Social Court Hildesheim – Judgment of 24 May 2019 – Case No.: S 34 SO 40/16

VERDICT

 

In the legal dispute

 

1. xxx,

2. xxx,

– Plaintiff - 

 

Legal representative:

Regarding points 1-2: Lawyer Sven Adam,

Lange Geismarstraße 55, 37073 Göttingen

 

against

 

The district of Göttingen, represented by the city of Göttingen, legal department,

Hiroshimaplatz 1-4, 37083 Göttingen

– Defendant –

 

The 44th Chamber of the Social Court of Hildesheim, without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), rendered the following judgment on May 24, 2019, through Judge xxx and Lay Judges xxx and xxx:

 

 

 

The plaintiffs seek, within the framework of basic income support for the elderly and those with reduced earning capacity under the Social Code Book XII — Social Assistance — (SGB XII), the granting of the actual costs of accommodation for the period from January 1st to December 31st, 2016.

 

The first plaintiff, born in 1949, and her husband, the second plaintiff, born in 1942, live in a 60 m² apartment in [address redacted] in Göttingen. Their monthly rent, including utilities, is €499, and their heating costs are €56. During the period in question, the first plaintiff received a monthly retirement pension of €336.54, and the second plaintiff received €606.04. They had no assets of value during this time.

 

The city of Göttingen informed the plaintiffs by letter dated October 15, 2014, that their accommodation costs exceeded the reasonable limit of €381 per month. The plaintiffs explained that, due to the tight housing market, it was impossible for them to reduce their accommodation expenses.

 

The city of Göttingen granted the plaintiffs basic income support for the elderly and those with reduced earning capacity for the period from January 1st to December 31st, 2016 in the amount of 289.77 euros per month by decision dated December 10th, 2015, taking into account accommodation costs of 402 euros per month.

 

The plaintiffs filed an objection on December 16, 2015, arguing that the expert opinion from the company Analyse & Konzepte (A&K report) was not a conclusive concept within the meaning of the jurisprudence of the Federal Social Court (BSG). They maintained that the housing benefit table plus a 10 percent safety margin should be applied.

 

By decision dated January 25, 2016, the city amended the permit due to changes in health and long-term care insurance contributions while accommodation costs remained the same.

 

The defendant rejected the objection with a formal notice of rejection dated March 16, 2016, arguing that the accommodation costs were unreasonably high. There was no indication that a move would be unreasonable.

 

The plaintiffs filed a lawsuit on March 21, 2016.

 

They will present:

 

The A&K report is not a conclusive concept, so the housing benefit table plus a safety margin of 10 percent should be applied.

 

The plaintiffs request that

to order the defendant, amending the decision of December 10, 2015 as modified by the appeal decision of March 16, 2016, to grant the plaintiffs the requested benefits monthly in the statutory amount, taking into account the legal opinion of the court. 

 

The defendant requests that

to dismiss the lawsuit.

 

He presents his case with reference to the issued decisions.

 

The parties unanimously waived their right to an oral hearing.

 

Regarding the further submissions of the parties, reference is made to the contents of the court file and the administrative file.

 

 

The lawsuit is successful.

 

The chamber was able to decide the legal dispute without an oral hearing because the parties had waived this right in accordance with Section 124 Paragraph 2 of the Social Court Act (SGG).

 

The decision of the City of Göttingen dated December 10, 2015, as amended by the decision of January 25, 2016, and as further modified by the appeal decision of March 16, 2016, is unlawful to the extent stated and infringes upon the plaintiffs' rights. The decision of January 25, 2016, became the subject of the appeal proceedings pursuant to Section 86 of the Social Court Act (SGG).

 

The subject of this dispute is the period from January 1 to December 31, 2016, which was regulated in the contested decisions. The authority's decisions regarding subsequent periods are not admissible under Section 96 of the Social Court Act (SGG) (see Federal Social Court judgments of November 7, 2006 – B 7b AS 14/06 R – and June 25, 2008 – B 11 b AS 35/06 R –).

 

The plaintiffs are convinced that they are entitled to a further €97 per month during the period in dispute as part of the accommodation costs, which are to be taken into account in the actual amount of €499 per month.

 

The plaintiffs are entitled to benefits during the period in dispute pursuant to Sections 41, 42, and 19 Paragraph 2 of the German Social Code, Book XII (SGB XII) (in the version applicable during the period in dispute), because they have reached the age limit stipulated in Section 41 Paragraph 2 of the SGB XII and cannot adequately cover their necessary living expenses from income and assets. The defendant was therefore correct in granting them basic income support for the elderly and those with reduced earning capacity.

 

According to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), needs for accommodation and heating are recognized up to the amount of the actual expenses. If the accommodation expenses exceed what is reasonable given the specific circumstances of the individual case, they are to be recognized to that extent as a need of the persons whose income and assets are to be taken into account according to Section 27 Paragraph 2 (Paragraph 2 Sentence 1). Sentence 1 applies as long as it is not possible or reasonable for these persons to reduce the expenses by moving, subletting, or in any other way, but generally for no longer than six months (Sentence 2).

 

The subject matter of the dispute has been effectively limited to the costs of accommodation. This constitutes a severable, separately appealable order (see judgments of the Federal Social Court of August 6, 2014 – B 4 AS 55/13 R –, March 29, 2007 – B 7b AS 2/06 R –, November 7, 2006 – B 7b AS 8/06 R – and February 27, 2008 – B 14 AS 23/07 R –). However, the assessment of reasonableness must be carried out separately for accommodation and heating costs, so that an overall reasonableness limit in the sense of an extended product theory is to be rejected (see judgments of the Federal Social Court of July 2, 2009 – B 14 AS 36/08 R – and December 17, 2009 – B 4 AS 50/09 R –). This lawsuit does not pursue higher heating costs, especially since the defendant takes the actual heating costs into account.

 

The defendant, in the opinion of the court, lacks a coherent concept for determining reasonable housing costs in the Göttingen area. The expert report obtained by the defendant from A&K does not meet the requirements of the Federal Social Court's (BSG) jurisprudence.

 

According to the jurisprudence of the Federal Social Court (BSG) (see judgment of November 7, 2006 – B 7b AS 18/06 R –), the appropriateness of accommodation costs (basic rent and utilities) must be examined in several steps: First, the size of the apartment rented by the person in need of assistance or by the household must be determined; that is, the square footage of the apartment in question must be ascertained. The apartment size must be determined in accordance with the state-level guidelines on social housing. After determining the apartment size, the standard of the apartment must be considered as a further factor. Expenses for an apartment are only considered appropriate if, in terms of its furnishings, location, and building structure, it meets basic and fundamental needs and does not represent a high standard of living. Therefore, with regard to the aforementioned criteria, the factors that regularly determine the price per square meter, which are reflected in the rent, the apartment must be in the lower segment of comparable apartments in the relevant geographical area. The primary spatial benchmark for comparison is the place of residence of the person in need of assistance, because a move to a different location that would entail abandoning their social environment cannot generally be expected of them (see Federal Social Court judgment of November 7, 2006 – B 7b AS 10/06 R –). However, the assessment of appropriateness is not to be based solely on abstract, market-rate rents. Rather, according to the Federal Social Court's jurisprudence, the authority must, as a final step, conduct a concrete assessment of appropriateness, namely whether another suitable and more cost-effective apartment is actually and specifically available and accessible to the person in need of assistance. If no such concrete alternative accommodation exists, the expenses for the accommodation actually rented are to be considered specifically appropriate (see Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R – para. 22).

 

According to the case law of the Federal Social Court (BSG), the basic income support provider must create a coherent concept which, according to the judgment of the aforementioned court of September 22, 2009 – B 4 AS 18/09 R – must meet the following criteria: 

 

 

The court is convinced that the defendant lacks a coherent concept for determining housing costs. Therefore, the values ​​in the housing benefit table as amended on January 1, 2009 (§ 12 Housing Benefit Act (WoGG)) plus a safety margin of 10 percent, or the version of § 12 WoGG as amended on January 1, 2016, must be used. 

 

When determining reasonable housing needs, the appropriate size of the apartment must be considered (see the Federal Social Court's judgment of November 7, 2006 – B 7b AS 18/06 R). In Lower Saxony, the guidelines for social housing promotion (Housing Promotion Regulations – WFB 2003) are regulated in the circular of June 27, 2003 (Lower Saxony Ministerial Gazette 2003, Issue 27, p. 580). According to Section B No. 11.2 of the Housing Promotion Regulations – WFB 2003 – a living space of up to 60 m² is considered appropriate for a two-person household in rental apartments. The apartment occupied by the plaintiffs, with a living space of 60 m², is therefore of an appropriate size.

 

(I)

First, within the framework of a coherent concept, the local comparison area must be established. It is necessary to describe sufficiently large areas of residential development that, due to their spatial proximity to one another, their infrastructure, and especially their transport connections, form an overall homogeneous living and residential area. In rural areas, it may be necessary to combine larger areas as a benchmark for comparison (see the judgment of the Federal Social Court of December 12, 2013 — B 4 AS 87/12 R —).

 

The defendant, in the Chamber's opinion, wrongly formed a common comparison area of ​​the city of Göttingen, the municipality of Rosdorf and the town of Bovenden, so that the A&K expert opinion is already inconclusive for this reason alone. 

 

The Chamber bases this assessment on the judgment of the Lower Saxony-Bremen State Social Court (LSG) of April 29, 2014 – L 7 AS 330/13 – and on its decision of August 12, 2014 – L 11 AS 647/14 B ER – concerning the F+B expert opinion. In the first-mentioned judgment, which became legally binding after the dismissal of the appeal on points of law, the LSG explicitly states that the city of Göttingen has a distinct character, separate from the neighboring municipalities, due to its dominant university structure. The mere fact that neighboring municipalities can be reached by bus does not justify the assumption of including a further comparison area. The Chamber concurs with these convincing arguments and points out that the F+B expert opinion itself based its comparison solely on the city of Göttingen. Contrary to the defendant's assertion, it is not apparent that this decision was legally flawed, particularly since no significant change in circumstances has occurred since the A&K expert opinion came into effect that would justify a different definition of the comparison area. Moreover, the defendant does not even claim otherwise.

 

Furthermore, the Chamber concurs with the reasoning in the decision of the Higher Social Court (LSG) of August 12, 2014, which deals extensively with the local comparison area of ​​Göttingen/Rosdorf/Bovenden and convincingly rejects the existence of such an area. According to this decision, a homogeneous living and residential area does not exist. Short or reasonable commuting times between different comparison areas alone do not create an overall homogeneous living environment. Therefore, the argument of close transport connections via the A7 motorway and various bus lines oriented towards Göttingen does not justify a unified comparison area. The fact that there is no single, unified housing market also points to heterogeneous living conditions. This is further demonstrated by the different rent limits in the previous F+B expert opinion. The Chamber is convinced that the rent levels in the selected comparison area are not comparable and draws this conclusion specifically from the classification into different rent levels in the housing allowance table (rent level IV Göttingen; rent level III Bovenden and Rosdorf). This differentiation of reasonable rents under the Housing Benefit Act is in no way reflected in the A&K expert opinion and therefore raises serious doubts. The rental markets of a city of 130,000 inhabitants with a strong university character, despite their transport connections and the presence of commuting workers, are not comparable to two municipalities of 14,000 and 12,000 inhabitants, respectively, and in the present case, the court is not convinced that they constitute a single, unified area of ​​comparison. This conclusion is not contradicted by the fact that the IGS Bovenden also admits students residing in Göttingen. This finding does not allow for the conclusion that there is a unified housing market.

 

The court's legal opinion that the city of Göttingen does not form a common comparison area with Rosdorf and Bovenden was, moreover, fully shared by the 6th Senate of the Lower Saxony-Bremen State Social Court in its judgment of April 2, 2019 — L 6 AS 467/17.

 

While this fact is not decisive for the outcome of the case, the IWU report commissioned by the defendant on September 1, 2017, appears to confirm the court's decision regarding the local comparison area. The article in the "Göttinger Tageblatt" of August 1, 2017, indicates that IWU, like its predecessor F+B report, assumes a single comparison area of ​​the city of Göttingen excluding Bovenden and Rosdorf. Accordingly, Göttingen is assessed as a "very expensive university town" with a "very affordable surrounding area." This finding aligns with the court's argument that the rent levels in Bovenden and Rosdorf are not comparable to those in the city of Göttingen.

 

(II)

The court is also convinced that the defendant's determination of the appropriate rent per square meter for the appropriate housing standard in the apartment size category up to 60 m² is not based on a coherent concept within the meaning of the established case law of the Federal Social Court (BSG). The latter defines a coherent concept as a planned approach by the basic income support provider in the sense of a systematic investigation and evaluation of general, albeit location- and time-dependent, facts for all cases within the relevant comparison area, and not merely an ad hoc approach on a case-by-case basis (see judgment of September 22, 2009 — B 4 AS 18/09 R -).

 

The defendant's concept fails to meet the minimum requirements for a coherent concept in essential respects. The rent data collection, based on the analysis of advertised and existing rents, lacks a comprehensible definition of the subject of observation, the representativeness of the scope and the cap are not verifiable, and therefore it cannot be conclusively determined whether the actual costs for basic housing 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 jurisprudence 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 —).

 

Due to the passage of time (the final report dates from March 2013) and the fact that the standard of the inspected apartments was not determined, the court has no further obligation to investigate. A complete reassessment of data concerning the furnishings and standard of the underlying apartments would be necessary to establish a conclusive concept. However, given the total number of 21,010 accommodations inspected, this cannot be accomplished within the framework of the court proceedings.

 

If – as in the present case – a conclusive concept within the meaning of the Federal Social Court's (BSG) jurisprudence does not exist and cannot be subsequently established, it is permissible to refer to the housing benefit table and to apply an appropriate safety margin (see judgments of the BSG of October 19, 2010 – B 14 AS 15/09 R – and December 17, 2009 – B 4 AS 50/09 R –; judgment of the Hessian State Social Court of December 20, 2010 – L 9 AS 239/08 –), whereby the BSG, in judgments of December 11, 2012 – B 4 AS 44/12 R – and December 12, 2013 – B 4 AS 87/12 R – considered a surcharge of 10 percent on the respective applicable version of the housing benefit table to be appropriate.

 

The housing benefit table applicable from January 1, 2016, specifies a reasonable value of €526 for rent level IV for a two-person household. Since the actual accommodation costs during the period in question amounted to €499 per month, these costs are also to be covered as reasonable. In this context, the application of a safety margin is not necessary in this particular case, because the actual costs are already significantly lower than the basic table value.

 

The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).

 

Pursuant to Section 144 Paragraph 1 Sentence 1 No. 1, Paragraph 2 of the Social Court Act (SGG), the appeal does not require leave to appeal because the defendant's grievance of 1,164 euros is above the threshold of 750 euros.

 

 

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