VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
District of Göttingen, represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 39th Chamber of the Social Court of Hildesheim, by judgment without oral proceedings on October 24, 2018, through the presiding judge, Judge xxx of the Social Court, and the lay judges xxx and xxx, has ruled as follows:
1. The defendant is ordered, by amending the decision of December 5, 2016, as amended by the decision of August 22, 2017, as amended by the appeal decision of October 10, 2017, to grant the plaintiff additional accommodation costs in the amount of EUR 43.40 per month for the period from December 1, 2016, to May 31, 2017.
2. The defendant shall bear the necessary extrajudicial costs of the plaintiffs.
3. The appeal is admitted.
Facts
The parties are in dispute over the appropriateness of the costs of accommodation and heating for the benefit period from December 1, 2016 to May 31, 2017.
The plaintiff is currently receiving benefits under the Second Book of the German Social Code (SGB II) and has lived for years in a 62 sq m apartment in [address redacted] in Göttingen. Her monthly gross rent (excluding utilities) is €514.65, and she paid a monthly advance of €88.35 for heating costs during the benefit period.
By decision dated December 5, 2016, the defendant granted the plaintiff benefits under the German Social Code (SGB) for the benefit period from December 1, 2016 to May 31, 2017. In doing so, the defendant took into account housing costs of EUR 392.00 per month and heating costs of EUR 71.25 for the month of January 2015.
The plaintiff, through her extrajudicial representative, lodged an objection to this on December 19, 2014.
By decision dated December 20, 2016, the defendant amended the benefit award, whereby the costs of accommodation were approved unchanged.
On July 26, 2017, the legal representative submitted an application pursuant to Section 44 of Book Ten of the German Social Code (SGB X) regarding all decisions issued for the benefit period. He pointed out that the benefits granted pursuant to Section 22 of Book Two of the German Social Code (SGB II) should be reviewed.
By decision dated August 22, 2017, the defendant rejected the application. It could not be established that the law had been misapplied, and no new facts had been presented.
The plaintiff filed an objection to this decision on August 24, 2017. The defendant was granting housing costs based on figures determined by the company Analyse und Konzepte. These figures, she argued, did not meet the requirements of the Federal Social Court regarding a "conclusive concept." Instead, she asserted, the figures from the table in Section 12 of the Housing Benefit Act (WoGG), plus a 10% safety margin, should be applied.
By decision dated October 10, 2017, the defendant rejected the appeal. For a one-person household with a living space of 50 square meters in the city of Göttingen, a gross rent excluding utilities of €392.00 per month was deemed appropriate based on the sound concept developed by the company "Analyse und Konzepte". Therefore, the housing costs were only to be covered up to this amount.
The plaintiff filed suit with the Hildesheim Social Court on October 23, 2017. She argues that the defendant is obligated to pay her actual rent of €514.65. She contends that the expert opinion prepared by the company "Analyse und Konzepte" does not meet the requirements of the Federal Social Court for a so-called "conclusive concept," and therefore fails to provide the defendant with the necessary determination of reasonable housing costs as required by Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). Furthermore, she asserts that the data underlying the concept dates back to 2012 and is therefore outdated. For further details, please refer to pages 1 et seq. and 64 et seq. of the court file.
The plaintiff requests that
to amend the decision of December 5, 2016, as amended by the decision of August 22, 2017, as amended by the appeal decision of October 10, 2017, for the period from December 1, 2016, to May 31, 2017, and to order the defendant to grant the plaintiff further accommodation costs in the legally prescribed amount.
The defendant requests that
to dismiss the lawsuit.
He bases his argument on the expert opinion he commissioned from the company "Analyse und Konzepte". This expert opinion, he argues, constitutes a coherent concept within the meaning of the Federal Social Court's (BSG) jurisprudence. For details of his submissions, reference is made to pages 31 et seq. of the court file.
The defendant requests, as a precautionary measure,
to allow the appeal.
For further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative file, which were submitted to the court and formed the basis of the decision.
REASONS FOR DECISION
The lawsuit is admissible and well-founded.
The defendant's decision of December 5, 2016, as amended by the decision of August 22, 2017, and as amended by the appeal decision of October 10, 2017, is unlawful to the extent stated and infringes the plaintiff's rights in this respect.
I. The plaintiff is entitled to higher benefits during the period in dispute pursuant to Sections 7, 19, 20, 22 of the Second Book of the Social Code (SGB II).
She is entitled to a total of EUR 43.40 per month in additional costs for accommodation and heating.
1.) The defendant has failed to provide the court with a comprehensible explanation of what constitutes a regionally appropriate, abstract rent for residential property, which is why the court does not consider the limit of EUR 392.00 determined by the defendant to be relevant.
2.) Housing costs are covered in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), up to the amount of the actual expenses, provided they are reasonable. If the housing expenses exceed what is reasonable given the specific circumstances of the individual case, they are to be considered as part of the recipient's needs in accordance with Section 22 Paragraph 1 Sentence 2 of the SGB II for as long as it is not possible or reasonable for the recipient to reduce the expenses by moving, subletting, or otherwise, but generally for no longer than six months. The assessment of reasonableness limits the amount of reimbursable costs (see Federal Social Court (BSG), Judgment of September 22, 2009, Case No. B 4 AS 18/09 R). "Reasonableness" is an indeterminate legal term that is subject to full judicial review (see Federal Social Court (BSG), Judgment of November 7, 2006, Case No. B 7b AS 10/06 R). According to the established case law of the Federal Social Court (see BSG, judgment of November 7, 2006 – B 7b AS 18/06 R; BSG, judgment of February 19, 2009 – B 4 AS 30/08 R; BSG, judgment of September 22, 2009 – B 4 AS 18/09 R), the determination of appropriateness must be carried out in several stages:
3.) First, the abstractly appropriate apartment size and the relevant comparison area must be determined. In a further step, it must be ascertained how much must be spent on the housing market of the comparison area for an apartment of basic standard. The aim of this determination is the price per square meter for apartments of basic standard, which, according to the product theory, is to be multiplied by the appropriate square footage. The result is the regionally appropriate rent (cf. Federal Social Court, judgment of September 22, 2009, — B 4 AS 18/09 R).
a) The defendant correctly assumed a reasonable living space limit of 50 square meters for a one-person household. This corresponds to the abstractly reasonable apartment size stipulated in the guidelines on social housing promotion in Lower Saxony (Housing Promotion Regulations -WFB-; see section B.11. Reasonable Living Spaces).
b) However, the comparison area consisting of the city of Göttingen and the municipalities of Bovenden and Rosdorf has been incorrectly formed.
In order to determine what expenses are payable for an apartment of "basic standard" size in the lower segment of the housing market, the relevant comparison area within which the rent level is determined must be established, according to the case law of the Federal Social Court (see BSG, judgment of 19 February 2009 – B 4 AS 30/08 R).
According to the jurisprudence of the Federal Social Court, the relevant area for comparison is generally defined by the place of residence of the person in need of assistance (see Federal Social Court, judgment of November 7, 2006 – B 7b AS 10/06 R, Federal Social Court, judgment of November 7, 2006 – B 7b AS 18/06 R). However, this does not necessarily have to be based on the municipal constitutional law definition of "municipality" (see Federal Social Court, ibid.). 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. In cities with a population of 75,000 or more (see Federal Social Court, ibid.), the city area itself can constitute the relevant area for comparison. In this context, not merely city districts, but sufficiently large areas of residential development must be defined that, due to their proximity to one another, their infrastructure, and especially their transport connections, form a homogeneous living and residential area overall (see Federal Social Court, ibid.).
For the area of the city of Göttingen and the municipalities of Bovenden and Rosdorf, it can be stated that these do not form a homogeneous living and residential area overall (see dd)) due to a comparable infrastructure (see aa)), nor their transport connections (see bb)), nor for 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 on 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 expert report by the company Analyse und Konzepte correctly assumes that the city of Göttingen is 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 urban centers are in the cities of Braunschweig, Cello, Göttingen, Hannover, Hildesheim, Lüneburg, Oldenburg (Oldenburg), Osnabrück, Salzgitter, Wilhelmshaven and Wolfsburg."
In contrast, Bovenden and Rosdorf are neither major centers nor intermediate centers (see LROP, point 2.2 para. 5), but are also classified by the defendant itself only as basic centers (see Regional Spatial Planning Program of the Göttingen District (RROP), page 3).
In the LROP, under point 2.2 paragraphs 1 to 3, the tasks of the upper, middle and lower centers are defined as follows:
"(1) Central places are major centers, intermediate centers, and basic centers. The functions of major, 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 major and intermediate central areas, planning and measures relating to settlement, open space, supply, and infrastructure are to be coordinated with each other. The major centers and intermediate centers are definitively defined in the state spatial planning program. In individual cases, intermediate centers are assigned partial functions of major 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 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 central place facilities and services are to be aligned with the demand of the population to be served and the economy in the area of integration. The performance of the central places is to be secured and developed in accordance with the respective designation. The following are to be secured and developed:
- in major centers, central place facilities." and services for specialized, higher needs
; in intermediate centers, central facilities and services for higher 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 also perform the intermediate and basic central supply tasks, intermediate centers also those of basic central supply. […]
(2) Göttingen fulfills its role as a major center and, in addition to the intermediate and basic central supply functions, provides central facilities and services for specialized higher needs, while the basic centers Bovenden and Rosdorf in turn have facilities and services for general daily basic needs as well as facilities and services for local supply.
The existing infrastructure demonstrates the differences between the city of Göttingen and the municipalities of Bovenden and Rosdorf as defined in the spatial planning regulations:
- Göttingen's interregional transport infrastructure includes connections to the ICE high-speed rail network of Deutsche Bahn as well as to the interregional and regional rail networks. Bovenden and Rosdorf have no such connections, not even to regional rail services.
- Göttingen's regional transport infrastructure includes a connection to the federal motorway network via the A7, which runs through the city. This connection is provided by two on- and off-ramps. Bovenden has no direct motorway access, while Rosdorf has an incomplete on- and off-ramp that is not officially 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.hannover.ihk.de/ihk-themen/konjunktur-statistik/aktuell/liste-der-100-groessten-unternehmen-im-bereich-der-ihk-hannover.html), eight companies are located in the city of Göttingen alone: the University Medical Center Göttingen (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 has numerous scientific institutions, including the Georg-August University, the Private University of Applied Sciences, the University of Applied Sciences and Arts (HAVVK), and various institutions of the Max Planck Research Network, while such institutions do not exist in Bovenden and Rosdorf.
- With five grammar schools (plus an evening grammar school), three comprehensive schools, and two secondary modern schools, as well as its special needs schools, the city of Göttingen ensures educational provision for the residents of Bovenden and Rosdorf, which themselves have a significantly limited range 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 of the city of Göttingen has in common that it is used by the residents of all municipalities in the district of Göttingen. This use is not limited to the residents of the municipalities of Bovenden and Rosdorf, which border directly on Göttingen, nor can any structural data indicate that the infrastructure of the city of Göttingen is used to a greater extent by the residents of the municipalities 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 RROP to be deepened) interconnections between the city of Göttingen and the municipalities bordering it, these are fundamental interconnections and in no case regionally specific interconnections of a major center with the municipalities directly bordering it.
(4) If the defendant refers to the fact that, according to its RROP, there are “to a certain extent mutual relief and supplementary functions” between the city of Göttingen and the municipalities of Bovenden and Rosdorf, it is not clear what these functions are supposed to entail in view of the infrastructure gap between the two areas.
All the infrastructure mentioned by the defendant in the municipalities of Bovenden and Rosdorf (kindergartens, primary schools, general practitioner practices, shopping facilities) is not infrastructure that contributes to mutual relief and supplementation, but rather ensures basic services in the municipalities of Bovenden and Rosdorf.
If the defendant, referring to the website of the municipality of Rosdorf, states that the shopping facilities there are "also gladly used by residents of Göttingen", this is likely to be a positive highlighting of the advantages of the municipality of Rosdorf formulated for potential customers, which is already evident from the fact that the municipality of Rosdorf advertises these shopping facilities in this article in particular with reference to "free parking".
{5) Regardless of the classification of the city of Göttingen and the municipalities of Bovenden and Rosdorf into the categories of spatial planning, 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). 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 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 comparison area.
The court does not accept the defendant's argument regarding the transport connections between the municipalities of Bovenden and Rosdorf and the city of Göttingen. He refers to the existing connections between Bovenden and Rosdorf and the city of Göttingen via various means of transport and presents tables showing travel times by bus, car, and bicycle from Bovenden and Rosdorf, comparing these with travel times by the same means of transport from the Göttingen districts of Elliehausen and Nikolausberg, which lie on the city's border. The defendant then concludes that travel times within Göttingen to the centrally located market square are comparable to travel times from Bovenden and/or Rosdorf. The court does not accept this argument. The defendant focuses solely on the namesake towns of Bovenden and Rosdorf, the municipalities bordering Göttingen, and states himself that these towns comprise 48% and 56%, respectively, of the population of their respective municipalities. This means... In the comparison made by the defendant regarding transport routes and their duration, 52% of the population of Bovenden and 44% of the population of Rosdorf are disregarded. This portion of the population of the respective municipalities of Bovenden and Rosdorf, which the defendant failed to consider, lives geographically farther from the city of Göttingen than the residents of the core towns of Bovenden and Rosdorf themselves. Only these core towns border the city of Göttingen directly to the north (Bovenden) and south (Rosdorf), respectively. The comparison of travel times using the aforementioned means of transport from the localities belonging to the municipalities of Bovenden and Rosdorf, submitted at the court's request, yields figures that clearly contradict any transport connection between the entire municipal area and the city of Göttingen. The defendant himself states that the southern localities of the municipality of Rosdorf are already oriented towards the city of Hann. Münden and the municipalities of Friedland and Dransfeld in terms of transport.
The defendant's argument that the municipalities of Bovenden and Rosdorf are already integrated into the Göttingen public transport network (city bus network) applies only to their respective namesake towns of Bovenden and Rosdorf, and thus only to approximately 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 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 —, juris).
cc) For other reasons as well, the city of Göttingen and the municipalities of Bovenden and Rosdorf do not form a homogeneous living and residential area.
If the report by the company Analyse und Konzepte justifies a homogeneous living and residential area by stating that the municipalities of Bovenden and Rosdorf "have a similar economic importance for Göttingen as commuter towns" (see page 11 of the report by the company Analyse und Konzepte), this is correct.
Contrary to the plaintiff's assertions, the Chamber is of the opinion that comparable economic circumstances are also quite suitable, as one of several criteria, to establish an overall homogeneous living and residential environment.
However, in the present case, the municipalities of Bovenden and Rosdorf only have a similar economic significance with regard to the city of Göttingen, i.e., Bovenden and Rosdorf are comparable in their importance to each other in terms of their own economic strength and their respective economic interrelationships with 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, www.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: [source missing]). Statistical Information System of the 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 from 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) are those who commute to Göttingen from the municipalities of Bovenden and Rosdorf 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 is just 8.9%.
Against this background, the economic importance of the municipalities of Bovenden and Rosdorf due to their commuter connections to the city of Göttingen is to be considered minor.
(2) Furthermore, the economic importance of the city of Göttingen, measured against the same standards established by the company Analyse und Konzepte in its report for the municipalities of Bovenden and Rosdorf, is so small that it is not measurable.
The 37,712 people who commute into the city of 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. Reliable figures are not available for the number of people commuting from Göttingen to the municipalities of Bovenden and Rosdorf, as 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) With regard to other economic structures as well, the municipalities of Bovenden and Rosdorf do not stand up to comparison with the city of Göttingen.
In the municipality of 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 differing 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 expert opinion of Analyse und Konzepte and raises considerable doubts about the accuracy of the definition of the comparison area.
4.) The Chamber is also convinced that the defendant's determination of the appropriate rent per square meter for a reasonable housing standard in the apartment size category up to 50 m² is not based on a coherent concept within the meaning of the established case law of the Federal Social Court. The Federal Social Court defines a coherent concept as a planned approach by the basic income support provider, involving a systematic investigation and evaluation of 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 (see Federal Social Court, Judgment of September 22, 2009 — B 4 AS 18/09 R —).
According to the jurisprudence of the Federal Social Court, the basic income support provider must develop a coherent concept which, according to the ruling of the Federal Social Court (ibid.), must meet the following criteria:
- Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization)
- A comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to apartment standard, gross and net rent.<Vergleichbarkeit> , Differentiation according to apartment size,
- Information about the observation period,
- Determining the method of data collection (sources of information, e.g. rent index),
- Representativeness of the scope of the collected data,
- Validity of the data collection,
- Compliance with recognized mathematical and statistical principles of data analysis
and - Information about the conclusions drawn (e.g., upper range or capping limit).
The 39th Chamber concurs with and adopts the reasoning of the 26th Chamber of the Hildesheim Social Court in its judgment of April 5, 2017 (Case No. S 26 AS 504/15). The judgment states:
"The defendant's concept fails to meet the minimum requirements for a coherent concept in essential points. The rent data collection carried out based on the examination of advertised and existing rents is not based on a comprehensible definition of the object of observation, the representativeness of the scope and the capping limit are not verifiable, so that it cannot be conclusively assessed whether the actual costs for basic housing standards are reflected.".
A clear deficiency in the survey is that the standard of the respective apartments (both existing and available) was not assessed as high, average, or basic, nor was any data collected and assigned for this purpose. The court is convinced that it is insufficient to determine the basic standard indirectly solely via the price per square meter (see judgments of the Lower Saxony-Bremen State Social Court of April 3, 2014 – L 7 AS 786/11 – and of April 29, 2014 – L 7 AS 768/11 –). According to the judgment of the Federal Social Court of August 20, 2009 – B 14 AS 41/18 R – (para. 17), all factors that determine the rent must be included in the evaluation, which generally includes at least the standard, size, and amenities of the apartment.
Apartments in desirable residential areas (e.g., Göttingen city center) can be significantly more expensive than well-equipped apartments in less sought-after areas (e.g., a rural part of Bovenden), despite a lower standard. Only when it is ensured that the collected data accurately reflects the housing market, including representative apartments of all standards, can one speak of a comprehensive survey of the entire housing market. The upper limit for accommodations considered adequate under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), depends not on the rent, but primarily on the type of amenities, the character, and the location of the accommodation.
The lack of differentiation in housing standards leads the court to believe that this results in irreparable problems when setting the rent control limit. An accurate representation of apartments of basic standards requires that the entire housing market be surveyed. A further prerequisite is a balanced mix of apartments of basic, average, and high standards in the data sets. This point cannot be clarified in the present case because the defendant did not consistently and thoroughly examine the standard and features of the apartments in question. Thus, a key price-determining standard was wrongly omitted from the A&K report.
In this context, the court points out that, according to the case law of the Federal Social Court (BSG), a conclusive concept cannot be replaced by a counter-test. The mere fact that it was possible to rent living space at the value deemed appropriate by the defendant does not mean that the value was correctly determined (see judgment of December 17, 2009 – B 4 AS 50/09 R)
5.) Another significant deficiency at the level of rent data collection is that the company Analyse und Konzepte does not provide any information in its report on the relationship between the existing and advertised rents collected from large rental companies and those of smaller, private landlords.
The report by the company Analyse und Konzepte states that the larger landlords and property management companies were first identified and contacted, and all were persuaded to participate. Consequently, all apartments and their rents belonging to the major housing companies must have been included in the report's calculations. The report itself contains no indication of any differentiation or listing suggesting otherwise.
For the area of the city of Göttingen, the housing stock of Städtische Wohnungsbau Göttingen GmbH (4,570 apartments, reference date: December 31, 2012, source: Annual report of Städtische Wohnungsbau GmbH for the year 2012), Volksheimstätte Göttingen (2,542 apartments, reference date: December 31, 2012, source: Annual report of Volksheimstätte for the year 2015, page 18) and Wohnungsgenossenschaft Göttingen (4,503 apartments, source: Annual report of Wohnungsgenossenschaft for the year 2012) were taken into account.
This means that 11,615 apartments have been included in the calculations of the company Analyse und Konzepte based on feedback from these three housing companies.
Overall, the company Analyse und Konzepte assumes in its report that the relevant rental housing stock in location I (Göttingen, Bovenden, Rosdorf) comprises 33,900 apartments. According to the report, a total of 14,882 rental values were considered in location I (Göttingen, Bovenden, Rosdorf) (see Table 9 on page 20 of the report).
Therefore, the data basis for calculating the reasonable costs of accommodation is determined to 78.04% by the reported rental values of Städtische Wohnungsbau Göttingen GmbH, Volksheimstätte Göttingen and Wohnungsgenossenschaft Göttingen.
The average net rent (excluding utilities) at Städtische Wohnungsbau GmbH in 2012 was €4.81/m², while the average gross rent (excluding utilities) was an additional €2.40/m², totaling €7.21/m²; the average net rent (excluding utilities) at Volksheimstätte in 2012 was €4.81/m² (gross rent excluding utilities €6.95/m²), and at the housing cooperative it was €5.22/m² (sources: annual report of Städtische Wohnungsbau GmbH for 2012, annual report of Volksheimstätte for 2015, annual report of the housing cooperative for 2012).
The study “Costs of Accommodation and Housing Markets – Effects of Regulations on the Assumption of Accommodation Costs on Transfer Recipients and Municipalities”, cited by the company Analyse und Konzepte itself, is part of the “General Departmental Research” program of the Federal Ministry of Transport, Building and Urban Development (BMVBS) and the Federal Institute for Research on Building, Urban Affairs and Spatial Development (BBSR) within the Federal Office for Building and Regional Planning (BBR) and dates from 2009. It states (see page 16 onwards):
Municipal housing companies play a central role in the provision of affordable housing. They provide 2.1 million units, while the public sector as a whole provides approximately 2.3 million apartments, representing 10% of all rental housing. […] Municipal and other public housing stocks have decreased in recent years due to a number of sales to investment companies. Against the backdrop of such transactions, particularly between 2004 and 2006, a commission of the German Association for Housing, Urban Development and Spatial Planning, focusing on the “economization of the housing and real estate industry,” highlighted the importance of these properties for providing housing to low-income and socially disadvantaged groups and recommended carefully weighing the advantages and disadvantages of all available alternatives before any sale.
Another significant group of providers are housing cooperatives, where a substantial proportion of the approximately 2.1 million apartments can be classified as affordable housing. Only a small percentage of these apartments are social housing units. In practice, they fulfill an important housing function for households receiving social assistance and other low-income households, even though housing cooperatives now often operate in the mid-price segment.
Private landlords with small portfolios own over 60% of all rental apartments, representing by far the largest share of the total supply. Their portfolios are highly heterogeneous in terms of condition, layout, and rent, and include a large selection suitable for low-income earners
As a result, it must therefore be noted that, contrary to the nationwide ratio of 60% rental by small landlords to 40% rental by professional rental companies, in the case of location I (Göttingen, Bovenden, Rosdorf) 78% of the results were based on those large rental companies that play a central role in the provision of affordable housing.
6.) In the present case, it is irrelevant whether the index update carried out by the company Analyse & Konzepte in November 2014 resulted in the upper limits used by the defendant to determine appropriateness being outdated or having the necessary up-to-dateness.
II. The defendant shall additionally cover the plaintiff's expenses for accommodation costs in the amount of EUR 85.40 per month.
The court applies the jurisprudence of the Federal Social Court, according to which, in the absence of other means of ascertaining the amount, the right-hand column of the table in Section 12 of the Housing Benefit Act may exceptionally be used. In accordance with the established jurisprudence of the Federal Social Court (see BSG, judgment of September 10, 2013 – B 4 AS 4/13 R juris), the court considers it appropriate to grant a surcharge of 10% due to the lump-sum payment.
This safety surcharge must also be added to the table values of Section 12 of the Housing Benefit Act (WoGG) applicable from 1 January 2016 (as amended by the Act to Reform Housing Benefit Law and to Amend the Housing Promotion Act – WoGRefG – of 2 October 2015, Federal Law Gazette I, p. 1610) (see Lower Saxony-Bremen State Social Court, decision of 2 February 2017 — L 11 AS 983/16 B ER —, juris).
For a single-person household in Göttingen (rent level IV), the maximum eligible costs amount to EUR 477.40 (EUR 434.00 plus a 10% surcharge of EUR 43.40). The plaintiff is therefore entitled to the claimed difference of EUR 85.40 per month.
IV. The decision on costs is based on § 193 SGG.
V. 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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