is adequately protected by the fact that the additional housing costs are only granted provisionally and that the court takes into account the limits of the wording of Section 22 Paragraph 1 Sentence 1 of the SGB II.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the assumption of actual housing and heating costs is only possible to the extent that the expenses are reasonable. A suitable, appropriate, and practical standard is required to define what is reasonable, in order to prevent harm to the community of taxpayers and to avoid benefit fraud. In the absence of other means of ascertaining the reasonableness of the housing costs, the court, within the framework of these preliminary injunction proceedings, determines the reasonableness of the housing costs based on the values in the right-hand column of the table to Section 12 of the Housing Benefit Act (WoGG), taking into account a 10% surcharge on the calculated table value. This is consistent with the jurisprudence of the Federal Social Court, insofar as local avenues of investigation are insufficient (see Federal Social Court, judgment of October 19, 2010 – B 14 AS 15/09 R; Federal Social Court, judgment of December 17, 2009 – B 4 AS 50/09 R; Federal Social Court, judgment of September 22, 2009 – B 4 AS 18/09 R). The housing benefit table shows an amount of EUR 378.00 for two persons in the relevant rent level I. The calculated table value must be increased. According to the jurisprudence of the Federal Social Court, a "safety supplement" to the respective table value is considered necessary in the interest of protecting the fundamental need for secure housing. Because, in the absence of a conclusive concept, it cannot be determined with certainty what the appropriate reference rent actually was (see Federal Social Court [BSG], judgment of December 17, 2009 – B 4 AS 50/09 R; BSG, judgment of September 22, 2009 – B 4 AS 18/09 R; BSG, judgment of October 19, 2010 – B 14 AS 15/09 R). The court applies a safety margin of 10% (see, e.g., Higher Social Court of Lower Saxony-Bremen [LSG Niedersachsen-Bremen], decision of August 12, 2011 – L 15 AS 173/11 B ER). This results in a monthly amount of EUR 415.80 for the appropriateness of the accommodation costs. The applicants are claiming, within the framework of these expedited proceedings, the difference between this amount and the accommodation costs of EUR 337.28 approved by the respondent, i.e. EUR 78.52 per month.
The applicants do not request the assumption of the actual costs of accommodation, based on a proper interpretation of the application and in particular on their submissions in the proceedings, so the court does not have to decide on this matter.
The actual heating costs of €100.00 per month are deemed unreasonable upon preliminary review in these expedited proceedings. The court considers it appropriate to use the right-hand column of the nationwide Heating Cost Index 2016, published at the time of the respondent's decision, based on an abstractly reasonable apartment size of 60 m², to determine reasonable heating costs (see Federal Social Court, Judgment of June 12, 2013 – B 14 AS 60/12 R). Based on this, heating costs of €81.50 can be considered reasonable. The applicants are not seeking any further payment beyond the €81.60 in heating costs already granted by the respondent, and therefore the court did not have to issue a dismissal in this respect.
The applicants have also demonstrated grounds for an injunction. The applicant's specific situation must be considered in each individual case. The assessment of grounds for an injunction must not be schematic. Rather, the court must examine whether a substantial disadvantage exists in the specific case and may not rely solely on the filing of an eviction lawsuit (see Federal Constitutional Court, decision of August 1, 2017 – 1 BvR 1910/12). Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) stipulates the assumption of "reasonable" costs and, in conjunction with other benefits, serves to ensure a minimum standard of living beyond merely preventing homelessness. This includes, where possible, maintaining the chosen living space within an existing social environment. Therefore, when examining whether grounds for preliminary legal protection exist, the negative consequences – financial, social, health-related, or otherwise – that the loss of this specific apartment would have for the individuals concerned must be considered as part of the evaluative assessment (see Federal Constitutional Court, decision of August 1, 2017 – 1 BvR 1910/12).
Based on these standards, given the existing shortfall in benefits, especially since a two-year-old child lives in the household, it is unreasonable to expect the applicants to await the outcome of main proceedings. The court acknowledges that, despite the respondent's refusal to provide the assurance required under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), the applicants moved into an apartment on August 1, 2017, the costs of which—regardless of the respondent's soundness of the concept—cannot be considered reasonable even according to the values in the table to Section 12 of the Housing Benefit Act (WoGG) plus a 10% safety margin. However, it must also be taken into account that, due to the separation of the first applicant from her husband and the justification, which the court found plausible during the preliminary injunction proceedings, that staying with the mother was only possible and reasonable for a short period, the applicants had to find a quick solution to avoid homelessness. The court also found that, given the age of the second applicant, the employment status of the first applicant, and the fact that the applicants might otherwise have suffered social disadvantages due to their previous place of residence, such accommodation was initially only feasible in Witzenhausen. Furthermore, the court considered that, due to deductions for employed benefit recipients pursuant to Section 11b Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), the accommodation would be financed at least for a certain period, as the difference between the actual costs of accommodation and heating does not exceed the deduction of €100.00.
In determining the period of the preliminary injunction, the court – as requested by the applicants regarding the commencement date – based its decision on the date of receipt of the application for preliminary legal protection on September 20, 2017, and on the end of the current grant period on December 31, 2017 (see Krodel, Das sozialgerichtliche Eilverfahren [The Social Court's Expedited Proceedings], 3rd edition, para. 506).
The court did not have to decide on the amount of income to be considered for applicant no. 1 due to the declaration of settlement dated November 23, 2017.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and follows the decision on the merits.
The appeal against this decision is excluded (§ 172 para. 3 SGG).
