DECISION
In the legal dispute
1. xxx
2. xxx
Applicant,
Legal representative: for 1-2:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter Werra-Meißner, represented by the managing director,
Fuldaer Straße 6, 37269 Eschwege
Respondent,
The 6th Chamber of the Social Court of Kassel decided on August 15, 2019, through the presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to
- to grant the respondents provisional benefits for accommodation costs (basic rent and cold ancillary costs) in the amount of 415.80 euros per month for a period of 6 months, at the latest until a legally binding decision is reached in the main proceedings and subject to a change in the actual living conditions, for a period of 6 months, but no longer than until a legally binding decision is reached in the main proceedings
- to grant the respondents a provisional loan of 935.43 euros to overcome rent arrears.
The respondent shall bear the costs of the proceedings.
REASONS
I.
The applicants, who are receiving benefits from the respondent, have been living in a 58.29 sq m apartment in [address redacted] in Eschwege since 2009. The second applicant, aged 20, is still eligible for child benefit as a job seeker. Most recently, the respondent granted benefits for the period from February 1 to July 31, 2019, by decision dated January 31, 2019. A subsequent decision for the period from August 1, 2019, onwards has not been submitted. The respondent approved housing costs of €171.44 basic rent plus €178 for utilities and €101.40 for heating per month, totaling €450.88. This is based on the respondent's plan, which is based on the final report from the "Analysis & Concepts" Institute dated May 18, 2018.
According to the lease agreement, the applicants incur actual costs of €254.73 for basic rent, €178 for utilities (excluding heating), and €148.50 for heating, totaling €581.23. A request to reduce costs was issued on October 26, 2015. The respondent only implemented this request with an amended decision dated January 12, 2017, as upheld by the appeal decision of February 22, 2017, effective from January 2017. The total costs actually incurred were paid to the applicants' landlord (xxx) until November 2018. From December 2018 onward, only the aforementioned lower costs were paid, resulting in a shortfall of €130.35 per month. To settle the rent arrears, the respondent granted the applicants a loan of €2,700.91 in November 2017. By mid-July 2019, 55.4% of this sum had been repaid.
According to the applicants, the landlord has not yet terminated the lease due to the rent arrears.
The applicants state that, according to the utility bill for 2017, monthly cold utility costs amounted to the equivalent of €180.63 and heating costs to the equivalent of €113.65 per year. The advance payment for these costs was initially not adjusted. In a letter dated July 9, 2019, the applicants' legal representative states that the landlord agreed to reduce the heating cost advance payment to €100 per month (which now results in a funding gap of approximately €83 per month).
The applicants filed an objection on February 25, 2019, against the decision of January 31, 2019, which the respondent rejected with a decision on the objection dated April 3, 2019. The legal proceedings against this decision are pending before the Kassel Social Court under file number S 6 AS 251/19.
On July 3, 2019, the applicants applied for preliminary legal protection at the Kassel Social Court.
In a letter dated July 11, 2019, the applicants amended their application to include a request for a loan of €935.43 to prevent homelessness. The respondent rejected the corresponding application of July 2, 2019, by decision dated July 5, 2019.
The applicants essentially request that
- to order the respondent, by way of an interim injunction, to grant the respondents provisional benefits in the statutory amount, subject to a claim for reimbursement, for a maximum period until a final and binding decision is reached in the main proceedings, taking into account the legal opinion of the court
- to provisionally order the respondent, pending a decision on the merits, to grant the applicants a loan of currently 935.43 euros to prevent homelessness, in response to their application of July 2, 2019.
The respondent requests that
to reject the applications.
For further details of the facts, reference is made to the court file and the respondent's file.
II.
The application for an interim injunction is justified to the extent stated.
The applicants seek to expand their legal position; therefore, a preliminary injunction in the form of a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG) is admissible. Preliminary injunctions pursuant to Section 86b Paragraph 2 Sentence 2 SGG are permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. Such an order requires both a claim for an injunction (the substantive right for which preliminary legal protection is sought) and grounds for an injunction (urgency in the sense that a provisional regulation is necessary because waiting for a decision in the main proceedings is unreasonable). Both the claim for an injunction and the grounds for an injunction must be credible (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2, Section 294 of the Code of Civil Procedure – ZPO).
The claim for an injunction and the grounds for it do not exist in isolation. Rather, they are interrelated, with the requirements for the claim for an injunction decreasing as the urgency or severity of the threatened harm (the grounds for the injunction) increases, and vice versa. Due to their functional connection, the claim for an injunction and the grounds for it form a dynamic system (Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 10th ed., § 86b para. 27 and 29, 29a with further references): If a claim on the merits is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected regardless of the grounds for the injunction, because no right worthy of protection exists. Conversely, if a claim on the merits is manifestly well-founded, the requirements for the grounds for the injunction are reduced, although in this case a ground for the injunction cannot be dispensed with entirely. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the factual or legal situation is not possible in preliminary legal protection, a balancing of interests must be undertaken to determine which party can more reasonably be expected to wait for the decision in the main proceedings. The applicant's fundamental rights must be fully considered in this balancing process.
In the present case, the court considers the existence of a claim for an injunction and grounds for an injunction to be sufficiently substantiated with regard to both applications.
1. Higher KdUH
The central question in this legal dispute is whether the (higher) housing costs claimed by the applicants constitute reasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). Expenses for accommodation and heating are considered reasonable if they remain within the range of the comparable rent determined by a sound methodology (see Federal Social Court [BSG], Judgment of February 19, 2009 – B 4 AS 30/08 R –, BSGE 102, 263). Such a sound methodology requires a systematic approach involving the systematic determination and evaluation of general, albeit location- and time-specific, facts for all applicable cases within the relevant area (BSG, Judgment of September 22, 2009 – B 4 AS 18/09 R –, BSGE 104, 192). The creation of a coherent concept is not the responsibility of the social courts, but rather of the respective basic income support providers (established case law of the Federal Social Court, see, for example: judgment of July 2, 2009 – B 14 AS 33/08 R –, SozR 4-4200 § 22 No. 25; judgment of September 10, 2013 – B 4 AS 77/12 R –, SozR 4-4200 § 22 No. 70, para. 20 with further references). According to established case law of the Federal Social Court, a concept is considered coherent if the following minimum requirements are met:
(1) Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area;
(2) a comprehensible definition of the subject of observation (type of dwellings, differentiation according to the standard of the dwellings, gross and net rent/comparability, differentiation according to dwelling size);
(3) information on the observation period;
(4) specification of the method of data collection (sources of information, e.g., rent index);
(5) representativeness of the scope of the data included;
(6) validity of the data collection;
(7) compliance with recognized mathematical and statistical principles of data analysis;
(8) information on the conclusions drawn (e.g., upper limit of the range or cap) (cf., for example, Federal Social Court, judgments of September 10, 2013 – B 4 AS 77/12 R, SozR 4-4200 § 22 No. 70, and of June 16, 2015 – B 4 AS 45/14 R –).
According to the established case law of the Federal Social Court (BSG), the determination of the reasonableness limit is carried out in a multi-stage process: First, it must be checked whether the actual costs of the person entitled to benefits for their accommodation are reasonable in abstract terms, that is, whether the costs correspond to what is to be paid for an apartment considered reasonable according to abstract criteria on the relevant housing market (abstract reasonableness test). If the actual housing costs exceed the abstractly determined reference rent, it must be verified whether an apartment that meets the abstract criteria is actually available and can be rented on the rental market for the benefit recipient, i.e., whether it is concretely possible for them to reduce their housing costs to the abstractly reasonable level (so-called concrete reasonableness, see in detail: Federal Social Court, judgment of August 22, 2012 – B 14 AS 13/12 R –, SozR 4-4200 § 22 No. 64, para. 14; for a detailed discussion of concrete reasonableness, see, for example, Luik in Eicher/Luik, SGB II, 4th edition 2017, § 22 para. 108). To determine the reasonable costs, the respondent used the services of the institute "Analyse & Konzepte," which prepared an expert opinion in May 2018. The respondents criticize the "coherence" of the concept due to methodological errors (see p. 6 of the court file).
With regard to the central question of the "coherence" of the respondent's concept, the complexity of the legal issues at stake makes a final decision in the preliminary injunction proceedings impossible for the court, nor is such a decision required. Therefore, a decision must be made based on a balancing of interests, considering, on the one hand, the consequences for the applicants of waiting for a decision on the merits, and, on the other hand, the consequences for the authority – ultimately the taxpayer – if the decision reached in the main proceedings proves to be incorrect. Both sides are primarily concerned with economic interests. However, the respondents also face the additional threat of losing their homes if they continue to be unable to pay the full rent to the landlord, as has been the case in the past.
The court assumes that grounds for an injunction have been demonstrated, even though the landlord has not yet terminated the tenancy. According to Section 543, Paragraphs 1 and 2 of the German Civil Code (BGB), the landlord is entitled to extraordinary termination if the tenant falls into arrears with a portion of the rent payment amounting to two months' rent, which has already occurred in the respondents' case. Realistically, termination is to be expected soon, even if the application for preliminary relief was technically filed prematurely. Since the respondent has already refused a loan to cover the rent arrears, the applicants would not be able to prevent the termination by subsequently paying the outstanding rent.
It remains reserved for the main proceedings whether the respondent's concept proves to be conclusive within the meaning of the case law of the Federal Social Court (see Federal Social Court, judgment of June 18, 2008 – B 14/7b AS 44/06 R) and whether the limitation of the housing costs is therefore correct. It should be noted that, should the concept prove to be flawed and a revision by the municipal authority not be feasible, according to the case law of the Federal Social Court (BSG) (see BSG, judgment of June 16, 2015 – B 4 AS 44/14 R –, SozR 4-4200 § 22 No. 85, para. 25), the table values of Section 12 of the Housing Benefit Act (WoGG) plus a 10% surcharge will initially apply on a transitional basis. The applicants' place of residence is assigned to rent level I according to the appendix to Section 1 para. 3 of the Housing Benefit Ordinance (WoGV). In this case, this value would amount to €415.80 for the applicants, which is €16.93 less than the actual housing costs. Given this small difference – as the respondent's statement in the brief of August 8, 2019, should also be understood – the question of the economic viability of a The possibility of moving to a cheaper apartment at the appropriate time should be seriously considered. Specifically, this means that, for the necessary cost-benefit analysis, keeping the apartment depends on uncovered costs of only €16.93.
Regarding heating costs, it should be noted that the applicants have apparently shown more economical behavior, as they were able to reduce their costs from 148.50 to (in 2017) actual costs of 113.65 euros per month and have now even agreed with the landlord on a reduction to 100 euros in advance heating costs.
It remains disputed between the parties whether the respondent was entitled to reduce the actual costs because he issued a legally valid request to reduce costs. In this regard, a preliminary review indicates that the respondent issued a valid request to reduce costs, which would not have needed to be renewed even by an interruption in the receipt of benefits. No such interruption in the receipt of benefits of more than one month is apparent from the file.
2. Loan application
The above considerations apply accordingly to applications for the provisional approval and disbursement of a loan. According to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), if unemployment benefit II is provided to cover the costs of accommodation and heating, debts can also be assumed, insofar as this is justified to secure accommodation or to alleviate a comparable emergency. They should be assumed if this is justified and necessary, and if homelessness would otherwise be imminent.
Whether the applicants' apartment is "worth preserving" because it permanently exceeds the reasonable rent limits set by the respondent, and therefore further rent arrears will accrue in the future, ultimately also depends on whether the respondent's concept proves convincing in the main proceedings. Here, too, the required balancing of interests leads to the conclusion that the respondent should be granted the requested benefit provisionally.
The court expressly points out that the benefits granted in the preliminary injunction proceedings are only provisional and must be repaid if the main proceedings have a different outcome.
The cost consequences are governed by Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
