VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Werra-Meißner district, represented by the district committee, legal department 3.1,
Schlossplatz 1, 37269 Eschwege,
Defendant,
The 12th Chamber of the Social Court of Kassel, on November 19, 2020, through the presiding judge, Judge xxx, and the lay judges Mr. xxx and Mr. xxx, rendered the following judgment without oral proceedings:
- The decision of February 17, 2020, as amended by the appeal decision of June 24, 2020, is modified and the defendant is ordered to grant the plaintiff benefits as a single adult under Section 2 AsylbLG at standard benefit level 1 from January 1, 2020 until provisionally December 31, 2020, taking into account the payments already granted to him at the same time.
- The defendant must reimburse the plaintiff for the costs of the legal proceedings.
- The appeal is admitted.
FACTS
The parties are in dispute regarding the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 1, 2020, to December 31, 2020. The plaintiff, born on [date redacted] 1988, is of Ethiopian origin and, according to the file, is single. He applied for asylum after entering the Federal Republic of Germany on September 20, 2017. He holds a temporary residence permit, has been assigned to the defendant since January 2018, and has since lived in communal accommodation without having his own self-contained living unit. He receives benefits under the AsylbLG, which were initially granted and paid to him based on standard benefit level 1. However, at least as is the sole subject of this dispute, from January 1, 2020, onwards, the benefits have been based solely on standard benefit level 2. The plaintiff seeks to continue and definitively claim benefits beyond the provisional benefits obtained through an out-of-court settlement in preliminary legal proceedings. claims standard benefit level 1.
Following a prior receipt of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) amounting to €325.88 per month, the plaintiff was granted reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) amounting to €190.88 per month, based on the standard benefit level 1, by decision dated April 29, 2019, from May 1, 2019 to October 31, 2019, and subsequently by decision dated November 1, 2019 to April 30, 2020, by decision dated November 1, 2019 to April 30, 2020. By further decision dated December 16, 2020, the latter decision was revoked with reference to Section 48 of the Social Code – Administrative Procedure (SGB X) with effect from January 1, 2020, and the plaintiff was granted reduced benefits pursuant to Section 1a AsylbLG for the period from January 1, 2020 to April 30, 2020, amounting to only €167.00 per month. In an initial objection proceeding directed solely against the actual granting of benefits, as well as in the related preliminary injunction proceedings S 11 AY 1/20 ER, the plaintiff then objected to the granting of benefits solely under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The defendant then simultaneously initiated an examination to determine whether the requirements for granting benefits in the form of so-called analogous benefits under Section 2 of the AsylbLG had already been met. This was subsequently affirmed for the period from January 1, 2020, and the plaintiff was granted benefits under Section 2 of the AsylbLG in the amount of €355.58 per month retroactively from January 1, 2020, to December 31, 2020, by a further amended decision dated February 17, 2020. Thus, the aforementioned preliminary injunction proceedings and, according to the file, also the objection proceedings, which had only extended to the granting of benefits until December 31, 2019, were temporarily concluded by withdrawing the objection.
After the decision of February 17, 2020, had granted benefits solely at standard benefit level 2, the plaintiff, through his legal representative, filed an objection to this decision on February 28, 2020. He demanded that, effective January 1, 2020, the benefits granted to him under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) be granted based on standard benefit level 1, arguing that the provision in the law since September 1, 2019, for granting benefits at standard benefit level 2 to single persons living in communal accommodation was unconstitutional. In support of his claim and further detailed explanation, the plaintiff cited, among other things, relevant case law of the Federal Constitutional Court and an expert opinion from the German Caritas Association. The latter is problematic insofar as the legislature, without empirical basis for corresponding savings potential, assumes, among other things, supposed communities of shared fate, a pooling of resources, and financial synergies, which does not reflect the reality in refugee accommodations, as was further explained. No significant deviation has been demonstrated. Therefore, the benefits provided are clearly inadequate and fall below the constitutionally mandated minimum subsistence level, as was also further explained.
In the preliminary injunction proceedings S 12 AY 9/20 ER, simultaneously filed with the Kassel Social Court on March 28, 2020, the presiding judge of the chamber initially pointed out that, based on the wording of the law, the decision in dispute should not be objectionable. This was also independent of the fact that a claim for even temporary accommodation outside of communal housing – as raised by the plaintiff in light of the Covid-19 pandemic – would not be decided within the scope of the present proceedings, but would fall under the jurisdiction of the administrative courts. Furthermore, irrespective of the constitutional issues, it was stated, among other things, that the current general social situation with regard to the Corona pandemic, taking into further consideration the constitutional issues also seen by the presiding judge, could at least temporarily justify a higher level of benefits within the framework of a balancing decision, since even with the statements made by the defendant and the institution's operator in two newspaper reports, the existing contact restrictions would, at least in effect, preclude communal economic activity, unless it were actually practiced that way and not prevented by the institution's operator.
Subsequently, the presiding judge proposed the following (out-of-court) settlement to resolve the preliminary injunction proceedings S 12 AY 9/20 ER:
- "The respondent grants the applicant, without acknowledging any legal obligation and solely on the basis of the current effects of the Corona (Covid-19) pandemic, provisional benefits under the Asylum Seekers' Benefits Act (AsylbLG) from March 30, 2020 (date of receipt of application by the court), subject to repayment, until a decision is reached in the main proceedings (here, the decision on the applicant's objection to the decision of February 17, 2020), but initially no later than June 30, 2020, with corresponding credit given at standard benefit level 1 instead of standard benefit level 2.".
- The provisional higher benefit payment is contingent upon the applicant's actual stay in the communal accommodation xxx, xxx.
- If the objection is rejected before June 30, 2020, and a subsequent lawsuit is filed within the prescribed time limit, the provisionally higher benefit payment will continue until June 30, 2020 at the latest.
- The respondent shall reimburse the applicant for half of the necessary costs of the application proceedings.
- The application process is complete
After the plaintiff immediately agreed to the court's proposal, the defendant initially proposed an amendment. The court then explained to the defendant, among other things, that this proposed amendment was open to interpretation, would provoke further disputes for periods prior to June 30, 2020, and was therefore, in the court's view, not justiciable. It could not, therefore, be considered a mere change in wording. At the same time, the parties were, of course, free to reach an out-of-court settlement outside of the court's proposal.
The court further stated, among other things:
“The court’s proposal was based on the assumption that even if the contact ban were lifted on April 20, 2020, this would obviously have repercussions, possibly in the form of merely recommended contact restrictions, and therefore a provisional grant of benefits until June 30, 2020 at the latest, without further conditions, seemed appropriate.”
The latter is particularly relevant in light of the significant constitutional issues at hand, which the undersigned views similarly to the further social court rulings cited by the applicant. Reference is made in this regard, inter alia, to the decisions of the Social Court of Munich of February 10, 2020, S 42 AY 82/19 ER; the Social Court of Hildesheim of February 4, 2020, S 42 AY 201/19 ER; and the Social Court of Landshut. In the context of a balancing decision to be made, this would then potentially have to be considered in addition to the court's proposal of April 2, 2020. The fact that such a balancing decision takes precedence over a referral to the Federal Constitutional Court, at least in preliminary legal protection proceedings, was recently expressly confirmed by the Federal Constitutional Court in its decision of 26 February 2020, 1 BvL 1/20, with all of the aforementioned decisions www.sozialgerichtsbarkeit.de available
At the same time, it is not taken into account that the court's proposal falls far short of the aforementioned case law, which is also and especially addressed by the cost regulation in point 4 of the proposal, and that the applicant would then no longer be adhering to his maximum position, which is at least covered by the aforementioned case law, due to his already given consent.
All in all, the court's proposal should have balanced the interests of the applicant and the respondent against each other, particularly in this respect and on the basis of the current overall societal situation
The defendant subsequently agreed to the aforementioned proposal without reservation, thereby concluding the preliminary injunction proceedings. Simultaneously, by decision dated April 22, 2020, the defendant implemented the aforementioned out-of-court settlement accordingly and granted the plaintiff the aforementioned benefits for the period from April 1, 2020, to June 30, 2020, but no later than until a decision is reached on his aforementioned objection, without acknowledging any legal obligation and subject to the reservation of the right to reclaim the benefits at standard benefit level 1.
Under the same conditions, and in accordance with the aforementioned out-of-court settlement, a further provisional approval was granted as before by decision of June 24, 2020, according to the standard benefit level 1 until September 30, 2020 at the latest.
The objection to the decision of February 16, 2020, was also rejected as unfounded by the Kassel Regional Council, the competent appeals authority, in a decision dated June 24, 2020. The extensive constitutional concerns raised regarding the relevant provision of Section 2 Paragraph 1 Sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) did not establish a claim by the plaintiff for higher benefits under standard benefit level 1. The constitutionally guaranteed right to a dignified minimum standard of living extends only to the absolutely necessary means to ensure both physical existence and a minimum level of participation in social, cultural, and political life (Federal Constitutional Court, decision of July 23, 2014 – 1 BvL 10/12-). Social benefits are only manifestly insufficient if it is obvious that, in their total amount, they cannot possibly guarantee that those in need in Germany can live a life that, under the aforementioned aspects, can be considered dignified. According to the jurisprudence of the Federal Constitutional Court, it is permissible for the legislature to base the level of standard benefits on the consumption patterns of the lower income group as determined in the Income and Expenditure Survey (EVS). Likewise, it is not constitutionally objectionable for the legislature to use the standard benefit for single-person households, and thus standard benefit level 1, as the starting point for determining the level of standard benefits for adults who share a household with other eligible adults, i.e., standard benefit level 2 for two eligible adults as spouses, civil partners, or in a cohabiting or civil partnership (Federal Constitutional Court, ibid.). The standard benefit for partners at standard benefit level 2 corresponds to 90 percent of the standard benefit for single persons at standard benefit level 1, and the standard benefit for dependents at standard benefit level 3 corresponds to 80 percent. As with the standard benefit calculation under the RVS (Regulation on Standard Benefits), the legislator assumed that two adults living in a household manage their resources 20 percent more efficiently than two single individuals and granted them both 180 percent of the standard benefit for a single person. In the case of partnerships, the savings were distributed equally between both partners, while in all other cases, the 20 percent savings were only considered for the dependent. Particularly in light of this, the derivation of standard benefit level 2 from standard benefit level 1 cannot be criticized as a failure to determine the standard benefit. The amendment was necessary because the standard benefit levels of the RBEG (Regulation on Standard Benefits) apply accordingly to recipients of analogous benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 28, 28a, and 40 of the German Social Code, Book XII (SGB XII), and the RBEG does not include a specific standard benefit level for individuals in collective accommodations. The legislator assumes that even after the waiting period of 15 (now 18) months, cost savings resulting from shared living arrangements will persist even after the transition to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). It should also be noted that, since January 1, 2020, even for adults with disabilities who do not live in an apartment but are provided with personal living space alone or with one other person and additional shared living space with other people, the standard benefit level 2 applies accordingly, according to Section 8 Paragraph 1 Sentence 2 of the Standard Benefits Act (RBEG). This introduces a new standard benefit level 2b – as stated in the explanatory memorandum to the draft law – to take into account the new forms of housing under the Federal Participation Act (BTHG) (Bundestag printed matter 18/9984, pp. 25 f., 85, 88). In these new forms of housing, which are similar to shared apartments, no one has their own self-contained apartment; instead, in addition to personal living space, the other functions of an apartment are fulfilled by shared spaces. The application of standard benefit level 2 is also justified here by potential savings through shared household management (BECKOKSOZR RBEG § 8 marginal note no. 11). This also means that there is no violation of the principle of equal treatment, since standard benefit level 2 is also provided for the comparable group of residents of special forms of housing within the meaning of the Federal Participation Act. Therefore, it cannot be assumed that the provision in question is manifestly unconstitutional; see the Social Court of Hildesheim (decision of December 13, 2019, S 42 AY 207/19 ER-) and the Higher Social Court of Baden-Württemberg (decision of February 13, 2020, L 7 AY 4273/ER-B). Even if one were to take a different view, based on some social court rulings in preliminary injunction proceedings, the plaintiff has not presented any facts from which an evident shortfall or emergency situation in his case could be discerned. This also applies to the current pandemic situation, as the plaintiff has neither asserted an additional need due to COVID-19 nor is such a need apparent. In particular, items such as disinfectants and face masks are provided by the district after consultation with the district. Insofar as the grounds for appeal refer to the transitional provision of Section 15 of the Asylum Seekers' Benefits Act (AsylbLG), this provision is not applicable. Section 15 of the AsylbLG was created solely as a transitional provision for the Second Act to Improve the Enforcement of the Obligation to Leave the Country and therefore applies exclusively to persons affected by the change in the waiting period from 15 to 18 months, but not to the standard benefit rates for single persons and persons living in communal accommodation that were amended as of September 1, 2019. (SG KS S 11 AY 19/19 ER). Furthermore, the initial and appeal authorities are prohibited from granting benefits higher than those stipulated by law. For adult benefit recipients housed in communal accommodation, a standard allowance at the level of standard allowance level 2 is established. The social welfare authorities are bound by this according to Article 20 Paragraph 3 of the Basic Law. The authority handling the matter has no power to declare the law invalid. Only the Federal Constitutional Court has the power to declare federal laws invalid (Article 100 Paragraph 1 Sentence 1 of the Basic Law) (Social Court Hildesheim, decision of May 5, 2020 – S 42 AY 86/20 ER-). Insofar as payments were made from April 1, 2020, to June 30, 2020, based on the settlement agreement and calculated according to standard allowance level 1, these were provisional payments expressly subject to a repayment reservation. The difference between the standard benefit levels 1 and 2 must therefore be repaid or offset against future benefits. The plaintiff also has no other entitlement to the higher benefits granted, as these were paid solely due to the "current effects of the Corona pandemic," without the plaintiff having even demonstrated any additional needs caused by the pandemic. Since the settlement leaves the original decision unaffected, the appeal must therefore be rejected in its entirety for the entire benefit period from January 1, 2020, to December 31, 2020.
After the defendant had previously granted the plaintiff analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from May 1, 2019 to December 31, 2019, in response to corresponding review applications by decision of July 7, 2020, the plaintiff, through his legal representative, filed a lawsuit with the Social Court in Kassel on July 10, 2020, against the decision of February 17, 2020, as amended by the appeal decision of June 24, 2020, concerning the granting of benefits from January 1, 2020. In this lawsuit, he maintains his claim for the granting of benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from January 1, 2020, based on the standard benefit level 1, for the aforementioned reasons and further explanations.
He states, among other things:
“The provision of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) is clearly unconstitutional, as it violates the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 GG (cf. Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175) and contravenes the general principle of equality, Article 3 Paragraph 1 GG. The fundamental right to a dignified minimum standard of living guarantees every person in need of assistance those material prerequisites that are essential for their physical existence and for a minimum level of participation in social, cultural, and political life (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, 1. LS).
The fundamental right applies equally to German and foreign nationals residing in the Federal Republic of Germany (Federal Constitutional Court, judgment of 18 July 2012 – Case No.: 1 BvL 10/10, BVerfGE 132, 134, 2nd LS).
To determine the scope of the claim, the legislator must assess all essential living expenses realistically and comprehensibly in a transparent and appropriate procedure based on reliable figures and conclusive calculation methods (Federal Constitutional Court of 09.02.2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, 3rd LS).
Consideration of the specific needs of certain groups of people when determining the minimum standard of living that ensures human dignity may only be given under strict conditions. Differentiation is only possible if their need for essential services differs significantly from that of other people in need, and this can be logically demonstrated in a transparent process based on the actual needs of that specific group (Federal Constitutional Court, judgment of July 18, 2012 – Case No.: 1 BvL 10/10, BVerfGE 132, 134, 3rd LS).
The fundamental right to a guaranteed minimum standard of living that ensures human dignity requires a review of the basis and methodology for calculating benefits to determine whether they meet the objective of this fundamental right. The protection of this fundamental right also extends to the procedure for determining the minimum standard of living because a review of the outcome against the standard of this fundamental right is only possible to a limited extent. In order to guarantee the comprehensibility of the scope of statutory assistance commensurate with the importance of this fundamental right, as well as its judicial review, the determination of benefits must be justifiable on the basis of reliable figures and sound calculation methods (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, para. 109).
Regarding the specific needs of those entitled to benefits pursuant to Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, the legislator has not conducted any investigations.
The needs of those entitled to benefits under Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) do not differ significantly from the needs of single adult benefit recipients living in an apartment as defined in Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act. Consequently, the legislator has not even attempted to demonstrate the discrepancy in a transparent procedure based on the actual needs of this specific group.
Rather, the legislator merely asserts that it can be assumed that communal accommodation results in savings for the residents of such accommodations that are comparable to those in couple households.
The concept of savings through shared finances, expressed in needs assessment level 2 for couples, can be applied to benefit recipients who share certain facilities (kitchen, bathrooms, common rooms, etc.) in communal accommodations. Here, too, the shared use of living space enables synergy effects, as certain household-related expenses are not borne by each benefit recipient individually, but are divided among the residents or shared by them collectively. This applies, for example, to personal media needs, since landline or internet connections are regularly provided for communal use in communal accommodations. Further savings result, under the aforementioned conditions, from the possibility of shared use or exchange regarding leisure, entertainment, and cultural needs (Section 9 of the 2013 Income and Expenditure Survey). Furthermore, accommodation in communal housing would result in savings on necessary food supplies (Section 1 of the 2013 Income and Expenditure Survey), for example, by purchasing food or at least basic kitchen supplies in larger quantities and using them together in communal kitchens. The resulting savings for adult residents of communal housing are comparable to those achieved in two-person households (Explanatory Memorandum, Bundestag Printed Matter 19/10052, p. 24).
When regulating the design of subsistence benefits, the legislature has discretion to make a standardized assessment of the circumstances, based on actual needs, to determine the necessary subsistence benefits, provided this assessment does not appear unreasonable. The Federal Government made this assessment based on the assumption that residents of communal accommodation can achieve the described cost savings, comparable to those of couples, through shared financial management. Those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation can be expected to manage their finances jointly, going beyond simply sharing accommodation-related expenses. These individuals, regardless of their origin, are in the same life situation during the asylum process and, in effect, form a community of shared fate. Their right of residence in Germany has not yet been definitively established. They participate in language courses and integration measures and, as newly arrived refugees, are in a comparable transitional situation that binds them together. Shared accommodation with other benefit recipients facilitates the swift processing of applications. In this exceptional temporal and spatial situation, they have a duty to make all reasonable efforts to get along with one another in the communal accommodation (explanatory memorandum, BT-Drucksache 19/10052, p. 24).
The reason given for the reduction in benefits is an alleged "solidarity in communal accommodation" and the resulting synergy and cost savings effects (explanatory memorandum, BT-Drucksache 19/10052, p. 25).
In fact, people living together do not benefit from cost savings comparable to those of couples living alone, because they do not manage their finances jointly. According to the Federal Social Court's rulings on cohabiting couples, the requirements for shared financial management extend beyond the shared use of a bathroom, kitchen, and possibly common areas (Federal Social Court, August 23, 2012 – Case No.: B 4 AS 34/12 R): Even the common practice in shared accommodation of jointly purchasing basic foodstuffs, cleaning supplies, and toiletries from a communal fund contributed equally by all residents does not, in itself, establish a shared financial community. The decisive factor is that the household is managed by both partners, with their respective contributions depending on their individual economic and physical capabilities. The actual management of the household and the covering of household expenses must be carried out jointly by both partners, which, however, does not mean that the financial contribution to the household or the value of the household management itself must be equal. An agreement between the partners on how they will divide the household responsibilities for the benefit of their relationship is sufficient.
A shared economic model, similar to that of partners, does not exist in refugee accommodations; corresponding opportunities to request support from other benefit recipients are not available. The legislature cannot refer benefit recipients to cost-saving measures that they cannot implement.
The German Caritas Association, based on its many years of experience working with refugees, also doubts that this form of accommodation will result in cost savings for the residents and considers the creation of a separate needs-based benefit category, which means a further reduction in benefits for those affected, to be unjustified. It can reasonably be expected that family members living together in a family unit will manage their finances together. Empirical evidence could demonstrate the associated cost savings (Federal Constitutional Court – Case No.: 1 BvR 371/11). In contrast, the potential for cost savings associated with accommodation in refugee shelters is neither empirically (sufficiently) proven nor plausible. The assumption that strangers, whose only connection is living in the anonymity of mass accommodations, would develop a sense of solidarity through a supposed "community of fate" (explanatory memorandum, p. 27), resulting in financial synergies for the residents, does not reflect the reality in refugee accommodations. Rather, a prerequisite for shared economic activity is a solid foundation of mutual trust. Whether this can develop between strangers under these circumstances is doubtful. The constant turnover in refugee accommodations alone typically prevents the development of such close relationships. The fact that residents regularly come from different regions and cultures, which can lead to communication difficulties and sometimes even conflicts, is a further obstacle to shared economic activity. Furthermore, according to the explanatory memorandum to the law, the expected savings are also supposed to result from the fact that "living space is shared, and household goods are purchased and used jointly" (explanatory memorandum, p. 23). However, benefits for this are not included in needs level 1, as they are provided separately (see Section 3, Paragraph 3, Sentence 3 of the Asylum Seekers' Benefits Act). Therefore, no savings can be achieved for those affected. The proposed reduction in benefits is also inappropriate with regard to necessary personal needs. Due to the receipt of benefits in kind, this amount is often the only way for individuals to make self-determined decisions about a part of their own lives and to experience autonomy (Statement by the German Caritas Association on the draft bill for a Third Act Amending the Asylum Seekers' Benefits Act of March 29, 2019).
No significant difference in needs has been demonstrated. On the contrary, everything suggests that the needs of those entitled to benefits under Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) do not differ from those of other single adult beneficiaries entitled to benefits under Section 2 of the AsylbLG.
The justification for the new standard benefit rate likely lies in the financial implications of the law. A model calculation of the effects of the reorganization of benefit rates and the increase in benefits has shown that the savings resulting from the reorganization (standard benefit rate 2 instead of standard benefit rate 1 for single benefit recipients in institutions, as well as the changes to benefit rates for adult benefit recipients without their own household) will amount to savings of approximately €40 million annually. The additional expenditures resulting from the adjustment of basic benefits based on the 2013 income and expenditure survey and its subsequent updates are also in the range of approximately €40 million annually (explanatory memorandum, Bundestag printed matter 19/10052, pp. 15-16). The new standard benefit rate is thus apparently intended to finance the adjustment of basic benefits that was neglected for three years.
Based on a need equivalent to the standard benefit level 1, which the legislator has determined for single persons, benefits amounting to only 90% of this subsistence-level level are clearly insufficient.
In the case of adult partners in a household receiving social assistance, the legislature may assume that joint management of finances results in savings and that, therefore, two cohabiting partners have a minimum financial need that is less than twice that of a single person managing their finances alone (cf. BVerfGE 8, 338 [342]). Since, due to their cohabitation, it can be assumed that both partners "share their finances," it is not objectionable that the legislature sets the same minimum need for both partners (Federal Constitutional Court, 09.02.2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, para. 121).
The requirement to cover the subsistence minimum for two partners, amounting to 180% of the corresponding requirement for a single person, is based on the modified difference calculation of the German Association for Public and Private Welfare, which formed the basis of Section 2 Paragraph 3 of the 1990 Standard Rate Ordinance. The German Association determined this value by selecting childless married couples with a net disposable income above the social assistance threshold as the reference group, determining their standard benefit-relevant consumption according to the same procedure as for a single person (i.e., considering only the individual expenditure items in the individual categories of the income and expenditure survey that were also considered for a single person), and then calculating the difference between the amounts for married couples and single persons. This method is suitable for determining the subsistence level of partners living in a household without children (cf. BVerfG of 09.02.2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, para. 155).
However, it has no bearing on the needs of those entitled to benefits within the meaning of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), because their specific needs were not determined and no data on the specific needs of this group of people can be obtained from the evaluations of the income and expenditure survey (cf. regarding the failure to determine child-specific needs in the area of the German Social Code, Book II (SGB II), Federal Constitutional Court decision of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, paragraphs 156 et seq.).
There is no plausible evidence to support the assumption that those entitled to benefits under Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) manage their finances jointly like partners in a household receiving benefits. They are also not mutually obligated to do so. There is no possibility of demanding corresponding support from other benefit recipients.
Rather, no differences in need are apparent compared to single adults entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) who live in an apartment as defined in Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act, or compared to single adults entitled to benefits under Book XII of the German Social Code (SGB XII) who live in accommodation that is not communal accommodation as defined in Section 53 Paragraph 1 of the Asylum Act or a reception facility as defined in Section 44 Paragraph 1 of the Asylum Act (e.g., homeless shelters), which could justify unequal treatment. These groups of people are treated more favorably than the plaintiff without any sound justification, despite having the same needs. Furthermore, a violation of the principle of equality under Article 3 Paragraph 1 of the Basic Law (GG) also arises from the fact that, despite evident differences in need, the plaintiff receives benefits at the same level as spouses
Furthermore, the plaintiff cites supporting case law from the social courts, including, but not limited to, the Social Court of Landshut (decision of October 24, 2019, S 11 AY 64/19 ER), the Social Court of Freiburg (decision of December 3, 2019, S 9 AY 4605/19 ER), the Social Court of Hanover (decision of December 20, 2019, S 53 AY 107/19 ER), the Social Court of Leipzig (decision of January 8, 2020, S 10 AY 40/19 ER), the Higher Social Court of Saxony (decision of March 23, 2020, L 8 AY 4/20 B ER), the Social Court of Frankfurt am Main (decision of January 14, 2020, S 30 AY 26/19 ER), and the Social Court of Dresden (decision of February 4, 2020). 2020, S 20 AY 86/19 ER). Furthermore, a personal statement regarding cohabitation in the communal accommodation he occupies.
The plaintiff requests (in essence)
that the decision of February 17, 2020, as amended by the appeal decision of June 24, 2020, be modified and that the defendant be ordered to grant the plaintiff benefits as a single adult under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 from January 1, 2020, until provisionally December 31, 2020, taking into account the payments already granted to him.
The defendant requests
that the action be dismissed.
The defendant maintains the contested decisions. He refers essentially and with further explanation to the statements in the appeal decision. Furthermore, he argues that he was also entitled in this case to recalculate the plaintiff's benefit entitlement pursuant to Section 9 Paragraph 4 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), for the period from January 1, 2020, deviating from the benefits granted by the decisions issued up to that point for the same period. The necessary significant change in the legal circumstances occurred through the introduction of, among other things, Section 2 Paragraph 1 Sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) by the law of August 13, 2019, effective September 1, 2019. Subsequently, Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Needs Assessment Act (RBEG) shall apply accordingly to persons entitled to benefits analogously pursuant to Section 2 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG), a standard need in the amount of standard need level 2 shall be recognized for each adult person. The plaintiff did have a legal entitlement to analogous benefits during the period in dispute, taking into account a standard benefit level of 2, but not, as under the legal situation applicable until August 31, 2019, under standard benefit level 1. Contrary to the opinion of the plaintiff's representative, the transitional provision of Section 15 of the Asylum Seekers' Benefits Act (AsylbLG), introduced by the law of August 21, 2019, with effect from August 21, 2019, does not apply in this respect (see Higher Social Court of Baden-Württemberg, decision of February 13, 2020, L AY 4273/19 ER-B; Social Court of Landshut, decision of October 24, 2019, S 11 AY 64/19 ER). The defendant further argues that for those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) to whom, until August 21, 2019, the Social Code, Book XII (SGB XII) was to be applied accordingly pursuant to Section 2 Paragraph 1 of the AsylbLG, Section 2 of the AsylbLG, as promulgated on August 5, 1997 (Federal Law Gazette I, p. 2022), most recently amended by Article 4 of the Act of July 17, 2017 (Federal Law Gazette I, p. 2541; 2019 I, p. 162), should continue to apply. The defendant further explains that there are no constitutional grounds to a different conclusion, as the benefits under standard benefit level 2 for adult beneficiaries housed in communal accommodation are not manifestly insufficient. The plaintiff's fundamental right to a dignified minimum standard of living is therefore not violated, as the Baden-Württemberg State Social Court (LSG) ruled in its aforementioned decision of February 13, 2020, and as further explained in the appeal decision.
For further details, in particular for the further submissions of the parties, reference is made to the content of the entire document; reference is also made to the administrative files of the defendant, the essential content of which relating to the present legal disputes was likewise the subject of the decision-making process, whereby the parties expressly agreed to a decision by the Chamber without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG).
REASONS FOR DECISION
The legal dispute could be decided by the chamber without an oral hearing by judgment, after the parties had expressly agreed to this beforehand (§ 124 para. 2 SGG).
The action is admissible. In particular, it was filed in due form and time before the competent court (§§ 78, 90 SGG) and was correctly and exclusively admissible not solely as a pure action for annulment, but as a combined action for annulment and performance. This is without prejudice to the defendant's arguments regarding § 48 SGB X, after the decision of December 16, 2019, had initially been superseded to the detriment of the plaintiff by the decision of November 1, 2019, by which the plaintiff was granted benefits under § 1a AsylbLG from November 1, 2019, to April 30, 2020, based on standard benefit level 1; However, with the further amendment notice of February 17, 2020, which is the subject of this dispute, this notice was not only partially revoked retroactively from January 1, 2020, but the plaintiff was also granted completely different and overall higher benefits than before until December 31, 2020, starting from January 1, 2020, namely as so-called analogous benefits according to § 2 AsylbLG in the amount of €355.58 per month. The contested decision of February 17, 2020, regarding these benefits was the first decision ever made. Therefore, it is irrelevant whether other benefits had previously been granted according to standard benefit level 1, while the benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) are now granted according to benefit group 2. It is also irrelevant that the decision of December 16, 2019, which was subsequently revoked in its entirety by the aforementioned decision of July 7, 2020, did not initially, and at least with regard to the period from November 1, 2019, to April 30, 2020, merely interfere with the decision of November 1, 2019, in the sense of Section 48 of the German Social Code, Book X (SGB X), which had already granted ongoing benefits until April 30, 2020, under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) based on standard benefit level 1, but rather in the sense of Section 45 of the German Social Code, Book X (SGB X), since even at that time, if According to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), at least according to the wording of the law, benefits should have been granted only at the standard benefit level 2; therefore, the decision of November 1, 2019, was unlawful from the outset, and the decision of December 16, 2019, did not meet the legal requirements for a decision to be issued pursuant to Section 45 of the German Social Code, Book X (SGB X).
The action is ultimately well-founded.
The decision of February 17, 2020, as amended by the appeal decision of June 24, 2020, is unlawful insofar as the defendant granted the plaintiff benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) solely on the basis of standard benefit level 2, effective January 1, 2020. Instead, taking into account the payments already granted to him concurrently, the plaintiff is entitled to benefits under Section 2 of the AsylbLG at standard benefit level 1 from January 1, 2020, until provisionally December 31, 2020, so the defendant was ordered to pay accordingly. This is because, in accordance with the ruling of the Social Court of Landshut (judgment of October 14, 2020, S 11 AY 39/20, juris), Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in a manner consistent with the constitution, such that those entitled to benefits must actually live together with at least one other person, and compatibility with the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law), in particular with the procedural requirements of the Federal Constitutional Court, can only be assumed, among other reasons, through such a constitutionally compliant interpretation of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act in the version of August 15, 2019.
The adjudicating chamber first points out that its own previous case law, at least in preliminary legal protection proceedings (decision of July 13, 2020, S 12 AY 20/20 ER, legally binding), is consistent with the constitutional court rulings cited here by the plaintiff in the present legal dispute regarding the requirements for the content and scope of subsistence-level benefits and the determination of a dignified minimum standard of living, as well as the statement by the German Caritas Association on the draft bill for a Third Act Amending the Asylum Seekers' Benefits Act of March 29, 2019, also cited by the plaintiff in the present legal dispute, and beyond the aforementioned social court rulings (e.g., Social Court Landshut, decision of October 24, 2019, S 11 AY 64/19 ER; Social Court Oldenburg, decision of June 9, 2020, S 25 AY 21/20 ER), and in this respect also with the Higher Social Court of Mecklenburg-Western Pomerania. (Decisions of May 11, 2020, L 9 AY 22/19 B ER and of June 10, 2020, L 9 AY 22/19 B ER, juris) raised significant concerns regarding the constitutionality of the benefit levels regulated in Section 3a Paragraph 1 No. 2 Letter b and Section 3a Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) – with the same legal effects as in the present case – for adult benefit recipients without partners who are accommodated in reception centers, communal living arrangements, or comparable accommodations. This also applies insofar as, as the Higher Social Court of Mecklenburg-Western Pomerania held, a constitutionally compliant interpretation of the provision requires that, as an unwritten element of the offense, the actual and verifiable communal household management of the benefit recipient with other persons accommodated in the communal accommodation is presupposed, for which the objective burden of proof (and, in preliminary injunction proceedings, the burden of presentation) lies with the benefit provider. The constitutional concerns, with a resulting higher entitlement to benefits, would then be shared, at least in preliminary legal protection, not only by the Social Court of Landshut, but also by the Social Court of Frankfurt, decision of January 14, 2020, S 30 AY 26/19 ER, juris, and by the Social Court of Freiburg (Breisgau), decisions of December 3, 2019, S 9 AY 4605/19 ER, juris and of January 20, 2020, S 7 AY 5235/19 ER, juris). The Munich Social Court (decision of February 10, 2020, S 42 AY 82/19 ER) also held that the legislative construction of Section 3a Paragraph 1 No. 2 b), Paragraph 2 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) raises several difficult and unresolved constitutional questions. Differences in benefits between those entitled to benefits under the AsylbLG and those entitled to benefits under Book XII of the German Social Code (SGB XII) are only justified if and insofar as the needs of the two groups have been properly determined in a transparent process. However, in this case, such a survey of the consumer expenditures of those entitled to benefits under the AsylbLG is precisely what is lacking. Without such a survey, the legislator's blanket assumption that unrelated individuals regularly manage their finances together like spouses or partners in a non-marital cohabitation appears untenable. Synergy effects might not be achieved in some cases if other residents have been assessed as having limitations on their entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) or if they receive benefits at lower standard rates. Furthermore, communal accommodations typically house people from different nations and cultural backgrounds who are strangers to one another. Therefore, it is likely that, given the generally limited benefits provided under the Asylum Seekers' Benefits Act, there will be no special sense of closeness or trust among the residents, which would normally form the basis for shared financial management.
In its decision of May 19, 2020 (S 90 AY 57/20 ER, juris), the Berlin Social Court further held that the provisions of Section 3a Paragraph 1 No. 2 Letter b and Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in a manner consistent with the constitution during the period of contact restrictions to contain the coronavirus pandemic (SARS-CoV-2 Containment Measures Ordinance; juris: CoronaVV BE 3). This interpretation must include the unwritten requirement that the beneficiary be able to reasonably share a household with others housed in the communal accommodation. If this is not the case, the beneficiary is entitled to benefits at the level of the standard benefit rate for this reason alone.
All this, after our own review, also in the aforementioned proceedings S 12 AY 20/20 ER, with the consequence that, at least within the framework of a balancing of interests, the respondent in those proceedings was further obligated to grant the applicant in those proceedings benefits on the basis of standard benefit level 1 instead of standard benefit level 2 from the date of receipt of the application until the decision in the main proceedings. In this respect, the Chamber adopted the aforementioned constitutional concerns raised by the applicant in that case regarding the provisions of Section 3a Paragraph 1 No. 2 Letter b and Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) and further stated that, in the Chamber's opinion, there was also reason to believe, as the Frankfurt Social Court (decision of January 14, 2020) had ruled, that the lower benefit level according to standard benefit level 2 would not cover the socio-cultural/humane minimum standard of living of the applicant in that case, which is protected by the fundamental right in Article 1 Paragraph 1 of the Basic Law and which also includes him in his capacity as an asylum seeker. On the other hand, a violation of the principle of equality under Article 3 Paragraph 1 of the Basic Law is likely, because there are compelling reasons to believe that the needs of residents of collective accommodations or communal accommodations within the meaning of Section 53 Paragraph 1 of the Asylum Act are not comparable to those of life partners or partners in cohabiting relationships, and thus the legislator treats unequal situations equally in Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act. According to the aforementioned provision, Section 28 of the German Social Code, Book XII (SGB XII), in conjunction with the Standard Needs Assessment Act and Sections 28a and 40 of the SGB XII, shall apply mutatis mutandis to beneficiaries under Section 2 Paragraph 1 Sentence 1, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or in a reception facility under Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard need in the amount of standard need level 2 shall be recognized for each adult person (No. 1). This meant that the single applicant in question was treated, with regard to the standard benefit level 2 applicable to him, like a partner in a marital or cohabiting relationship, even though the explanatory memorandum to the law shows that no assessments of the specific needs of those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) living in collective or communal accommodations preceded the new legislation. Instead, the legislature simply assumed that communal accommodation would result in the same cost savings for residents of such accommodations as would be the case for couples living together. The necessary balancing of interests and consequences, therefore, leads – in preliminary legal proceedings – to the conclusion, as further explained above, that the applicant's interest in securing his minimum subsistence level, while respecting the principle of human dignity, should be given greater weight than the fiscal interest of the respondent in avoiding potentially unjustified benefit payments.
The adjudicating chamber, even when composed of lay judges, continues to expressly adhere to all of this, whereby an application of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the interpretation of the defendant, as interpreted by the Social Court of Landshut (as above) and the Higher Social Court of Mecklenburg-Western Pomerania (decisions of May 11, 2020, L 9 AY 22/19 B ER and of June 10, 2020, L 9 AY 22/19 B ER, juris), as well as by the overwhelming majority of the aforementioned social court case law, would, in the chamber's opinion, be unconstitutional. However, the chamber is not prevented from such a constitutionally compliant interpretation and is instead obligated to refer the legal dispute to the Federal Constitutional Court pursuant to Article 100 of the Basic Law (regarding the priority and admissibility of a constitutionally compliant interpretation by the specialized courts in case constellations of this kind, see Federal Constitutional Court, decision of October 1, 2020). 2020, 1 BvR 1106/20, juris and, moreover, among others, BVerfG, decisions of 26 February 2020, 1 BvL 1/20, juris, of 12 February 1992, 1 BvL 21/88 and of 12 October 2010, 2 BvL 59/06; furthermore, Hessian State Social Court, judgment of 1 July 2020, L 4 SO 120/18 –, juris).
The Landshut Social Court (as above) further explains:
“According to the ruling of the Federal Constitutional Court of July 18, 2012 (BVerfG - 1 BvL 10/10 -, BVerfGE 132, 134-179), the amount of benefits must be determined in a transparent and appropriate procedure based on actual need, covering all essential living expenses. Differences in benefits between those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) and those entitled to benefits under the German Social Code, Book II and XII (SGB II and XII), are only justified if and to the extent that different needs of the two groups have been established and substantiated. The needs of the benefit recipients are decisive for both the assessment of needs and the provision of benefits. The legislature was entitled to assume that expenses are saved through shared finances and that, therefore, two partners living together have a minimum financial need that is less than twice that of a single person. Since, due to cohabitation, it can be assumed that both partners manage their finances ‘from one pot,’ It is not objectionable that the legislature assumes an equal level of need for partners. An equal division of the reduced shared needs, unlike the principle of the head of household previously practiced in social assistance law, complies with Article 3 Paragraph 2 of the Basic Law (Federal Constitutional Court, Judgment of February 9, 2010 – 1 BvL 1/09 –, BVerfGE 125, 175-260, para. 154, confirmed by the Federal Constitutional Court, Decision of July 23, 2014 – 1 BvL 10/12 –, BVerfGE 137, 34-103, para. 100).
According to the explanatory memorandum to the law, standard benefit level 2 only adopts the previous regulation for couples in the version of Section 8 of the Standard Benefit Remuneration Act (RBEG) valid until December 31, 2016, according to which both adults each receive 90% of the standard benefit rate. Couples include not only married couples and partners, but also cohabiting couples and registered civil partnerships (Gutzler in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd ed. 2014, Section 8 RBEG 1st revision, para. 15). This potential for savings arises from the fact that partners in shared households share living space, and therefore the housing costs per partner are significantly lower than in single-person households. The amount of the standard benefit level is determined by whether various household goods are jointly acquired and used, and whether consumables are purchased jointly. Against this background, it is appropriate to continue setting the standard benefit level 2 for partners living in the same residence at an amount corresponding to 90 percent of the standard benefit level. This is implemented through the provision in paragraph 1, number 2 for standard benefit level 2 for spouses, registered partners, and partners living in a marriage-like or civil partnership-like relationship. Due to the partnership-like nature of their cohabitation, it is generally assumed that these couples share household-related consumer expenditures (Bundestag printed matter 18/9984, pp. 85f).
The legislature did not conduct its own survey of the consumer spending of benefit recipients under the Asylum Seekers' Benefits Act (AsylbLG). It was stated that any specific consumption patterns of benefit recipients under the AsylbLG that deviate from those used as the basis for the income and expenditure survey are "not capable of being reliably determined and estimated" or "not plausibly substantiated" (draft bill, printed document 18/2592 of September 22, 2014, pp. 21ff). Accordingly, the legislature decided to calculate the needs of benefit recipients under Section 1 of the AsylbLG analogously to the needs of benefit recipients under the German Social Code, Book XII (SGB XII) or Book II (SGB II). This decision, in its implementation of the legal provisions, must be acknowledged.
It is clear that, according to the legislator's findings, the reduction of standard benefit rates to 90% compared to single individuals presupposes cohabitation, partnership, and shared finances. It appears impossible that unrelated persons in communal accommodation would regularly meet these three criteria without considering individual circumstances.
The composition and amount of necessary personal needs, and thus the cash allowance, are determined under the Asylum Seekers' Benefits Act (AsylbLG), as well as under the German Social Code, Book II (SGB II) and Book XII (SGB XII), based on the 2013 Income and Expenditure Survey (EVS 2013). In this survey, the legislature first defined what constitutes the socio-cultural subsistence minimum and then used a statistical model to determine household expenditures for these relevant consumer goods. According to this model, the standard allowances were calculated based on empirically determined consumer expenditures and the legislature's decisions regarding their relevance for guaranteeing a dignified subsistence minimum for the individual household constellations under consideration. The legislature stipulated that the standard allowances should be aligned with the consumption levels of other households with lower consumption levels.
The calculated consumption expenditures of the reference households for individual goods and services, which have been defined by the legislator as relevant to standard needs, each result in a total sum of the consumption expenditures required to guarantee the minimum subsistence level.
This sum represents the monthly payment amount. The recipients are responsible for deciding how to use this monthly amount.
The legislator's decision regarding which consumer expenditures are considered for calculating standard benefit rates is not intended to preempt individual decisions about how to use the monthly budget. Consequently, the calculation of standard benefit rates does not determine what benefit recipients will use the payment for or to what extent. Only the budget amount is determined according to the statistical model when calculating standard benefit rates.
The logic of the statistical model lies precisely in the fact that, in reality, the amounts allocated for each standard-benefit-relevant consumer expenditure are not exactly as calculated, but rather that actual consumer expenditure may deviate from these figures in individual cases. The only decisive factor is that the total budget is sufficient to cover consumer expenditure and guarantee a dignified minimum standard of living.
Inevitably, any additional expenditure compared to the average expenditures included in the calculation must be offset by reduced expenditures elsewhere. The individual composition of consumer spending varies from month to month due to differing developments and the unavoidable need to set priorities (for all of this, see draft bill, printed document 18/2592 of 22 September 2014, pp. 21ff; draft bill, printed document 17/3404 of 26 October 2010, p. 51).
The legislator therefore assumes that the decisive factor is not whether the individual items considered are specifically sufficient to cover the respective needs, but rather whether the total amount is sufficient to cover the socio-cultural minimum subsistence level. It has already been taken into account that not every person has all the individual consumption expenses considered in every month. It must therefore also be considered that fellow residents of the applicant's communal accommodation may have individual needs that they wish and are permitted to cover independently with the funds received. Furthermore, it is unclear what benefits the other residents of the applicant's communal accommodation actually receive. It is likely that some of the reduced basic benefits are subject to eligibility restrictions under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). Additionally, it is unclear whether fellow residents are only entitled to benefits under Section 3 of the AsylbLG or according to standard benefit levels 3-6, or whether they also receive benefits in kind or income
There is a lack of empirical studies demonstrating that living together in communal accommodation alone results in shared economic activity that produces the savings and synergy effects proven in couple households (cf. Social Court Landshut, decision of October 24, 2019 – S 11 AY 64/19 ER –; Higher Social Court Mecklenburg-Vorpommern, decision of June 10, 2020 – L 9 AY 22/19 B ER –; Social Court Freiburg (Breisgau), decision of December 3, 2019 – S 9 AY 4605/19 ER –; Social Court Hannover, decision of December 20, 2019 – S 53 AY 107/19 –; Higher Social Court of Saxony, decision of March 23, 2020 – L 8 AY 4/20 B ER –; Social Court Frankfurt a. M., decision of 14.01.2020 – S 30 AY 26/19 ER -; SG Freiburg (Breisgau), decision of 20 January 2020 – S 7 AY 5235/19 ER -; SG Munich, decision of 10 February 2020 – S 42 AY 82/19 ER -; SG Berlin, decision of 19 May 2020 – S 90 AY 57/20 ER -).
It may be plausible that "family members living together in a household" are in such a "close relationship" to one another that they generally manage their finances "from a common pool" (cf. BVerfGE 75, 382 <394>; 87, 234 <256>; BVerfG, decision of July 27, 2016 – 1 BvR 371/11 –, BVerfGE 142, 353-388, para. 53). Without such a close relationship, a general joint management of finances is not sufficiently plausible. The Federal Government also proceeds on this basis: According to the explanatory memorandum to the Act on the Determination of Standard Needs and on the Amendment of the Second and Twelfth Books of the Social Code, a reduced need is indeed presumed for adults who do not live alone due to their cohabitation with others. However, they are still assigned the standard allowance for single persons, "because the reduced allowance cannot be sufficiently quantified for all conceivable scenarios." An exception to this is made for couples whose cohabitation is characterized by shared finances, for which household savings must be assumed even in the general assessment (BT-Drs. 18/9984).
Even when living together in communal accommodations, a general reduction in need cannot be sufficiently quantified. A close relationship comparable to that between couples is not inherently present. Unlike people living together in a partnership or adult children living with their parents, benefit recipients living in communal accommodations have not voluntarily chosen to live with other people. Benefit recipients are assigned to a specific communal accommodation by the responsible authority and, if necessary, within that accommodation (by the operator), to a specific residential unit.
The allocation is at the discretion of the authority or operator. Ideally, it is based on countries or regions of origin, but there is no entitlement to this. It is not certain, and rather unlikely, that individuals who are required by the responsible authority or the operator of a communal accommodation facility to share certain premises will generally develop a close relationship that allows for shared financial resources (Saxony State Social Court, decision of March 23, 2020 – L 8 AY 4/20 B ER –; Munich Social Court, decision of February 10, 2020 – S 42 AY 82/19 ER –).
Such a close relationship does not arise simply from the fact that the individuals concerned "find themselves in the same life situation in the asylum procedure, regardless of their origin," and "essentially form a community of fate," as stated in the explanatory memorandum to the law (BT-Drs. 19/10052, p. 24). The general assumption that persons living in collective accommodations are in the same life situation is incorrect (cf. Social Court Frankfurt, decision of January 14, 2020 – S 30 AY 26/19 ER –; Social Court Hanover, decision of December 20, 2019 – S 53 AY 107/19 –; Higher Social Court Mecklenburg-Western Pomerania, decision of June 10, 2020 – L 9 AY 22/19 B ER –). Communal accommodations house individuals with varying residency statuses, different prospects of remaining in Germany (depending, among other things, on their individual history of persecution, country of origin, education, etc.), and different social welfare situations (e.g., recipients of analogous benefits under Section 2 of the Asylum Seekers' Benefits Act, basic benefits under Section 3 of the Asylum Seekers' Benefits Act, or those affected by benefit restrictions under Section 1a of the Asylum Seekers' Benefits Act). It is not apparent why strangers who happen to be in the same accommodation should always be expected to share expenses (cf. Social Court of Hanover, decision of December 20, 2019 – S 53 AY 107/19 –; Higher Social Court of Mecklenburg-Western Pomerania, decision of June 10, 2020 – L 9 AY 22/19 B ER –). The application of standard benefit level 2 cannot be justified simply by arguing that it is "possible and reasonable" for benefit recipients to achieve the "described savings" and that "shared expenses" are "expected" of them. This "obligation," assumed by the legislature, to make all reasonable efforts to get along with one another in communal accommodation, does not, in any case, take into account the actual need for accommodation. It is not the possibility of meeting needs, but rather the actual meeting of needs that cannot be disregarded in the case of individuals housed in communal accommodation through a value judgment. The fact that placement in communal accommodation, unlike in ordinary shared apartments, is not voluntary, argues against generally expecting those affected to manage their finances collectively.
Furthermore, the non-recognition of individual needs, which is solely based on an obligation to share resources, cannot be tenably justified because it is impossible for the individual to fulfill this obligation on their own. Rather, they are dependent on the cooperation of the other people living in the communal accommodation to actually achieve the cost savings, without having a legal right to demand such cooperation from them. In this respect, too, there is a difference compared to people living in a partnership. The latter at least have the option of leaving the communal accommodation and thereby triggering the application of the RBS 1 (Standard Benefits Act 1). Those receiving benefits who are involuntarily housed in communal accommodation do not have this option.
Section 2, paragraph 1, sentence 4, number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version of August 15, 2019, can be interpreted in a manner consistent with the constitution to mean that those entitled to benefits actually share a household with at least one other person. The fundamental presumption of the constitutionality of a law implies the requirement that, in cases of doubt, a law be interpreted in a manner consistent with the constitution. Respect for the legislative branch demands that the will of the legislature be taken into account as far as possible within the bounds of what is constitutionally permissible. If, considering the wording, legislative history, systematic interpretation, and purpose of a statutory provision, different interpretations are possible, one of which would have to be rejected as unconstitutional, while at least one leads to a constitutionally compliant result, then it is not appropriate to declare the provision incompatible with the constitution.
The limits of constitutionally compliant interpretation arise from recognized methods of interpretation. An understanding of a legal norm that contradicts the clearly expressed will of the legislature cannot be justified even by means of a constitutionally compliant interpretation (BVerfGE 130, 372 <397 ff.>; see also BVerfGE 83, 201 <214 f.>; 86, 288 <320>; 122, 39 <60 f.>). A constitutionally compliant interpretation is also precluded if the provision lacks a sufficiently specific regulatory content intended by the legislature (see BVerfGE 107, 104 <128>).
Based on these principles, a constitutionally compliant interpretation of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) is both possible and required. The provision should therefore be understood to mean that actual cooperative economic activity takes place.
The wording of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not preclude such an interpretation, as the provision contains no conflicting regulation and refers to the German Social Code, Book XII (SGB XII). The legislative history and purpose of Section 2 AsylbLG do not reveal any contrary legislative intent. In particular, the explanatory memorandum to the law repeatedly and explicitly refers to actual shared economic activity (Bundestag Printed Matter 19/10052, pp. 23 et seq.). The very aim of the provision is to include any potential financial advantages of cohabiting persons. This aim is achieved by the interpretation adopted here. The constitutionally compliant interpretation adopted helps to avoid undue hardship in cases where those affected do not actually derive any economic advantages from cohabitation. Sufficient cases for the application of the regulation also remain
The adjudicating chamber adopts all of the above-mentioned statements by the chamber and the plaintiff after its own examination.
The Chamber is also convinced that the above statements are compatible with the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. This compatibility can only be achieved, if at all, through a constitutionally compliant interpretation of Section 3a Paragraph 1 Number 2b of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 Number 2b of the AsylbLG, or, in this case, Section 2 Paragraph 1 Sentence 4 Number 1 of the AsylbLG. According to this interpretation, the application of benefit level 2, as an unwritten criterion, requires the actual and verifiable joint household management of the benefit recipient with others housed in the collective accommodation. Therefore, it is necessary to examine on a case-by-case basis whether there is an "actual and verifiable financial participation in the (joint) household management," i.e., whether the benefit recipient lives and manages their finances with others (e.g., joint shopping and food preparation) and whether this results in lower needs, for example, for food. However, there are also rights to leisure, entertainment, and culture, whereby any doubts are resolved against the benefit provider under the Asylum Seekers' Benefits Act (AsylbLG) as the party bearing the objective burden of proof. (See also Frerichs in jurisPK-SGB XII, § 3a AsylbLG, paras. 40ff).
At the same time, the court is convinced by the personal statement submitted by the plaintiff that the plaintiff has not engaged in legally relevant joint financial management in the aforementioned sense since January 1, 2020, and that the corresponding presumption of the legislature is therefore refuted. Actions not aimed at achieving the aforementioned goal, as well as occasional and not continuous joint cooking, are insufficient for this purpose. Therefore, it cannot be assumed that the plaintiff is managing their finances from a single source and thereby achieving actual cost savings, as is the case in families, cohabiting couples, civil partnerships, shared households, or similar arrangements.
This is especially true in the context of the ongoing Covid-19 pandemic, which has been in effect since at least March 2020, and the contact restrictions imposed since then, including repeated lockdowns of varying scope, which should make this legally and practically impossible in the communal accommodation occupied by the plaintiff. The defendant himself does not even claim that this is the case, as this would ultimately reveal not only negligence on the part of the facility operator but also negligence on his own part.
The complaint was therefore to be granted.
The decision on costs follows § 193 SGG.
Because of the fundamental importance of the matter, the Chamber expressly admitted the appeal, which would otherwise be inadmissible due to the amount of the appeal value.
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