VERDICT
In the legal dispute
xxx,
– Plaintiff and respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District, Legal Department, represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant and appellant –
The 6th Senate of the State Social Court of Lower Saxony-Bremen, in the oral proceedings of April 2, 2019 in Celle, with Judges xxx, xxx and xxx and the lay judges xxx and xxx presiding, has ruled as follows:
The defendant's appeals against the judgments of the Hildesheim Social Court of 10 May 2017 are dismissed.
The defendant must reimburse the plaintiff for the extrajudicial costs, including those of the appeal proceedings.
The appeal is not admitted.
FACTS
The amount of benefits for housing costs (KdU) in 2016 is in dispute.
The plaintiff, born in 1960, has been receiving basic income support for job seekers since 2007. Since 1989, she has lived in an apartment of slightly more than 53 m² in Göttingen, for which, following a rent increase on December 1, 2013, she paid a monthly gross rent of €458.01 (notification from Göttinger Hausverwaltung GmbH dated September 17, 2013). The amount of reasonable housing costs has been disputed since the start of her benefit payments. Until the end of 2014, the defendant based his calculations on the standard rate stipulated in the Housing Benefit Act (WoGG) plus a 10% safety margin, most recently in a decision dated June 20, 2014, totaling €394. From January 1, 2015, he approved €392 as appropriate housing costs based on the "Index Update in the Final Report November 2014" of the "Conclusive Concept for Determining the Limits of Reasonable Housing Costs in the Göttingen District 2012 (Final Report as of March 2013)" by Analyse & Konzepte Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH – Hamburg (hereinafter: A&K). Due to the judgments of the Hildesheim Social Court (SG) of May 10, 2017, under file numbers S 39 AS 651 and 884/15, and following the withdrawal of the appeals before the adjudicating panel under file numbers L 6 AS 465 and 466/17, the defendant again considered the standard rate of the Housing Benefit Act (WoGG) plus the safety margin for the year 2015.
For the months of January to June 2016, the defendant, by decision dated December 15, 2015, granted the plaintiff benefits for housing and utilities in the amount of €392, plus the fixed heating cost prepayment for January in the amount of €67. The plaintiff's objection was rejected, citing the A&K expert opinion (decision on the objection dated January 29, 2016). After the prepayment amounts for the subsequent months were set in the 2015 annual statement of consumption, the defendant, by decision dated February 5, 2016, granted benefits for heating costs in this amount for the months from February 2016 onwards (amended decision dated February 5, 2016). The plaintiff filed a lawsuit against this decision on February 10, 2016, with the Hildesheim Social Court (case number S 39 AS 187/16).
By decision dated May 12, 2016, the defendant granted benefits for the months of July to December 2016 in the same amount and rejected the objection (decision on the objection dated June 30, 2016). The plaintiff also filed a lawsuit against this decision (on July 20, 2016) before the Social Court of Hildesheim (case no. S 39 AS 999/16).
The Social Court (SG) amended the contested decisions and ordered the defendant to grant the plaintiff additional housing costs in the amount of €66.01 per month. The court reasoned that the defendant had failed to provide a comprehensible explanation of the regionally appropriate rent. Determining appropriateness requires a multi-stage process. First, the appropriate apartment size and the relevant comparison area must be established. Second, the cost of a basic apartment on the market within the comparison area must be determined. The comparison area, consisting of the city of Göttingen and the neighboring municipalities of Bovenden and Rosdorf, was incorrectly defined. It does not constitute a homogeneous living and residential area, neither due to comparable infrastructure nor transport connections. Furthermore, the defendant's determination of the appropriate price per square meter was not based on a coherent concept as defined by the jurisprudence of the Federal Social Court (BSG). The rent data collection lacks a comprehensible definition of the subject of observation. Its representativeness and the capping limit are not verifiable. The report fails to provide any information on the ratio of existing and advertised rents collected from large rental companies to those collected from smaller private landlords. The report relies 78% on the results of large rental companies, which play a central role in providing affordable housing. However, nationwide, 60% of rentals are handled by small landlords and only 40% by professional rental companies. In the absence of other sources of information, the table values of the German Housing Benefit Act (WoGG) plus a 10% surcharge must be used. For a one-person household in Göttingen (rent level IV), the maximum eligible values amount to €477.40 (€434 – Section 12 WoGG – plus a 10% surcharge). This results in a claim by the plaintiff for the gross rent excluding utilities in the amount of €66.01.
The defendant filed an appeal on June 16, 2017, against the decisions served on May 19, 2017. The Senate consolidated the appeals for joint hearing and decision (order of February 19, 2019). The defendant defends the Social Court's (SG) criticism of the comparative area and submitted a sample calculation using a comparative area limited to the city of Göttingen. According to this calculation, the maximum rent for a one-person household is €402.50. The defendant also argues that the other criticisms raised by the Social Court are unfounded: The Social Court disregarded the freedom of methodology. According to the applied method, the distinction between basic and average standard housing is not the decisive criterion for determining the limit of reasonableness. The sole criterion is the availability of housing. After excluding housing of the most basic standard, every remaining apartment is at least a basic standard apartment. The claim of a significant deficiency, based on the lack of information regarding the relationship between existing and advertised rents collected from large rental companies and those collected from smaller private landlords, is unfounded. Weighting is unnecessary because the distribution of data from large and small landlords does not differ significantly. Rent data was collected from both large and small landlords and supplemented by an analysis of existing data from benefit recipients, adjusted for previously collected data. The analysis of the rent distribution shows no differences in rent levels between the collected rent data from large landlords, small landlords, and benefit recipients. Since the rent data does not differ, weighting is unnecessary and, moreover, not possible given the available data. Finally, the Social Court fails to consider the iterative process of determining reasonable rent limits. These limits are continuously increased until the supply of available rents is sufficient. This mitigates potential inaccuracies in the survey of existing tenants. The presented concept is, overall, coherent in accordance with the jurisprudence of the Federal Social Court (BSG).
The defendant requests that
to overturn the judgments of the Social Court of Hildesheim of 10 May 2017 and to dismiss the actions, or alternatively, to pursue the requests for evidence from the written submissions of 13 July 2017 – S 15, 23, 25, 27 and 28 – and of 22 March 2019.
The plaintiff defends the contested decisions and requests that
to reject the defendant's appeal against the judgments of the Social Court of Hildesheim of 10 May 2017.
At the request of the adjudicating Senate, A&K supplemented its statements of December 8, 2017, February 19, July 16 (in another proceeding pending before the adjudicating Senate under file number L 6 AS 215/17) and December 13, 2018, as well as in the oral hearing, with the following information:
The rental data, collected for a single comparison area within the city of Göttingen, were analyzed using the same methodology as outlined in the concept. Substandard apartments were excluded from the survey. The rental values were adjusted to remove incomplete, implausible, and irrelevant data. All apartments surveyed were located outside of residential care facilities, had a standard above substandard, and belonged to one of the examined apartment size categories. Rental values for the city of Göttingen were collected from all landlord groups. First, institutional landlords were identified and contacted. Second, a sample of private landlords was drawn from property tax data and surveyed in writing. Third, the data was supplemented by analyzing a job center dataset. Only rental values that could not have been captured in the landlord surveys were included. Assuming that these rental values predominantly belong to private landlords, the ratio is 76% large landlords to 24% small landlords. A total of 14,568 rental values were collected before the capping of extreme values. According to the 2011 census, there were 48,907 households in rented apartments in the city of Göttingen. The housing stock was distributed as follows: 42% by institutional landlords and 58% by private landlords. The number of households receiving social assistance in June 2012 was 8,362. The response rate from the landlord groups was as follows: 11,136 large landlords (76.4%), 556 small landlords (3.8%), supplemented by 2,876 data points from the Job Center (19.7%). There are no concerns regarding the representativeness of the sample: The sample was drawn from the address data of the property tax records. This data includes all private property owners in the city of Göttingen. All private property owners had an equal chance of being included in the sample. No districts or other sub-areas of the city of Göttingen were excluded or favored in the sampling process. Since the sample was designed as a purely random sample and neither specific landlords nor individual districts or sub-areas were excluded or favored, it can be assumed that the sample is free of bias. Of the 14,568 fully valid rental values collected for the city of Göttingen, postal code information is available for 4,925. This information shows the distribution of rental values across the city's various regions. There is no risk of distortion due to circular reasoning resulting from the inclusion of the SGB II (Social Code, Book II) data set. This risk would require that the rental structure of benefit units differs fundamentally from the structure of the rest of the market. This is not the case. Circular reasoning could only occur if the rental data of benefit units significantly exceeded the actual proportion of benefit units among all tenant households. This is also not the case. Furthermore, the job center data set can be excluded from the calculation.
In addition to the case files and the defendant's benefit files, the Senate also had before it the methodological report: "Guidelines for reasonable housing costs according to SGB II and SGB XII in the Göttingen district – 'Basic Income Support-relevant rent index 2017'" – by the Institute for Housing and the Environment (IWU), Darmstadt, dated November 9, 2017. These documents were the subject of the oral hearing and deliberations. For details of the facts and the further submissions of the parties, reference is made to the contents of the files.
REASONS FOR DECISION
The defendant's appeals – admissible by virtue of the Social Court's admission pursuant to Sections 143 et seq. of the Social Courts Act (SGG) – were filed in due form and time and are therefore admissible in their entirety. However, they are unsuccessful on the merits. The Social Court correctly ordered the defendant to pay housing and utilities benefits in the amount of the actual expenses.
Despite the wording of the operative part of the challenged judgments, which states that the defendant is "obligated... to grant further accommodation costs in the amount of EUR 66.01 per month," these are not judgments ordering performance, but rather judgments ordering the defendant to provide benefits. The plaintiff's claim, already made during the oral proceedings before the Social Court, was for benefits up to the table value of the Housing Benefit Act (WoGG) plus 10%, totaling EUR 66.01 (§ 123 of the Social Court Act (SGG)). Therefore, it is a valid action for annulment and performance (§ 54 para. 4 SGG) and not an (indefinite) action for performance (§ 54 para. 1 SGG), which would be inadmissible (e.g., Handbook of the Social Court Act (Hdb SGG) – Udsching, 7th ed. 2016, IV, para. 16; Federal Social Court (BSG), SozR 4-4200 § 22 No. 91). With this clarification, the defendant's appeals are to be dismissed.
The plaintiff, who meets the general eligibility requirements for basic income support for job seekers, has permissibly limited her claims to the costs of accommodation and heating (established case law since BSGE 97, 217). The heating costs are not in dispute; the defendant provides benefits in the amount of the required advance payments.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book Two (SGB II) – Basic Income Support for Job Seekers – needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are reasonable. In its session of January 30, 2019, the 14th Senate of the Federal Social Court (BSG) summarized and clarified the previous case law on this need, taking into account legal developments (Session Report No. 2/19 on the Preview of Sessions No. 2/19):
1. The determination of the limit for abstractly reasonable housing costs (KdU), consisting of net rent and operating costs (excluding utilities), for an apartment of reasonable size and standard, must be carried out according to a "coherent concept" within the relevant local comparison area . The comparison area is the area within which a move to reduce costs is generally considered reasonable for a person entitled to benefits, and where an unnecessary move leads to a cap on costs at the previous level, as stipulated in Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II). The comparison area is a sufficiently large residential area defined from the place of residence of the person entitled to benefits, which, due to spatial proximity, infrastructure, and especially transport connections, forms a generally homogeneous living and residential area. Taking these requirements for the formation of a comparison area into account, the Social Court (SG) convincingly explained in detail why the city of Göttingen does not constitute a comparison area with the surrounding municipalities of Bovenden and Rosdorf. To avoid repetition, the adjudicating Senate refers to the careful and well-reasoned explanations in the challenged decisions (pages 5 et seq. in each case), pursuant to Section 153 Paragraph 2 of the Social Court Act (SGG) (see also the decisions of the 7th and 11th Senates of the Court of April 29 and September 12, 2014 – L 7 AS 330/13 and 11 AS 647/14 B ER). According to the Federal Social Court (BSG) decision SozR 4-4200 § 22 No. 26 (paragraph 15), the spatial benchmark must be chosen so that, as a rule, those seeking assistance are able to maintain their social environment. Therefore, the primary factor determining the spatial benchmark is the place of residence of the person seeking assistance. For particularly small municipalities that do not have a representative housing market, larger territorial units may be considered, and for particularly large cities, smaller territorial units. It follows that "larger cities" can at most be subdivided, but not combined with other units. Maintaining one's social environment is out of the question when a move between the city and the surrounding district is necessary.
The defendant addressed the Social Court's criticism, submitted a recalculation in the appeal proceedings with the creation of a comparison area limited to the city of Göttingen, and withdrew the appeals in the proceedings concerning the 2015 benefit period. The defendant's insistence during the oral hearing on the comparison area formed with the municipalities of Bovenden and Rosdorf, as well as the blanket alternative claim with reference to the supplementary grounds of appeal dated July 13, 2017 (!), without any differentiation or explanation, are particularly surprising given that the new rent ceilings for 2017 are based solely on the city of Göttingen as the comparison area. The municipalities of Bovenden and Rosdorf constitute a separate comparison area ("Basic Income Support-Relevant Rent Index 2017" – Methodology Report of the Institute for Housing and Environment – IWU –, Darmstadt, dated November 9, 2017, Chapter 3). Thus, the defendant's submissions during the oral hearing prove to be contradictory. The Senate was unable to accept the defendant's sincerity. Because the comparison area cannot change from one survey period to another without valid reasons, with the aforementioned consequences for oneself and in the event of a move.
The requests for evidence could not be pursued because they are not relevant to the decision. Even after further explanations in the appeal proceedings, the calculation of the reasonable rent limits remains inconclusive (see section 2). Moreover, the "influence of students on the housing market in the municipalities of Bovenden and Rosdorf" on the one hand and "on the housing market in the Göttingen districts" on the other (p. 15 of the supplementary grounds of appeal) is irrelevant. Rather, as explained above, the decisive factor is the consideration of a homogeneous living and residential area, particularly with regard to infrastructure and transport connections, which—as previously explained—cannot be established for a comparison area comprising the city of Göttingen and the municipalities of Bovenden and Rosdorf. Furthermore, the aforementioned report by the IWU confirms that the assertion that rent ceilings for Bovenden and Rosdorf can only be established within a joint comparison area with the city of Göttingen (p. 23 of the supplementary grounds of appeal) is incorrect. Finally, the blanket request to take evidence regarding the accuracy of the established comparison area (No. 1 of the brief dated March 22, 2019) aims at the legal assessment that the adjudicating panel must undertake. This assessment is not subject to the taking of evidence – and certainly not to the examination of an expert witness (Section 118 Paragraph 1 Sentence 1 of the Social Court Act in conjunction with Section 414 of the Code of Civil Procedure). The 7th Panel of the Court already pointed this out almost five years ago (loc. cit., p. 18 letter d).
2. Even with the calculation for a comparable area limited to the city of Göttingen, the defendant failed in the appeal proceedings to demonstrate the plausibility of the rent limits . The rent ceilings for the period in dispute are based on the "index update of the conclusive concept 2012," which must therefore be used for assessment. According to the defendant's submissions, the calculation in the appeal proceedings for a comparable area limited to the city of Göttingen was carried out in accordance with the original procedure in the concept. Therefore, the review and criticism of the calculation for a comparable area limited to the city of Göttingen, on which the following explanations will focus for the sake of simplicity, also encompasses the original calculation.
The coherent concept (fundamentally BSGE 104, 192) Knickrehm (SGb 2017, 241 ff.) is intended to ensure that the current conditions of the rental housing market in the relevant area form the basis for the reasonable rent limit. A concept is considered sound if, in addition to legal requirements, it also fulfills certain methodological prerequisites and is comprehensible. This requires, in particular (summarized in the aforementioned meeting report No. 2/19 – see also Sections 22a para. 3, 22b paras. 1 and 2, 22c para. 1 SGB II):
- a definition of the apartments examined according to size and standard,
- Information on the method of data collection,
- Information about the period to which the data collection relates,
- Representativeness and validity of the data collection,
- Adherence to recognized mathematical and statistical principles in data analysis,
- Avoiding “hotspots” through social segregation,
- a justification explaining how the appropriateness values were determined from the data.
Based on these prerequisites, there can be various methods for creating a coherent concept ("freedom of methods in the face of methodological diversity" – BSGE 117, 250). The representativeness of the data collection and thus the coherence of the concept underlying the determination of the appropriateness limit by A&K is denied.
The approach of determining the limits of adequacy for basic housing through a survey of the entire housing market, including both supply and demand, via an iterative process, is in itself covered by the freedom of methodology (BSG, loc. cit., para. 22). It is not necessary to define housing quality characteristics in advance (loc. cit., para. 19). The defendant remains within the bounds of this freedom of methodology by surveying apartments across the entire housing market, excluding the lowest standard. In response to an inquiry from the panel, the defendant explained in its statement of December 8, 2017, that substandard apartments were not included in the survey and that the city of Göttingen has no significant substandard areas. The panel also finds the explanation plausible that, in the event that any substandard apartments were nevertheless included, they were excluded by capping the extreme values. Furthermore, the following were not considered: apartments in residential and nursing homes, commercially or semi-commercially used apartments (with a commercial lease), company-provided apartments with reduced rent, apartments with "friendship rents" (rented at reduced rates to family members or close relatives), furnished apartments, and vacation apartments (2.4.1 of the concept, p. 15). To eliminate extreme values, the standard 95% confidence interval (two standard deviations) was used (2.5.1 of the concept, p. 19). The derivation of the limits of affordability was carried out in a multi-stage, iterative process (section 3 of the concept, pp. 26 ff.): To determine the limit of affordability, the specific size of the demand groups for each household size category that requires affordable housing was first determined. The share thus determined was increased by a safety margin of 150% for each household size to account for further potential applicants whose numbers could not be precisely determined. This resulted in caps ranging from 38% (two-person households) to 85% (five- and six-person households). The preliminary limits of reasonableness derived from the existing rents surveyed were compared with the survey results of asking rents. In a further step, the number of households deemed to be living in unsuitable accommodation, taking the preliminary limits into account, was compared with the available housing supply. In cases where the supply was less than the assumed turnover rate of 12%, the cap was increased by 10 percentage points, resulting in a corridor starting at 45% (four-person households). For the plaintiff's one-person household in question, this cap is 58%.
However, A&K does not live up to its claim that the survey represents the entire housing market with its basic, medium and upscale segments (2.2 of the concept, p. 4):
The concept paper (2.4.1, p. 17) states that the surveys were conducted in a two-stage process. In the first stage, the identified larger landlords and property management companies were contacted and asked to provide the information required for the survey. In particular, the large housing companies (Städtische Wohnungsbau GmbH and Wohnungsgenossenschaft Göttingen, p. 30 of the supplementary grounds of appeal) were recruited. For the survey of smaller landlords, address data from municipal property tax records were used. Existing rents were collected as of June 1, 2012. In the supplementary grounds of appeal and in response to the Senate's inquiries, A&K specified that, in a third stage, a job center dataset, i.e., the rental data of all households receiving benefits, was also analyzed. This dataset was purged of address data from the portfolios of the large landlords as well as all contacted small, private landlords. Only rental values that could not have been recorded in the landlord surveys were included. Thus, a rental value from the SGB II dataset was disregarded as soon as the address of the apartment matched the address of a property belonging to a landlord who had been contacted, regardless of whether the landlord responded or whether they actually owned the apartment within the building. The response rate then breaks down by landlord group as follows: large landlords 11,136, small landlords 556, job centers 2,876 (page 2 of the statement submitted on July 16, 2018, in the further appeal proceedings before the presiding panel under file number L 6 AS 215/17, page 1, point 1.1 of the supplementary statement of December 13, 2018). This sample does not represent the entirety of the housing market in Göttingen and carries the risk of circular reasoning.
a) Firstly, as the Social Court has already pointed out, large landlords overwhelmingly dominate. Furthermore, the Göttingen Municipal Housing Company and the Göttingen Housing Cooperative alone, with their entire portfolio of approximately 9,000 apartments, were included (p. 30 of the supplementary grounds of appeal). Thus, these two landlords alone account for more than 60% of all rental data records (14,568). However, their share of the total number of rented apartments (48,907, supplementary statement of December 13, 2018, ibid.) is less than 20%. In contrast, only 556 data records from small landlords were included in the sample. Their share is therefore less than 4%. Moreover, the responses from small landlords can only be based on tenancy agreements with benefit recipients (see below under b). The assumption that the job center's data sets (2,876, approximately 20%) are "predominantly attributable to small private landlords" (p. 2 of the statement dated July 16, 2018) is unfounded and does not alter the fact that the sample lacks representativeness with regard to large and small landlords. For this reason alone, the sample does not reflect the reality of the housing market in Göttingen (cf. Bavarian State Social Court judgments of December 14, 2017 – L 7 AS 466/16). juris Rn 41 ff – and March 28, 2018 – L 11 AS 52/16 – juris Rn 50). The Social Court's assessment that affordable housing, i.e., the lower segment, is overrepresented in the sample was confirmed in the appeal proceedings.
b) Secondly, it cannot be ruled out that the sample is also dominated by the rental data of benefit recipients. In June 2012, there were 8,362 households receiving benefits in the city of Göttingen, all of which could theoretically have been included in the survey. It is inconclusive to use only the separately reported share of 2,876 rental values (p. 2 1.2 of the supplementary statement of December 13, 2018) to determine the proportion of benefit recipients in the sample. This is because the rental values obtained from landlords may also contain data from benefit recipients that were simply excluded to avoid double counting. It is therefore possible that all benefit recipients (8,362 households receiving benefits) were included. Their share of the sample (14,568 data records) could thus be almost 60%. For this reason as well, it cannot be concluded that the entire housing market in Göttingen is evenly represented in the sample (see, regarding this criticism of A&K's methodology, the judgments of the Schleswig-Holstein State Social Court of January 15, 2018 – L 3 AS 111/15). juris Rn 62 and the Bay LSG of 28 March 2018 – L 11 AS 620/16 juris Rn 50).
It is also unhelpful to "extract" the SGB II data set, as the defendant's representatives suggested in the oral proceedings. This is because only the rental values that might not have already been considered in the landlord surveys are shown. It is unknown what additional rental data from benefit recipients is contained in the landlords' responses. Moreover, the disparity between large and small landlords outlined in point a) would remain.
Finally, the argument that the sample is not biased because the distribution of rent levels within the price range showed no differences between the individual datasets is not convincing. This result also surprised A&K, as evidenced by their statements during the oral proceedings. The presiding panel cannot comprehend the significance of the result; the rental values from all the datasets used were identical, as this essentially implies that the sub-markets of welfare recipients, institutional landlords, and private landlords are identical. The panel was unable to accept the credibility of the argument presented during the oral proceedings that welfare recipients in Göttingen, like the rest of the population, do not primarily live in the lower price segment but pay higher prices per square meter for smaller apartments. Rather, it must be assumed that welfare recipients utilize affordable housing and that the data therefore pertains to the lower price segment, which is thus disproportionately represented. Furthermore, A&K's argument ultimately implies that they could have relied solely on the data set of benefit recipients, which clearly demonstrates the lack of coherence in their approach of capturing the entire housing market and constitutes an inadmissible circular argument (see, for example, BSG SozR 4-4200 § 22 No. 85 para. 21). The result of the rent distribution can readily be explained by the fact that the landlord data sets contain a high proportion of rent values from recipients of benefits under Book II of the German Social Code (SGB II).
Furthermore, it is surprising that A&K did not disclose the use of rental values from benefit recipients in its concept. The explanation that the use of the benefit recipients' data set was not included "in older concepts" because "these values were not obtained through a survey in the sense of interviewing individuals" (p. 1.2 of the supplementary statement of December 13, 2018) is not comprehensible, not even in the slightest. This crucial data collection step was only disclosed following the Social Court's criticism of the sample's lack of representativeness. This procedure leads the adjudicating panel to doubt whether all aspects relevant to the assessment of the concept have now been presented.
c) The lack of representativeness of the sample cannot be mitigated by referring to the iterative procedure (see also Bavarian State Social Court judgment of March 28, 2018 – L 11 AS 620/16 – juris para. 51). The concept is based on surveying the entire housing market, encompassing basic, mid-range, and high-end housing. However, as explained above, such a diverse sample cannot be assumed. Furthermore, the percentile for single-person households was not increased because A&K considered the available housing supply to be sufficient.
The assertion that weighting to ensure the representativeness of the sample is neither possible nor necessary (pp. 29 ff. of the supplementary grounds of appeal) is clearly incorrect, given that the IWU (Institute for Housing and Urban Development) performs such weighting in the "2017 Rent Index Relevant to Basic Income Support" (4.3.3, pp. 20 f.) and emphasizes it as a "method for quality assurance." Representativeness and weighting to create a bias-free sample are methodological requirements for the creation of a rent index (e.g., Börstinghaus/Clar , 2nd ed. 2013, Part II, in particular para. 542 and V.1, para. 579 ff.).
d) Against this background, the Senate does not need to investigate the existing doubts as to whether the collected rental values allow for a reliable conclusion regarding the level of rents for new tenancies. All rental values as of June 1, 2012, were included, regardless of how long ago the last rent increase had been. However, older tenancies, in particular, are not always adjusted to the usual cost increases and therefore do not necessarily reflect the rent level for a new tenancy (for more details, see Schleswig-Holstein Higher Social Court, loc. cit., para. 65). Therefore, according to Section 558 Paragraph 2 Sentence 1 of the German Civil Code, the local comparative rent is calculated from the rents that have been agreed upon or changed in the last four years (Börstinghaus/Clar , loc. cit., Part 3 II. 5. a, in particular para. 229). Moreover, even after the explanations in the oral proceedings, it is not certain that the job center data set consistently reflects the actual housing costs as of the reference date of June 1, 2012. This is because it cannot be ruled out that benefit recipients might not report a rent increase if their housing costs were already above the reasonable limit.
e) Finally, the further motions for the taking of evidence maintained during the oral hearing need not be considered. Apart from the fact that these motions are surprising in light of the written information obtained from A&K and the thorough questioning during the oral hearing, and that the defendant's representatives did not even attempt to explain their relevance to the decision, they cannot be followed. Firstly, they have been answered by the written statements and the supplementary arguments presented during the oral hearing. Secondly, as already mentioned above (under 1 aE), they aim at a legal conclusion (in particular points 7 and 9 of the brief dated March 22, 2019: "circular reasoning" and agreement with "the case law of the Federal Social Court"), which the panel must draw.
3. The deficiencies cannot be remedied even after A&K's explanations, resulting in a lack of information that must be compensated for by applying the values according to the Housing Benefit Act (WoGG). Applying or even reverting to the concept developed by the IWU in 2017 is not possible because, at the time of the cost reduction, the plaintiff had not yet had the opportunity to discuss the defendant's 2017 concept with him in the required dialogue regarding the cost reduction request (Judgment of the Federal Social Court of January 30, 2019 – B 14 AS 11/18 R – No. 4 of the hearing report No. 2/19 on the hearing preview No. 2/19). Furthermore, the actual expenses to be paid in the disputed period 2016 amounting to €458.01 per month hardly exceed – and therefore in a negligible manner (cf. Section 22 Paragraph 1 Sentence 4 SGB II) – the new rent ceiling of €452.44, which is based on data collected in 2017.
4. For these reasons alone, the defendant's underlying concept for the rent cap proves to be flawed, and the appeal must be dismissed. Therefore, it is unnecessary to determine whether the indexation of the rent values collected in 2012 is sufficient for single-person households in 2014 and then again in 2017, given the significant double-digit percentage increases in each case (see also Section 22c Paragraph 2 of the German Social Code, Book II (SGB II), Federal Social Court (BSG) SozR 4-4200 Section 22 No. 93, marginal note 18), and what consequences would arise if it is not (left open in the aforementioned paragraph 19). Legal literature considers significant fluctuations requiring review within the two-year period to begin at 5% (e.g., Berlit in LPK-SGB II, 6th edition, Section 22c, marginal note 30 at the end).
The decision on costs is based on Section 193 of the Social Courts Act (SGG).
There is no legal basis for granting leave to appeal (§ 160 para. 2 SGG). The panel has followed the requirements developed by the highest courts for determining the appropriateness of housing costs and has reviewed the defendant's concept in light of these requirements.
The following is information on legal remedies.
