VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal Representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Werra-Meißner district, represented by xxx,
defendant,
The 12th Chamber of the Social Court of Kassel, in the oral proceedings of March 21, 2018, through the presiding judge, Judge xxx of the Social Court, and the lay judges Mr. xxx and Ms. xxx, rendered the following judgment:
1. The decision of June 16, 2016, as amended by the decision on the objection of August 10, 2016, is amended.
2. The defendant is ordered to grant the plaintiff accommodation costs in the amount of his monthly gross rent of €184.50 for the period from July 1, 2016 to June 30, 2017.
3. The defendant shall reimburse the plaintiff for the costs of the legal proceedings.
4. The appeal is admitted.
FACTS
In the present legal dispute S 12 SO 112/16, the parties are in dispute regarding the granting of higher housing costs (KdU) from July 1, 2016 to June 30, 2017, within the framework of benefits under Chapter Four of the Social Code – Social Assistance (SGB XII); this is subject to deduction of the costs already assumed by the defendant in the amount of €168.64 per month, limited to the plaintiff's share of the actual gross rent excluding utilities, amounting to €184.50 per month.
The plaintiff, born in 1962 and married, initially received benefits from the Werra-Meißner district job center and, based on an application dated June 18, 2015, received benefits under Chapter Three of the German Social Code, Book XII (SGB XII) from July 2015 onwards – after the pension insurance provider had not yet determined that he was fully incapacitated for work. He lives together with his wife, born in 1969, who also receives benefits under SGB XII, and their adult, employed daughter who is not eligible for benefits, in a 120m² single-family house rented in 2009 at xxxstraße xx in Witzenhausen (town). The defendant initially allocated two-thirds of the total rental costs to the plaintiff and his wife, calculating the gross rent (including utilities) for the plaintiff and his wife at €369.01 per month (€266.68 basic rent + €102.33 other operating costs), and the heating costs at €104.00 per month (for natural gas heating). The plaintiff's monthly share of this – half – was €133.34 for the basic rent and €51.16 for the other operating costs, totaling €184.50 for the so-called "cold operating costs"; the remaining €52.00 was for heating costs.
Based on this, the defendant initially also took the actual accommodation costs into account when calculating benefits. However, based on an expert opinion prepared for the defendant by the company Analyse und Konzepte, Hamburg, regarding the appropriateness of the accommodation costs, the expert opinion, dated March 2014, indicated that for a two-person household in Witzenhausen, based on a data collection ending no later than May 31, 2013, the actual appropriate accommodation costs for the plaintiff and his family would have amounted to a total of €309.76 per month (basic rent plus cold utilities), of which €154.88 would have been attributable to the plaintiff.
At the same time, the defendant initiated a cost-reduction procedure in this regard by letter dated September 21, 2015, and, as announced in the aforementioned letter, after a period of six months, by decision dated January 29, 2016, considered only a gross rent of €309.76 per month and heating costs of €101.40 per month for the period from April 1, 2016, onwards. Simultaneously, the provision of benefits for a benefit period from November 1, 2015, to June 30, 2016, was retroactively changed from November 1, 2015, to a benefit provision under Chapter Four of the German Social Code, Book XII (Basic Income Support for the Elderly and Persons with Reduced Earning Capacity), after the pension insurance provider had meanwhile determined the existence of a permanent and total reduction in earning capacity. The plaintiff's monthly share of the basic rent including cold ancillary costs from 1 April 2016 onwards was solely the aforementioned €154.88, and €50.70 for heating costs, which corresponded to a shortfall of €29.62 per month for the plaintiff's cold rent and €1.30 per month for heating costs.
On February 24, 2016, the plaintiff then spoke with the defendant's caseworker and requested that the defendant continue to cover his accommodation costs at the previous rate starting in April 2016. He requested a decision by February 29, 2016, stating that otherwise he would file an appeal. In a letter dated February 29, 2016, the defendant's Department of Youth, Family, Seniors, and Social Affairs informed the plaintiff, in essence, that the reduction in accommodation costs would remain in effect. However, the letter also requested further details from the plaintiff regarding health reasons he had cited that would prevent him from moving, and asked him to provide a response as soon as possible.
By fax dated March 14, 2016, the plaintiff's attorney responded, stating that he joined the plaintiff's objection to the decision of January 29, 2016. The defendant then informed him by letter dated March 30, 2016, that in his opinion the objection was untimely and therefore inadmissible. The plaintiff's attorney countered that the objection had been filed on February 24, 2016, and thus within the prescribed time limit.
By decision on objection dated April 26, 2016, the defendant rejected the objection to the decision of January 29, 2016 as inadmissible, referring to the fact that, in the defendant's opinion, the objection was time-barred.
Against the decision of January 29, 2016, as amended by the appeal decision of April 26, 2016 , the plaintiff filed a lawsuit on April 29, 2016, with the Social Court in Kassel under file number S 12 SO 59/16, concerning the benefit period from April 1, 2016, to June 30, 2016. At the same time, he limited his claim to his share of the actual gross rent (excluding utilities) by deducting the costs already covered by the defendant. This limited the amount of the housing costs attributable to him (€184.50 per month).
The aforementioned action, filed under file number S 12 SO 59/16, was ultimately dismissed by the Chamber in its judgment of March 21, 2018. This was based on Section 136 Paragraph 3 of the Social Courts Act (SGG), citing the grounds stated in the objection decision of April 26, 2016, and the defendant's further submissions in the legal proceedings, namely that, in the Chamber's opinion, the objection to the decision of January 29, 2016, was filed too late and was therefore inadmissible.
At the same time, following the aforementioned filing of the lawsuit, the defendant, in the further course of these proceedings, also considered the objection to the decision of January 29, 2016, which he deemed inadmissible, as a review application pursuant to Section 44 of the German Social Code, Book X (SGB X), and finally granted this application in part by decision of August 10, 2016 , at least insofar as the plaintiff's accommodation costs (basic rent/cold ancillary costs) for the period from April 1, 2016 to June 30, 2016, and thus within the aforementioned benefit period, were increased by €13.76 per month, and the plaintiff's share of the accommodation costs was therefore €168.64 per month instead of the aforementioned €154.88, so that the monthly shortfall in cold rent costs was reduced from €29.62 to €15.86. However, the review application pursuant to Section 44 of the German Social Code, Book X (SGB X) was rejected with regard to the requested reimbursement of actual accommodation costs.
The defendant explained that if, in a specific case, it turns out that the law was incorrectly applied or that the decision was based on facts that prove to be incorrect, and if, as a result, social benefits were wrongfully withheld, the administrative act must be revoked with retroactive effect, even after it has become legally binding (§ 44 para. 1 sentence 1 SGB X). The new maximum amounts applicable from April 1, 2016, only came into effect after the decision of January 29, 2016, was issued, so the higher accommodation costs could now be taken into account in the review proceedings. Otherwise, the decision of January 29, 2016, was not objectionable. The plaintiff and his wife had been informed by letter dated September 21, 2015, that the actual accommodation costs were too high. They were simultaneously informed about the reasonable costs of accommodation and, pursuant to Section 24 of the German Social Code, Book X (SGB X), were given the opportunity to explain any reasons that might preclude a move or a reduction of accommodation costs to the reasonable level. Initially, the couple did not respond. Therefore, no reasons were presented that could justify continuing to cover the full rent. Consequently, the accommodation costs were reduced to the level deemed reasonable for the Werra-Meißner district at the time of the decision, effective April 1, 2016. It is now being argued that a move is unreasonable for the plaintiff and his wife due to health reasons. No supplementary evidence regarding their state of health has been provided; instead, reference has been made to the health conditions already known to the defendant. The medical records contained in the file have been forwarded to the defendant's public health department for review of the plaintiff's and his wife's fitness to move. According to a medical report dated May 3, 2016, the plaintiff and his wife were already well-known in the area, and from the medical perspective, there was no reason why they could not move to another apartment. However, due to their health impairments, they would require assistance with the move. Even considering the individual circumstances, no reasons were apparent or presented that would make the plaintiff and his wife's move unreasonable and thus justify covering their actual housing costs. In the preceding appeal proceedings, the plaintiff's legal representative had argued that the conclusive concept and the maximum amounts applicable to the Werra-Meißner district contained therein were unlawful and therefore demanded that the actual housing costs be covered. The plaintiff and his wife, along with their daughter, who is not eligible for benefits under the German Social Code, Book XII (SGB XII), live in a 120 m² detached house in Witzenhausen (town). For the benefit period up to March 31, 2016, one-third of the actual, documented accommodation costs were recognized and taken into account in the plaintiff's case. A reduction to the maximum amounts applicable at the time of the decision took effect on April 1, 2016 (basic rent/utilities: €154.88 and €50.70 heating costs). The maximum amounts applicable to the Werra-Meißner district have since been adjusted, so that the maximum amount for a two-person household in Witzenhausen has increased from €309.76 by €27.52 per month to the current €337.28. The plaintiff's share per person from April 2016 onwards is therefore €168.64. The decision of January 29, 2016, is hereby revoked and amended accordingly with regard to accommodation costs pursuant to Section 44 of the German Social Code, Book X (SGB X), for the period from April 1, 2016. Heating costs will initially continue to be paid at the same rate. The housing cost allowance for the period from April 1, 2016, will be increased from €154.88 to €168.64.
The defendant rejected the objection of August 23, 2016, against the decision of August 10, 2016, as unfounded by decision of November 21, 2016
The defendant explained that, according to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the actual costs for accommodation and heating would only be fully covered if they were reasonable. According to Section 35 Paragraph 2 of the SGB XII, unreasonable accommodation costs would only be covered as long as it was impossible or unreasonable for the recipient to move, but generally for a maximum of six months. The recognized reasonable housing requirement derives from the purpose of social assistance under Section 1 of the SGB XII, which is to enable recipients to lead a life that corresponds to human dignity, and from Section 27a of the SGB XII, which stipulates that the necessary means of subsistence must be provided. Therefore, the standard to be set is one that meets basic needs. When determining reasonable accommodation costs, the actual conditions of the local housing market, the local rent index, and the recipient's family circumstances must be taken into account. To comply with this legal requirement in conjunction with the jurisprudence of the Federal Social Court regarding the assessment of reasonable housing costs, the Werra-Meißner district commissioned an expert report from the company Analyse & Konzepte to determine the local average rents. Based on these findings, the housing cost concept for the Werra-Meißner district has been in effect since April 1, 2014. Meanwhile, the 8th Chamber of the Kassel Social Court ruled on March 17, 2016 (Case No. S 8 AS 447/14) that the concept developed by Analyse & Konzepte for determining the reasonableness of housing costs in the Werra-Meißner district meets the Federal Social Court's requirements for a conclusive concept. However, an appeal against this ruling is currently pending. Furthermore, several social courts at first instance, as well as some state social courts, have already confirmed the conclusive concepts developed by the company Analyse & Konzepte: for example, the State Social Court of Mecklenburg-Vorpommern in the oral hearing of December 4, 2013, L 10 AS 72/10, concerning the district of Vorpommern-Rügen; the State Social Court of Hesse with its decision of November 6, 2013, L 4 SO 166/13 B ER, concerning the district of Gießen; the State Social Court of Rhineland-Palatinate in case L 4 AS 286/12, concerning the district of Bitburg-Prüm; and the State Social Court of Thuringia with its judgment of July 8, 2015, L 4 AS 718/14, concerning the district of Gotha. The sound concept developed by the company Analyse & Konzepte for the Werra-Meißner district currently complies with the requirements of the Federal Social Court (BSG), meaning that the accommodation costs determined using this concept must also be applied as limits of reasonableness. The amounts according to the Housing Benefit Act (WoGG) plus 10% are only used if no sound concept exists. Based on the rental values determined by Analyse & Konzepte for the Werra-Meißner district, the following reasonable expenses for a two-person household in Witzenhausen would result for the plaintiff: basic rent/utilities €337.28, heating costs €101.40, totaling €438.68, of which the plaintiff's share is €168.64 basic rent/utilities and €50.70 heating costs, totaling €219.34. In contrast, the actual costs of the apartment would be comprised as follows: basic rent/utilities €588.37, heating costs €169.00, totaling €757.37. Based on per capita shares, the actual costs for a two-person household would amount to €392.25 for basic rent/utilities, €112.67 for heating costs, and thus a total of €504.92. The accommodation costs exceeding the reasonable amount would total €66.24, of which €33.11 would be the plaintiff's share. As part of the review application, the accommodation costs were adjusted by increasing the plaintiff's per capita share by €13.76 per month. The plaintiff and his wife's share of the actual basic rent/utilities, amounting to €392.25, continues to exceed the reasonable amount for a two-person household (€337.28) by €94.97 per month. The plaintiff and his wife are also responsible for two-thirds of the heating costs, amounting to €112.67 per month. However, only a reasonable amount of €101.40 was considered and taken into account when granting benefits. According to the Federal Social Court (BSG) ruling of December 12, 2013 (B 4 AS 87/12 R), accommodation is considered adequate if, in terms of its furnishings, location, and building structure, it meets basic needs and does not represent a superior standard of living. It is sufficient that the product of living space and standard, as reflected in the rent, is reasonable; that is, the rent to be covered does not exceed the reasonable upper limit for the relevant district used as a benchmark. According to established case law of the BSG, the appropriate living space is based on the standard sizes of apartments for eligible residents in social housing (BSG ruling of May 16, 2012, B 4 AS 109/11 R). For Hesse, housing standards are based on the administrative regulations of the Hessian Housing Promotion Act (HWoFG). Accordingly, an apartment of 60 square meters is considered adequate for a two-person household. The single-family home rented by the plaintiff and his wife is 120 square meters in size. Even after deducting one-third of the area allocated to their ineligible daughter, the plaintiff and his wife would still have 80 square meters. This significantly exceeds the reasonable limit for the size of the living space. Therefore, the apartment is also not considered reasonable in terms of cost for a two-person household as defined in Section 35 of the German Social Code, Book XII (SGB XII). According to the defendant's records, suitable and available housing has been available in the Werra-Meißner district since the notification of the reduction in housing costs. In principle, housing options throughout the district can be considered. Since the plaintiff is demonstrably receiving psychiatric treatment at the outpatient clinic of the hospital in the district capital, and not in Witzenhausen, new housing, particularly in the Eschwege area, can also be considered. Before the cost reduction to the appropriate level was implemented on April 1, 2016, the plaintiff and his wife had already been informed of the intended reduction in housing costs in the cost reduction request of September 21, 2015. They were informed of the aforementioned maximum amounts and simultaneously asked to explain why a cost reduction, particularly in the form of moving to a more affordable apartment, was not an option. The plaintiff and his wife provided no response to this request. They also failed to demonstrate any efforts on their part to find a more affordable apartment. Before a cost reduction is implemented due to unreasonable costs, the feasibility and reasonableness of such a reduction must be assessed. This assessment must take into account the individual circumstances of each case. A change of accommodation may be entirely unreasonable, for example, in cases of severe mental illness. As a general rule, any move involves a certain degree of change in one's immediate social environment, which the law deems acceptable. The mere desire to remain in one's location or to keep one's home is insufficient. Rather, there must be specific reasons that justify an exception. For example, a move could be deemed unreasonable due to serious health reasons. However, a distinction must be made between the unreasonableness of the move itself
, for which the necessary benefits could be provided if, for instance, the move cannot be carried out independently due to health reasons, and the unreasonableness of the change of accommodation in general, such as in cases of severe mental illness. During the cost reduction proceedings and also in the appeal proceedings, the plaintiff and his wife primarily based their inability to move on health limitations, but failed to provide sufficient evidence. In the current appeal proceedings, the assumption of actual accommodation costs is no longer based on the plaintiff's or his wife's state of health, and consequently, no further evidence has been provided in this regard. The medical records contained in the case file up to April 27, 2016, were forwarded in full to the Medical Service of the Werra-Meißner district, requesting an opinion on the plaintiff's and his wife's ability to relocate. In his official medical report dated May 3, 2016, the Medical Service stated that the plaintiff and his wife were already sufficiently known to the district. From the medical perspective, there was no reason why they could not move to a different apartment. However, due to their disabilities, they required support, particularly with physically demanding tasks, and possibly also with organizational matters. Therefore, there was no case of hardship that would preclude a move in principle, based on medical grounds. Regarding the family's knowledge of the unreasonable housing costs, it should be noted that the plaintiff and his wife had already received benefits under the German Social Code, Book XII (SGB XII) from the Werra-Meißner Job Center for several years before beginning to receive benefits under the SGB II. Cost-reduction proceedings had also been initiated and legal disputes had been pursued by the previously responsible social welfare agency. The fact that the costs for the 120m² rented single-family home were not considered reasonable under social welfare law should therefore be well known to the couple. The fact that the costs have now been reduced to a reasonable level was thus not a sudden or unexpected event, and the plaintiff and his wife could have long since rented more affordable and reasonable housing. The plaintiff did not agree to a suspension of the appeal proceedings pending a decision on the appeal regarding the Werra-Meißner district's plan. Therefore, a decision had to be issued immediately.
Against the review decision of August 10, 2016, as amended by the appeal decision of November 21, 2016, the plaintiff, in the review proceedings concerning the benefit period from April 1, 2016 to June 30, 2016, filed a lawsuit with the Social Court in Kassel on December 22, 2016, under file number S 12 SO 168/16 . At the same time, he limited his claim, taking into account the costs already covered by the defendant in the amount of €168.64 per month, to his share of the actual gross rent (excluding utilities) in the amount of his share (€184.50 per month).
Previously, the defendant had also granted the plaintiff continued basic income support benefits for the period from July 1, 2016, to June 30, 2017, pursuant to Chapter Four of the German Social Code, Book XII (SGB XII), by decision dated June 16, 2016. This was based on a monthly basic rent share of €168.64, including utilities, which the defendant considered the only appropriate amount, and heating costs of €50.70 per month. The plaintiff also filed an objection to this decision, which the defendant ultimately rejected as unfounded by decision dated August 10, 2016. This rejection was based on the same grounds as the aforementioned review application, which had only been partially granted by decision of August 10, 2016, and for which the defendant subsequently rejected the plaintiff's subsequent objection by decision dated November 21, 2016.
Against the decision of June 16, 2016, as amended by the appeal decision of August 10, 2016, the plaintiff filed a lawsuit on August 16, 2016, with the Social Court in Kassel under file number S 12 SO 112/16, At the same time, he again limited his claim, taking into account the costs already covered by the defendant in the amount of €168.64 per month, to his share of the actual gross rent (excluding utilities) in the amount of his share (€184.50 per month).
The plaintiff maintains his claim for reimbursement of housing costs, taking into account the costs already covered by the defendant in the amount of 168.64 per month, in the legal disputes S 12 SO 168/16 and S 12 SO 112/16, insofar as these costs are attributable to the plaintiff, and in this respect amounting to 184.50 per month, despite the partial remedy ultimately granted by the defendant as of April 1, 2016.
In support of his claim, the plaintiff, through his legal representative, argues, among other things and in summary, with further detailed explanations, 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 (BSG) in its established case law. The entire Werra-Meißner district is assumed to be the sole comparison area, encompassing only two housing market types. It is already illogical to classify the Werra-Meißner district as the sole comparison area when divided into these two housing market types. The travel times used as the basis for establishing the spatial comparison area are unsuitable and, as the sole criterion for determining the comparison area, render the other findings of the expert opinion irreparably flawed. Furthermore, no subgroupings of homogeneous living and residential areas have been created, 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. The report is therefore not based on 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, dated March 2014, should have been updated at least every two years. Furthermore, the use of an index value reflecting nationwide conditions for updating the data is not compatible with legal requirements, as it does not reflect the local conditions of the housing market.
The actual costs of the gross rent attributable to him, as claimed, should therefore be granted to him not only in legal dispute S 12 SO 112/16 for the period from July 1, 2016 to June 30, 2017, but also in legal dispute S 12 SO 168/16 for the period from April 1, 2016 to June 30, 2016, despite the defendant's claim in legal dispute S 12 SO 59/16, which was upheld by the court, and the time limit for filing an objection to the decision of January 29, 2016. Based on the foregoing, the decision of January 29, 2016 was unlawful within the meaning of Section 44 of the German Social Code, Book X (SGB X), beyond the aforementioned "partial remedy" granted by the defendant.
The plaintiff requests in the legal dispute S 12 SO 112/16,
to amend the decision of June 16, 2016, as amended by the decision on the objection of August 10, 2016, and to order the defendant to grant the plaintiff housing costs in the amount of the actual gross rent excluding utilities for the period from July 1, 2016, to June 30, 2017, insofar as these costs are attributable to the plaintiff.
The defendant applies in the legal dispute S 12 SO 112/16,
to dismiss the lawsuit.
The defendant maintains the contested decisions and the aforementioned statements contained therein, arguing that, in addition to the aforementioned case law, he also considers the case law of the 8th Chamber of the Kassel Social Court to be expressly confirmed for asylum seeker benefits law and the German Social Code, Book XII (SGB XII), among others, in its judgments of September 7, 2017, S 11 AY 6/16 and S 11 SO 169/16, following the case law of the 11th Chamber of the Kassel Social Court. This is particularly true in the present case, as the 11th Chamber, in its latter judgment (appeal pending before the Hessian State Social Court under file number L 4 SO 170/17), dismissed all the parallel actions brought by the plaintiff's wife. Furthermore, the defendant refers to the plaintiff's attorney's further submissions and objections to the aforementioned concept, as well as to statements made by the company Analyse & Konzepte on this matter, including those dated May 9, 2017 and August 30, 2017.
For further details, in particular for the respective further submissions of the parties, reference is made to the contents of the court file as a whole; reference is also made to the administrative files of the defendant, the essential content of which relating to the present legal dispute was also the subject of the oral hearing, in which the chamber heard the plaintiff again in person. As previously stated in writing, the presiding judge of the chamber also pointed out orally to the parties during the oral proceedings that – unlike the 8th Chamber in the SGB II and the 11th Chamber of the Kassel Social Court in the SGB XII and under the Asylum Seekers' Benefits Act (AsylbLG) – the 3rd Chamber of the Kassel Social Court, in the area of SGB II, had meanwhile, in several judgments dated February 19, 2018 – at least partially served on the parties there, but not yet published – ordered the Werra-Meißner district job center to grant housing costs based on the actual expenses of the plaintiffs in those cases, amending the decisions challenged there, whereby the actual costs – as in the present case – did not exceed the values of the respective housing benefit table plus a safety margin. In case S 3 AS 236/15, which has already been served on the parties there, the court reasoned, among other things, that the concept used by the defendant in that case to determine the appropriateness of accommodation costs in the Werra-Meißner district, which corresponds to the one at issue here, does not comply with the requirements established by the Federal Social Court (BSG) for setting a rent ceiling. This is because the defendant defines the entire district of Werra-Meißner – which is also disputed in the present case – as a single comparison area, but this is not a suitable comparison area within the meaning of the BSG's jurisprudence, as the Werra-Meißner district, lacking a major urban center and four medium-sized centers, does not constitute a homogeneous living environment. Like the Third Chamber, the presiding judge of the present chamber also referred to the 2009 North Hesse Regional Plan (see https://rp-kassel.hessen.de). Furthermore, reference was also made to the chronicle of the Werra-Meißner district on the occasion of the 40th anniversary of its founding in 1974 (see www.werra-meissner-kreis.de), the Integrated Municipal Development Concept (IKEK) of the town of Witzenhausen, final report as of February 2016 (see www.witzenhausen.eu), the 2010 Witzenhausen town report by the Kassel-Marburg Chamber of Industry and Commerce (see www.ihk-kassel.de), and the Werra-Meißner Regional Development Concept 2014–2020 (see www.vfr-werra-meissner.de). Finally, the chairman of the adjudicating chamber also expressly disclosed to the participants his own extensive local knowledge of the Werra-Meißner district.
REASONS FOR DECISION
The action is admissible; in particular, it was filed in due form and time before the competent court (§§ 87, 90 Social Court Act – SGG). The parties have permissibly limited the subject matter of the dispute to the costs of accommodation and heating within the meaning of § 35 para. 1 SGB XII for the aforementioned disputed benefit period. Claims for benefits for accommodation and heating are severable, independent claims, and a limitation of the subject matter of the dispute is therefore permissible (see, inter alia, Federal Social Court, judgment of June 16, 2015, B 4 AS 44/14 R). Specifically, the only remaining point of contention, as outlined in the application made during the oral proceedings, is the cost of the monthly gross rent excluding utilities. The plaintiff has not claimed any heating costs exceeding those already granted.
The action is also well-founded.
The contested decisions are – insofar as they are contested – partially unlawful. The defendant is obligated to grant the plaintiff, for the period from July 1, 2016, to June 30, 2017, the amount of the housing costs already paid to him in the amount of €168.64 per month, in the amount of the aforementioned monthly gross rent excluding utilities, which he would actually be entitled to.
That the plaintiff is entitled to benefits under Chapter Four of the German Social Code, Book XII (SGB XII), and in that respect also taking into account reasonable costs of accommodation itself, is undisputed between the parties, and is also the case legally and factually after review by the Chamber.
According to Section 35 of the German Social Code, Book XII (SGB XII), housing costs are covered up to the amount of the actual expenses, provided they do not exceed a reasonable amount (Section 35, Paragraph 2, SGB XII). A reduction in housing costs is only possible for the social welfare provider under Section 35, Paragraph 2, Sentence 2, SGB XII if the beneficiary is informed of the housing costs, which the social welfare provider considers unreasonably high, and a reduction in costs does not occur within six months.
With the aforementioned judgment of the 11th Chamber of the Social Court of Kassel in the legal dispute of the plaintiff's wife (S 11 SO 169/16), the cost reduction procedure initiated by the defendant on September 21, 2015, entitled the defendant to grant subsistence assistance to the plaintiff's wife from April 1, 2016, only on the basis of the reasonable rent amount, which deviates from the actual accommodation costs, according to the aforementioned concept.
In this regard, the 11th Chamber stated, among other things, the following:
"According to the established case law of the Federal Social Court (see, among many others, the judgment of November 18, 2014, B 4 AS 9/14 R, paragraphs 13 et seq., cited according to juris, with further references), the appropriateness of housing costs must be determined in a multi-stage process based on the so-called product theory: First, it must be examined whether the actual housing costs of the benefit recipient are appropriate in abstract terms, that is, whether the costs correspond to what would be required for a dwelling considered appropriate according to abstract criteria on the relevant housing market (abstract appropriateness test). If the actual housing costs exceed the abstractly determined reference rent, it must be examined whether a dwelling that meets the abstract criteria is actually available and can be rented by the benefit recipient on the rental market. The abstract appropriateness of housing costs, which is expressed in the abstractly appropriate reference rent, must be determined in several steps: First, the appropriate size of the dwelling must be determined. Then, it must be established whether The rented apartment must correspond to the product of adequate living space and standard reflected in the rent. The benchmark for comparison is the spatial conditions at the place of residence of the person in need of assistance, whereby the local conditions of the housing market must be determined and taken into account. The assessment of adequateness requires an individual case review, for which the standardized maximum amounts specified in Section 8 of the Housing Benefit Act (WoGG) or Section 12 of the WoGG do not provide a valid basis and can, at best, be considered as a guideline only when all other avenues of inquiry have been exhausted (Federal Social Court, Judgment of November 7, 2006 - B 7b AS 18/06 R). If no corresponding rent indices or rent databases (pursuant to Sections 558c et seq. of the German Civil Code - BGB) exist and no further information is available locally, recourse can be made to the table in the WoGG or to the permissible rent limits of the state housing promotion regulations enacted in addition to the Housing Promotion Act. The following options must be considered. When resorting to tables or funding regulations, a compensatory supplement of 10% to the table values must be applied in favor of the benefit recipient. The term "appropriateness" is an indeterminate legal term, i.e., a standard of evaluation requiring interpretation and subject to unrestricted judicial review (see, for example, Federal Social Court [BSG] judgment of April 13, 2011, B 14 AS 32/09 R, paragraph 11, cited according to juris). The rent ceiling must be determined taking into account the conditions of a subsistence-level benefit system. It should reflect reality, i.e., the conditions on the rental housing market in the relevant area, because the benefit is intended to enable the person in need to satisfy their basic need for housing under conditions appropriate to basic social security law, and their center of life should be protected. The determined appropriate reference rent or rent ceiling must be chosen in such a way that the person in need of assistance is able to rent a "suitable apartment" in the specific comparison area (see also HLSG, decision of November 6, 2013, L 4 SO 166/13 B ER, paragraph 26, cited according to juris).
…
It should first be noted that the apartment occupied by the plaintiff together with her husband and daughter, who is not entitled to benefits, at xxxstraße xx, 37213 Witzenhausen, is, according to the apartment size of 120 m² stated in the lease, also inappropriately large for two people. To determine the appropriate living space, the living space sizes for eligible residents in social housing must be used as a guideline (established case law of the Federal Social Court since the judgment of November 7, 2006, B 7b AS 10/06 R). In this respect, the court establishes, normatively and independently of specific local circumstances, which apartment sizes are to be considered abstractly appropriate for those in need of assistance. The decisive factor is the regulation in force during the period in dispute (see, most recently, the Federal Social Court's judgment of December 20, 2011, B 4 AS 19/11 R).
In accordance with this case law, a living space of 60 m² is considered appropriate for a two-person household (as in the case of the plaintiff and her husband). The eligible living space is to be determined based on the criteria for eligibility for social housing subsidies and the applicable regulations (§ 5 of the Housing Commitment Act in conjunction with § 27 paragraphs 1 to 5 of the Housing Promotion Act). According to section 4.2.1 of the Guidelines for Social Housing Promotion of February 20, 2003 (Official Gazette, p. 1346), as amended by the Guidelines of January 19, 2004 (Official Gazette, p. 628), an apartment size of up to 45 m² is appropriate for one person, up to 60 m² for two persons, and an additional 12 m² for each additional person. It is therefore clear that the apartment occupied by the plaintiff and her family during the period in dispute exceeds the reasonable value of 60m² for the couple by 20m². This excess would only be irrelevant for the purposes of social assistance if the product, expressed as the amount of rent, were nevertheless reasonable within the meaning of Section 35 of the German Social Code, Book XII (SGB XII), which is not the case here. This is because the plaintiff's expenses for the apartment exceed the upper limit of what is considered reasonable, as defined above, within the relevant comparison area
The adjudicating chamber fully agrees with the foregoing statements, at least with regard to the legal and factual prerequisites for a cost reduction, but not with regard to the final conclusion drawn.
Although the apartment occupied by the plaintiff and his wife significantly exceeds the previously established reasonable value of 60 m², even according to the established case law of this chamber, the upper limit of reasonableness applied by the defendant cannot, contrary to the opinion of the 11th Chamber and the 3rd Chamber of the Kassel Social Court in their aforementioned judgments of February 19, 2018, be used to determine the relevant limit of reasonableness in this case. The concept/expert opinion used by the defendant from the company Analyse & Konzepte, Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH (Consulting Company for Housing, Real Estate, Urban Development Ltd.) for determining the appropriateness of accommodation costs in the Werra-Meißner district, in the version of the final report from March 2014, which is still relevant here – albeit updated – and based on data collected in 2013, does not, in the opinion of the adjudicating chamber, comply with the requirements established by the Federal Social Court (BSG) for setting a rent ceiling for the disputed legal case to be decided here.
In this respect, after specifying a limit of appropriateness by determining an abstractly appropriate apartment size, it would be necessary to clarify which spatial benchmark should be used for the further steps of the review (Federal Social Court [BSG], Judgment of November 18, 2014, B 4 AS 9/14 R). The so-called comparison area within the meaning of the BSG's jurisprudence refers to sufficiently large areas of residential development due to spatial proximity, with interconnected infrastructure and, in particular, transport links. As the Third Chamber of the Court recently reiterated, the comparison area must, when considered as a whole, constitute a homogeneous living and residential area (BSG, Judgment of June 16, 2015, B 4 AS 44/14 R). The precise definition of the relevant comparison area is the central requirement of the Federal Social Court (BSG) for determining the rent ceiling for a specific area (see Higher Social Court of Mecklenburg-Western Pomerania, judgment of July 11, 2017, L 10 AS 333/16). The proper definition of the comparison area is therefore a logical prerequisite for developing a coherent concept (BSG, judgment of April 16, 2013, B 14 AS 28/12 R).
One criterion that is crucial for the formation of the comparison area is, among other things, the requirement, which has always been particularly emphasized by the jurisprudence of the Federal Social Court (BSG), that the person in need of assistance must be enabled to maintain their social environment.
A move that would involve abandoning one's social environment cannot, as a rule, be demanded of the person in need of assistance (Federal Social Court [BSG], Judgment of November 7, 2006, B 7b AS 18/06 R). Accordingly, a comparable area must be established within which anyone living there could move freely without losing their familiar surroundings. According to the Federal Social Court, the primary spatial benchmark for comparison is the place of residence of the person in need of assistance, without the municipal constitutional law definition of "municipality" being decisive (Federal Social Court [BSG], Judgment of November 7, 2006, B 7b AS 18/06 R; Higher Social Court of Mecklenburg-Western Pomerania [LSG Mecklenburg-Vorpommern], Judgment of July 11, 2017, L 10 AS 333/16). This means that the formation of larger areas may be necessary, particularly in rural areas, while in larger cities a subdivision into several smaller units is possible. For cities with a population of 75,000 or more (see BSG, ibid.), the city itself can serve as the comparison area. In this context, it is not merely city districts that need to be defined, but sufficiently large areas of residential development that, due to their proximity to one another, their infrastructure, and especially their transport connections, form a homogeneous living and residential area overall (see BSG, ibid.).
When defining comparable areas, the author of a housing cost (KdU) guideline must bear in mind that even a healthy and completely independent recipient of benefits has a right to maintain their current living environment if they are dependent on state benefits. The comparable area must therefore be defined in such a way that, in principle, any move within the area in question is reasonable. In assessing concrete reasonableness, only subjective factors – social environment, health, etc. – are to be considered (LSG Mecklenburg-Vorpommern, as above).
This does not mean that the formation of the comparison area would lead to aspects that are legally significant and must be examined in the context of concrete appropriateness being assessed in the context of abstract appropriateness. "Spatial proximity" does not mean that the old address must be easily accessible after a necessary move; "spatial proximity" refers to the "city center" as the center of the residential area (LSG, Mecklenburg-Vorpommern, judgment of July 11, 2017, as above).
If the municipality of residence does not have its own housing market, it must be examined whether other municipalities or the entire district should be included. In the case of particularly small municipalities without their own representative housing market, it may therefore be necessary to combine larger areas as a benchmark. For example, it is permissible to combine several municipalities in rural areas into "regional areas." In this respect, the Federal Social Court's (BSG) definition of the comparison area also applies to rural districts (State Social Court of Saxony-Anhalt, judgment of January 31, 2018, L 5 AS 201/17).
Thus, the definition of the comparison area is the starting point for determining a rent ceiling, which a basic income support provider must then determine by identifying which areas can be considered homogeneous, whereby the spatial distances between each other are of considerable importance for the criterion of homogeneity (LSG Mecklenburg-Vorpommern, judgment of July 11, 2017, L 10 AS 333/16).
Insofar as the Hessian State Social Court (judgment of February 15, 2013, L 7 AS 78/12) and the Thuringian State Social Court (judgment of July 8, 2015, L 4 AS 718/14) have approved the establishment of a comparison area encompassing the entire district area for large districts located within their respective judicial jurisdictions under the German Social Code, Book II (SGB II), the adjudicating chamber cannot agree with this view in light of the aforementioned case law.
In such large comparison areas, the 3rd Chamber of the Kassel Social Court, in the opinion of the adjudicating chamber, is convinced that, not only under the German Social Code, Book II (SGB II), but also under the German Social Code, Book XII (SGB XII), it is logically necessary to examine in each individual case whether the move required as a cost-reduction measure is reasonable. Such a case-by-case examination, required in every instance, misunderstands the purpose of developing a concept. At this abstract level, it is naturally not addressed whether the aspects of reasonableness inherent in the recipient's personal sphere (avoiding a change of school, health reasons, care and support of relatives that cannot be guaranteed otherwise) render a move impossible. However, the rent ceiling must be determined by defining suitable comparison areas in such a way that the center of life is preserved, even for those who are completely independent. This group of people also has the right to maintain their current living environment if they are dependent on state benefits.
The formation of excessively large comparison areas thus also poses, in the opinion of the adjudicating chamber, the risk of diluting this unconditional entitlement of the person in need of assistance through individual case reviews.
The defendant has defined the entire district of Werra-Meißner as a comparison area. However, contrary to the decisions of the 8th and 11th chambers of the court, the 3rd chamber of the court has ruled that this does not constitute a suitable comparison area within the meaning of the Federal Social Court's (BSG) jurisprudence.
The adjudicating chamber concurs after its own review.
According to the still-applicable North Hesse Regional Plan 2009, the Werra-Meißner district, as defined by the 3rd Chamber, does not constitute a homogeneous living environment in the relevant context, lacking a major urban center and comprising four medium-sized centers. In this respect, the 3rd Chamber of the court rightly points out that a portion of the district, namely the municipalities of Großalmerode and Hessisch Lichtenau, as well as the Kaufunger Wald estate, are assigned to the Kassel planning area. For this area, a comprehensive planning and development concept must be pursued, aiming to ensure and create good and equivalent living, economic, and environmental conditions, particularly in its role as a link between urban and rural areas. The remainder of the district is assigned to the rural area.
Thus, this subdivision with the 3rd chamber already convincingly demonstrates the inhomogeneity of the district as a comparison area.
This inhomogeneity is also evident in the infrastructure of the 3rd Chamber. The road network is still characterized, among other things, by its former location on the border of the former Soviet Union and by the topographical features of the low mountain range landscape of the Hoher Meißner. The latter is also reflected in the public transport network, which, specifically in the 3rd Chamber, lacks a homogeneous structure. The mere fact that neighboring municipalities can be reached by bus does not justify drawing a comparison area (Lower Saxony-Bremen State Social Court, Judgment of April 29, 2014, L 7 AS 330/13).
Even after review by the adjudicating chamber, none of these aspects are taken into account in the comparison area formation carried out by the defendant.
The company Analyse & Konzepte designates the district as a single comparison area without ultimately deriving or justifying this claim. In the Chamber's opinion, an analysis of the infrastructure, and in particular the transport connections, in terms of creating a homogeneous living and residential area is lacking. This remains true even after considering the other statements submitted above.
In addition to the aforementioned points, a number of others argue against the homogeneity of the Werra-Meißner district, at least as a unified comparison area.
Using Witzenhausen as an example, and thus the place of residence of the plaintiff specifically affected here, this becomes clear, for example, with the still largely current city report on Witzenhausen by the Kassel Chamber of Industry and Commerce from 2010.
The majority of employees in Witzenhausen, like almost everywhere in the Werra-Meißner district, work in the service sector. While Witzenhausen's profile in this area is differentiated, it is not particularly distinctive, as a comparison with the district capital, Eschwege, demonstrates. However, Witzenhausen is an exception – and this was also emphasized by the plaintiff's legal representative – due to its role as a university location, specifically the Department of Ecological Agricultural Sciences/Bioregion Werratal of the University of Kassel. The city is home to the Department of Ecological Agricultural Sciences (Department 11) of the University of Kassel, which now has nearly 1,000 students and 23 specializations. The department also includes a greenhouse for tropical crops, which offers public tours. Of particular economic interest, in addition to the primary economic effects (the university as an employer and as a consumer of local services), are the university spin-offs, which have led to a multitude of small businesses with diverse service profiles. These developments are a key focus, especially under the "Bioregion" Werratal label.
According to the aforementioned IKEK of the city of Witzenhausen, final report dated February 2016, this structural feature, which shapes the self-perception and the cityscape, also includes a young family landscape, strongly influenced on the one hand by the internationally oriented university, which places great importance on the compatibility of work or (education) and family, and on the other hand also and especially a distinguished connection to the major urban centers of Kassel and Göttingen, not least due to the good transport links, which in turn are characterized not only by several hundred employees commuting daily to both cities for work.
At the same time, the IKEK (Integrated Rural Development Concept) significantly shapes the dynamics and nature of demand, particularly in the housing market, even though not all of the approximately 1,000 students mentioned above actually live in Witzenhausen. This is true at least in the town center and some districts. According to reports, which have been appearing in the local press and are known to the courts for years, this leads to a situation where affordable housing in Witzenhausen is becoming increasingly scarce and is often reserved for students rather than others—such as recipients of benefits under the German Social Code, Book XII (SGB XII) or the Asylum Seekers' Benefits Act (AsylbLG). This is further exacerbated by the fact that, according to the court, the Witzenhausen housing market, at least near the train station, is increasingly being "discovered" by students from the nearby University of Göttingen for understandable financial reasons.
The same applies insofar as the town of Witzenhausen, due to its excellent transport connections to the major urban centers of Kassel and Göttingen (a significant advantage in an otherwise rural area), has for years been promoting itself as a residential town for employees from these centers. While this doesn't imply a separation from the rest of the district, it does represent an increasingly strong focus on these centers. This focus extends far beyond Witzenhausen's already strong, and increasingly important, position as a shopping destination for its residents.
It is not without reason that the Chamber of Industry and Commerce's city report also states that the functional links have always primarily led to Kassel and Göttingen.
At the same time, the aforementioned transport connection still differs from the connection of large parts of the rest of the Werra-Meißner district.
This applies not only and especially to the municipalities of Meissen, but also to the district town of Eschwege and the towns of Wanfried, Großalmerode and Hessisch Lichtenau, which have been waiting for the A44 for years, and also to the spa town of Bad Sooden-Allendorf, which is at least highlighted as such.
The foregoing statements are not intended to deny the political unity of the Werra-Meißner district that has grown in the meantime, nor its "strong sense of belonging and community" (cf. the aforementioned chronicle of the Werra-Meißner district). However, it cannot be denied that the greater proximity to the regional center of Kassel, perceived and actual in the Hessisch Lichtenau area before the district reform, as described in the aforementioned chronicle, continues to exist, or at least has been revitalized, even after the opening of the border, not least due to improved transport connections to the city and district of Kassel. This is true even if, according to the aforementioned chronicle, the district's founding, with the explicit inclusion of the Hessisch Lichtenau area, was justified by the necessary "structural strengthening of the border region despite the stronger ties to the Kassel area compared to the other central areas of the district.".
The same applies to Witzenhausen. The former district town of Witzenhausen was also located on the northern edge of the former Witzenhausen district and, according to the aforementioned chronicle, already had a significantly closer connection to the major urban center of Kassel and even more so to Göttingen than to the former Eschwege district, even across the immediately adjacent Lower Saxon districts. Similarly, the Großalmerode area, with Hessisch Lichtenau, located on the western edge, traditionally had strong ties to the Kassel region.
Ultimately, with the end of German division as a contributing factor in the establishment of the district and the subsequent expiration of border zone funding, but also with unavoidable demographic problems, structures have once again broken down, which have at least partially revived the local orientations even after the aforementioned regional plan.
That is, it is clear to the Chamber's conviction that the formation of a single rural comparison area in the Werra-Meißner district does not even begin to do justice to the actual structures in this district – at least not to the extent required by law under the German Social Code, Book II and Book XII.
There is no question of a coherent infrastructure and, in particular, of transport connections, including in the aforementioned sense of a homogeneous living and residential area.
Even the different housing market types created according to the concept at issue here ultimately make this clear. As the Third Chamber rightly points out, they are only partially interconnected regionally.
The court's task in the context of this dispute is solely to point out these differences, insofar as they may be relevant to the dispute, and not to evaluate them, certainly not politically. Therefore, the chamber does not see itself as a facilitator for a "North Hesse Regional Association" or a "North Hesse Regional Circle," nor would it even question the Werra-Meißner habitat, which, given its knowledge of this matter, at least through its presiding judge, would certainly be the last thing it would do.
In addition to the overall lack of a homogeneous living and residential environment, it can also be pointed to the differing structures, not only well-known to the courts, compared to the aforementioned towns and municipalities, even in the immediate vicinity of the Meißner mountain itself. Here, infrastructure is increasingly crumbling for various reasons, and basic retail services or medical care, for example, are rarely guaranteed locally. This fundamental problem is already present in most districts of the aforementioned towns and makes relocation, particularly to rural areas, extremely problematic for both those receiving full disability benefits under the German Social Code, Book XII (SGB XII), and elderly recipients of basic income support under the SGB XII, who are often also in poor health. The establishment of health centers, which are regularly reported in the local press in the Werra-Meißner district, does nothing to change this situation. Ultimately, it was born out of necessity, merely an attempt to continue to guarantee the increasingly difficult general practitioner care in the Werra-Meißner district, due in part to unfavorable demographic developments.
Reference can also be made to the town of Wanfried, which on the one hand – seemingly successfully, at least in the short term – attempts to counter its vacancy of dilapidated half-timbered houses in need of renovation, resulting in a desolate townscape and a declining population – with nationwide publicity – for example by "settling" Dutch or South Hessians, but on the other hand, this also exemplifies what a large number of municipalities in the Werra-Meißner district have to "struggle" with, without having corresponding options open to them outside of a city despite numerous attempts.
Part 2 of the judgment of the Social Court of Kassel (Case No.: S 12 SO 112/16) can be found here.
