Social Court Kassel – Judgment of November 20, 2020 – Case No.: S 2 AS 271/17

VERDICT

In the legal dispute

1. xxx,
2. xxx,

Plaintiff,

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

Defendant,

The 2nd Chamber of the Social Court of Kassel, without oral proceedings, rendered the following judgment on November 20, 2019, through the presiding judge, Judge xxx, and the lay judges Ms. xxx and Mr. xxx:

1. The decision of April 26, 2017, as amended by the decision on the objection of May 22, 2017, is set aside, and the defendant is ordered to amend the decision of June 14, 2016, as amended by the amending decision of October 4, 2016, and to grant the plaintiffs benefits to secure their livelihood under the German Social Code, Book II (SGB II), for the period from July 1, 2016, to October 31, 2016, based on housing costs (gross rent excluding utilities) in the amount of €410.00 per month, and to grant the second plaintiff benefits to secure their livelihood under the German Social Code, Book II (SGB II), for the period from November 1, 2016, to December 31, 2016, based on a proportionate share of housing costs (gross rent excluding utilities) in the amount of €205.00 per month.
2. The defendant must reimburse the plaintiffs for the necessary extrajudicial costs.
3. The appeal is admitted.

FACTS

The parties are in dispute over the amount of housing and heating costs to be granted according to the provisions of the Second Book of the German Social Code (SGB II) and the concept used by the defendant to determine reasonable housing and heating costs. The period from July 1, 2016, to December 31, 2016, inclusive, is in dispute between the parties as part of a review procedure.

The first plaintiff, who was born on xx. xxx 1951, lived in a shared apartment with his son, the second plaintiff (born on xx. xxx 1994), during the period in question.

Plaintiff 1 received benefits from the defendant from 2010 until October 31, 2016. Plaintiff 1 now receives an old-age pension. Plaintiff 2 moved into his father's apartment in mid-2015. The two plaintiffs then lived together in the apartment until Plaintiff 2 moved to the jurisdiction of a different benefits provider on May 30, 2017.

During the period in question, the plaintiffs resided in an apartment in Eschwege. It was a three-room apartment with a kitchen and bathroom. The living space was 75 m²^.The gross rent was €410.00 (basic rent €310.00 plus €100.00 for utilities). During the period in question, the plaintiffs were required to make a monthly advance payment of €65.00 for gas heating costs.

The defendant informed the plaintiffs by letter dated September 21, 2015, that the current accommodation costs were not reasonable and that the reference rent according to the concept of the company Analyse & Konzepte for a two-person household in Eschwege (309.76 euros, updated at the end of 2015 to: 337.28 euros) was 337.28 euros.

Therefore, from April 2016 onwards, only the reasonable gross rent (excluding utilities) of €337.28 could be covered in addition to the actual heating costs.
The defendant provisionally granted the plaintiff benefits to secure his livelihood under the German Social Code, Book II (SGB II), by decision dated June 14, 2016. The benefit was granted provisionally because the second plaintiff had fluctuating income. In determining the benefits, the defendant considered housing costs of €337.28 per month and heating costs of €65.00 per month. By decision dated October 4, 2016, the defendant adjusted the benefit calculation. Based on this decision, the first plaintiff received benefits only up to and including October 2016. The second plaintiff also received benefits for November and December 2016. In calculating the benefits, the defendant continued to use a gross rent of €337.28 per month.
By letter dated January 22, 2017, the plaintiffs' attorney requested a review of the decisions pursuant to Section 44 of the German Social Code, Book X (SGB X), regarding the benefit period from July 1, 2016, to December 31, 2016 (for the first plaintiff, only until October 31, 2016). The grounds for the review request were that the plaintiffs should be granted higher housing costs, specifically in the actual amount incurred.
The defendant rejected the review request by decision dated April 26, 2017, with regard to the period from July 1, 2016, to and including December 31, 2016.
The plaintiffs' attorney filed an objection to this decision, which the defendant rejected by decision dated May 22, 2017.

The plaintiffs filed suit on May 29, 2017.

The plaintiffs are claiming higher housing costs, specifically the actual monthly housing costs of €410.00. The defendant is reducing the plaintiffs' housing costs, which he is obligated to cover under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), on the grounds of alleged unreasonableness. The defendant is basing his claim on an expert opinion from the Hamburg-based company "Analyse & Konzepte." This expert opinion, prepared for the defendant's area of ​​responsibility, is based on data from 2013 and applies to the period in dispute, 2016. However, the findings derived from this opinion have not yet been made available to either the undersigned or the plaintiffs in these proceedings and have therefore not been incorporated into the case. The plaintiffs' legal representative addressed this issue in his statement of claim, citing the Federal Social Court's jurisprudence on the concept of a sound legal concept. He argued that a market survey is necessary, and the defendant must provide further details regarding this. The specific local conditions of the housing market must be determined and taken into account in each case. The defendant should, if necessary, present further arguments and make a coherent concept the subject of his evidence. If he fails to do so, the housing benefit table, specifically the table values ​​in Section 12 of the Housing Benefit Act (as amended from January 1, 2009), should be applied. A 10% safety margin should be added to the values ​​in the housing benefit table. In this regard, the legal representative also refers to the case law of the Federal Social Court.

As part of his statement of defense, the defendant also submitted to the court the expert opinion of the company Analyse & Konzepte, as well as an overview of previous court decisions concerning concepts developed by the company "Analyse & Konzepte." The defendant stated that the plaintiffs' legal representative was already familiar with the concept from other proceedings. The defendant referred to the decision of the 8th Chamber of the Kassel Social Court, which had deemed the concept sound. Furthermore, reference was made to the additional overview of case law, which shows that other courts had also considered the concepts developed by "Analyse & Konzepte" to be sound.

The court consulted the expert report from the firm Analyse & Konzepte as well as the raw data for the proceedings. Specifically, this includes the concept for determining the appropriateness of accommodation costs in the Werra-Meißner district by Analyse & Konzepte (final report 2014) and the 2015 KdU (cost of accommodation) guidelines, an index update of the conclusive concept from 2013 (final report 2015). Furthermore, the raw data for the 2013 rent survey, the 2015 update, and the supplementary analysis for the 2015 update in the Werra-Meißner district (from 2017) were consulted.

Based on the submitted documents, the plaintiffs' legal representative further substantiated the claim. The expert opinion, he argued, ultimately did not meet the requirements established by the Federal Social Court for surveys to determine reasonable housing costs under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). For the plaintiffs' place of residence (Eschwege), the expert opinion ultimately provides no basis whatsoever for making the reductions to the plaintiffs' benefits under Section 22 Paragraph 1 SGB II with regard to housing costs. It was not a "coherent concept" for surveying the housing market within the defendant's jurisdiction.

According to the plaintiffs, the first point of criticism is the use of a comparable area. Analyse & Konzepte, in determining the reasonableness limit, assumed two housing market types and classified the entire Werra-Meißner district as a single comparable area. The very assumption underlying this classification—that the Werra-Meißner district should be considered a single comparable area—was based, as is typical for Analyse & Konzepte, solely on the one-and-a-half-hour travel time between the individual locations. The report assumes, without further explanation, that a travel time of up to one and a half hours is abstractly acceptable, merely pointing out that Berlin has a larger comparable area. This equal treatment of these structurally and economically very different living environments, as well as the blanket reference to Berlin, demonstrates that the specific local circumstances of the Werra-Meißner district were not addressed. The report lacks any further explanation regarding abstract reasonableness. The concept paper only provides exemplary explanations of specific reasonableness on page 13. However, these explanations of specific reasonableness, under the heading "homogeneous living and residential area," lead solely to the conclusion that such considerations can only be made within the framework of an individual case review. Consequently, these considerations had no bearing on the definition of the comparison area in this case. Therefore, limiting the definition of the comparison area to the sole criterion of travel time is insufficient. This cannot be inferred from the jurisprudence of the Federal Social Court. If one examines the transport connections in the Werra-Meißner district more closely than simply stating that all towns and villages can be reached within one and a half hours, it must be concluded that, abstractly speaking, maintaining the social environment is hardly possible, at least between individual towns and villages such as Großalmerode and Herleshausen or Neu-Eichenberg and Herleshausen. A journey between Kleinalmerode and Herleshausen takes at least two and a half hours by bus and at least two hours and 13 minutes by train. Furthermore, the plaintiffs argue that the existing concept fails to provide a more comprehensive and, above all, coherent subclassification of homogeneous living and residential areas, even by differentiating the Werra-Meißner district into two housing market types. In this regard, the plaintiffs critically refer to the statements in the expert opinion on pages 11 and 15. They contend that the housing market types themselves do not constitute an accurate subclassification. Moreover, it is evident that the housing market in the Werra-Meißner district cannot be determined based on the apparently assigned task. The criteria for the housing market types are thus presented rather arbitrarily in the expert opinion. While population development is cited as a direct indicator for defining the housing market, the expert opinion, in its conclusion on page 18, presents Neu-Eichenberg as an exception to the overall population trends. This means that a direct indicator would yield a different result in one-fifth of the combined localities. The assumption that the taxpayer's income alone could serve as a significant indicator for determining rent purchasing power is also incorrect. The lower rent purchasing power of social welfare recipients is completely disregarded here. Furthermore, the collected data dates back to 2007 and must therefore be considered completely outdated as of the reference date of January 1, 2013, for the survey of existing rents. Moreover, it should be noted that the report on pages 18-19 states that two-fifths (Neu-Eichenberg and Witzenhausen) of housing market type I have significantly higher incomes than the average income of the Werra-Meißner district, while three-fifths are at or slightly below the district average. Therefore, this indicator is unsuitable for the present classification not only because of its chosen form and the outdated data, but also because of its result. Furthermore, it should be considered that, on the one hand, the housing benefit classification was used as an indicator, while on the other hand, the expert opinion itself assumes on page 16 that a subdivision of the Werra-Meißner district based on the Housing Benefit Act is not productive, since the classification here is essentially based on deviations in population figures. It is also inexplicable that centrality was determined solely by the average travel time by car. As an interim conclusion, it must be stated that both the definition of the comparison area and the definition of the housing market types are flawed. These errors are fundamental and irreparable. The collected characteristics also do not meet the requirements of the Federal Social Court for determining rent and rent factors. Only the criteria of a bathroom and central heating were considered with regard to amenities. Other factors influencing rent were not taken into account. The definition of the adequacy limit within the lower price segment solely based on rent is therefore flawed. In addition, the plaintiffs criticized the collected data and the evaluation methodology. Furthermore, the plaintiffs argue that while Analyse & Konzepte did collect data on existing rents, they made a structural error in doing so. The questionnaire used for the survey failed to indicate whether the apartment in question was rented or vacant at the time of the survey. They also criticize the three-stage survey of existing rents: first, large landlords; then small landlords; and finally, the SGB II (Social Code, Book II) data set. The plaintiffs criticize the lack of a clear breakdown of the number of tenants in each of these three stages. They further argue that it is possible that affordable apartments were overrepresented in the data. Regarding the survey of advertised rents, the plaintiffs criticize the fact that supposedly substandard apartments were excluded solely through the extreme value cap. They also criticize the exclusion of a large portion of the housing market due to its allegedly non-public listing. Finally, they criticize the survey of newly acquired existing rents for its flawed methodology. Furthermore, owner-occupied and furnished apartments were not taken into account. Moreover, the analysis and concepts draw incorrect conclusions regarding the apartments supposedly available to benefit recipients. As a result, the report is not based on a coherent concept. This is primarily due to the improper definition of "residential locations" that cannot be assessed collectively. The underlying data is largely based on estimates and is not applicable to the Werra-Meißner district, and is also based on outdated average data from a nationwide survey conducted in 2006. The report also erroneously assumes that the housing standard can be determined solely based on the rent without further investigation. Consequently, the adequacy criteria are applied according to the values ​​in Section 12 of the Housing Benefit Act (WoGG), taking into account a possible 10% safety margin. Regarding the submitted raw data, it should be noted that neither the date of the offer nor its source can be determined from the respective summaries from 2013 and 2015. Therefore, the complete submission of the actual raw data is disputed. Furthermore, according to the submitted "index update," no new data collection took place; rather, the data from January 2013 was merely converted using the Consumer Price Index for Germany. The CPI (Consumer Price Index) used by the company Analyse & Konzepte is likely a so-called net rent index, which refers exclusively to apartments of around 70 m²^and small single-family homes of 100 m²^. Moreover, a net rent index is an index for existing rents and not for new contracts or advertised rents. Short-term changes in the real estate market are not reflected in the index. However, this should be irrelevant anyway, since Analyse & Konzepte does not want to apply the updating of existing rents based on the CPI, but instead has used an index for asking rents for updating based on an independently determined survey of offers.

The defendant forwarded the points raised by the plaintiff to the company Analyse & Konzepte, which then responded to the questions in August 2017. For details of the response, reference is made to pages 39-43 of the court file. The plaintiff still disputed that all raw data, including supporting evidence and sources, had been submitted in the court proceedings to date. The defendant expressly refuted this claim.

In April 2018, the defendant proposed suspending the proceedings in light of other pending legal disputes, including those before the State Social Court. The plaintiffs' legal representative rejected this request for suspension.

The court summoned the parties to an oral hearing on November 20, 2019, by summons dated October 8, 2019. It also obtained the files from proceedings 2 AS 266/17 and S 2 AS 147/17 for the present proceedings.

The defendant, in a written submission dated October 16, 2019, introduced the updated guideline values ​​into the legal proceedings. He referred to the decision of the Federal Social Court (BSG) of January 30, 2019, and the correction report issued by Analyse & Konzepte Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH, Hamburg, on the concept for determining the appropriateness of accommodation costs in 2013 and the update of the guideline values ​​for 2015, which entered into force on July 19, 2019. The BSG, in its decision of January 30, 2019, had explicitly pointed out the possibility of rectifying the discrepancy in the reference area regulation. This had now been achieved with the correction report, as four central areas of the Werra-Meißner district were now used as the four reference areas, with the plaintiffs' place of residence falling within reference area III (central area Eschwege). This results in a new monthly reference rent (gross rent excluding utilities) of 339.39 euros for a two-person household in the district town of Eschwege, which exceeds the previous reference rent of 337.28 euros determined by the cluster analysis declared invalid by the Federal Social Court by 2.02 euros per month.

The defendant has agreed to acknowledge an additional monthly payment of €2.02 for the disputed months of April 2016 to June 2016. The defendant has attached a correction report to his written submission (correction report on the concept for determining the appropriateness of accommodation costs 2013 and on the update of the guideline values ​​2015 from April 2019). Reference is made in this regard to pages 83 et seq. of the court file.

The plaintiffs' legal representative accepted the defendant's partial admission of liability on behalf of the plaintiffs by letter dated October 18, 2019.

Furthermore, the plaintiffs requested information on how many landlords were identified during the survey conducted by Analyse & Konzepte; how many, and especially which, landlords participated in the survey and how many apartments each participated in; how many smaller landlords participated in the survey; how many data sets were collected and how many usable data sets could be determined; how it was ensured that the Jobcenter data sets did not double-count with data already collected from large and small landlords; and according to which criteria the 999 rent values ​​from the Jobcenter data sample mentioned in the expert report were determined, and a breakdown of the answer according to the different comparison areas. In addition, the plaintiffs pointed out that the defendant had submitted a statement from Analyse & Konzepte indicating that more than 50% of the existing rents were taken from the Jobcenter data set. Therefore, the data could not be considered representative.

The defendant referred to a further statement from the company Analyse & Konzepte. Furthermore, the defendant's two appeals against the judgments of the Hessian State Social Court have not yet been decided. The defendant attached Analyse & Konzepte's statement on issues raised in parallel proceedings to his written submission. The court refers to pages 103 et seq. of the court file.

The defendant again suggested suspending the proceedings, but the plaintiffs did not agree.

The defendant responded to the questions raised by the plaintiffs' legal representative in a written submission dated November 13, 2019. The plaintiffs' place of residence, during the periods in question, is located in a central area as defined by the North Hesse Regional Plan, within comparison area III of the revised concept developed by the defendant's municipal authority for determining reference rents in the Werra-Meißner district, which is now subdivided into four comparison areas. For comparison area III, 1,066 relevant rent values ​​were collected. Of these, 420 were from institutional landlords, 351 from private landlords, and a further 295 from the SGB II (Social Code, Book II) dataset. Reference is made to the statement from Analyse & Konzepte dated August 21, 2019, which has already been submitted to the court file. The defendant's argument as to why their evaluation should not be representative for comparison area III is not convincing and cannot be derived from a decision of the Lower Saxony-Bremen State Social Court of April 2, 2019, which the plaintiffs frequently cite. In a letter dated November 18, 2019, the defendant supplemented his submissions with a further statement from the company Analyse & Konzepte dated November 15. In this regard, particular reference is made to a recent judgment of the North Rhine-Westphalia State Social Court of September 5, 2019 (Case No. L 7 AS 1327/17).

The court held an oral hearing with the parties on November 20, 2020. For further details, please refer to the minutes of the hearing. Further clarification of issues arose during the subsequent discussion of the proceedings.
The oral hearing was adjourned.

The plaintiffs request that
the defendant, by amending the decision of June 14, 2016 as amended by the decision of April 26, 2017 and again as amended by the appeal decision of May 22, 2017, be ordered to grant the plaintiffs the requested monthly benefits in the statutory amount, taking into account the legal opinion of the court.

The defendant requests
that the action be dismissed.

The parties were given another opportunity to submit written comments on the points discussed. In particular, the formation of the comparison area was discussed again. Furthermore, the defendant submitted the decisions of the Federal Social Court regarding the appeals against the judgments of the State Social Court that were not granted leave to appeal.

The defendant submitted a detailed statement on this matter in his written submission of December 11. In particular, he addressed the formation of comparison groups and the consideration of travel times once again. The defendant supplemented his submissions in his written submission of January 22, 2020.

In response to the court's inquiry of February 17, 2020, as to whether there was agreement to a decision without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Court Act (SGG), the plaintiffs, by letter from their legal representative dated February 25, 2020, and the defendant, by letter dated March 30, 2020, declared their agreement.

For further details of the facts and the legal arguments, reference is made to the court file as well as the administrative files, the statements submitted by the company Analyse & Konzepte and the files of the proceedings S 2 AS 147/17 and S 2 AS 266/17.

REASONS FOR DECISION

Due to the consent of the parties involved, the court was able to decide without an oral hearing in accordance with Section 124 Paragraph 2 of the Social Court Act (SGG).

The admissible claim is well-founded, as the plaintiffs have a right to reimbursement of their actual accommodation costs. The claim was to be interpreted as seeking reimbursement of the actual accommodation costs. The claim is therefore admissible as a combined action for annulment, performance, and enforcement pursuant to Section 54, paragraphs 1 and 4 of the Social Court Act (SGG) (regarding the admissible type of action for review applications: Federal Social Court (BSG), judgment of February 13, 2014, case no.: B 4 AS 22/13 R – juris para. 11; BSG judgment of December 12, 2013, case no.: B 4 AS 17/13 R, juris para. 12; BSG judgment of February 28, 2013, case no.: B 8 SO 4/12 R – juris para. 9) and is otherwise admissible. In particular, it was filed in due form and within the prescribed time limits (Sections 87, 90 SGG).

The subject of the legal proceedings is the decision of April 26, 2017, as amended by the decision on the objection of May 22, 2017, which relates to the review of the decision of June 14, 2016, as amended by the amending decision of October 4, 2016. The decisions were to be amended to the extent stated, as they were unlawful and infringed upon the plaintiffs' rights. The plaintiffs are entitled to the actual costs of their accommodation.

The plaintiffs have validly limited their claim to the subject matter of the dispute concerning the costs of accommodation and heating. The other separable provisions of the decisions in question have not been challenged. According to the established case law of the Federal Social Court, the benefits for accommodation and heating constitute separable provisions of the overall decision, without any further division into separate benefits for accommodation and heating being legally permissible (see, inter alia, Federal Social Court, judgment of December 12, 2013, case no.: B 4 AS 87/12 R, juris – para. 17; Federal Social Court, judgment of September 10, 2013, case no.: B 4 AS 4/13 R – juris para. 10; already Federal Social Court, judgment of November 7, 2006, case no.: B 7b AS 8/06 R – juris para. 18).

The defendant wrongly refused to review the decisions pursuant to Section 44 of Book Ten of the German Social Code (SGB X) for the period in dispute, as the plaintiffs are entitled to further housing costs. According to Section 40 Paragraph 1 Sentence 1 of Book Two of the German Social Code (SGB II) in conjunction with Section 44 Paragraph 1 Sentence 1 of Book Ten of the German Social Code (SGB X), an administrative act, even after it has become legally binding, must be revoked with retroactive effect if, in a specific case, it is found that the law was incorrectly applied or that the decision was based on facts that prove to be incorrect, and if, as a result, social benefits were wrongfully withheld. If the review is initiated by an application from the benefit recipient, this application generally triggers an obligation for the benefit provider to conduct a review. However, the application also defines the scope of the administration's review mandate with regard to whether the law was incorrectly applied or whether the administrative act was based on incorrect facts (Federal Social Court, Judgment of February 13, 2014, Case No.: B 4 AS 22/13 R – juris para. 13). The plaintiffs' review application was sufficiently specific. The plaintiffs identified the decisions submitted for review and provided details regarding the portion of the housing and heating costs under review. The review application, submitted in January 2017, also covers the period in dispute. Pursuant to Section 40 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), Section 44 of Book Ten applies, with the proviso that the four-year period stipulated in Paragraph 4 Sentence 1 is replaced by a one-year period. According to Section 44 Paragraph 4 of the German Social Code, Book X (SGB X), if an administrative act with retroactive effect has been revoked, social benefits are paid in accordance with the provisions of the special parts of this code for a maximum period of four years prior to the revocation. The date of revocation is calculated from the beginning of the year in which the administrative act is revoked. If the revocation is made upon application, the application replaces the revocation when calculating the period for which retroactive benefits are payable. Since the application was made in 2017, benefits are payable retroactively to the plaintiffs for one year from the beginning of 2017 – i.e., from January 2016 – insofar as they are covered by the review application. The review application in dispute covers the period from July 1, 2016, up to and including December 31, 2016.

The defendant incorrectly applied the law when granting benefits to secure the livelihood during the period in dispute, taking into account Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).

The plaintiffs are entitled to further housing costs, as the actual monthly housing costs of €410.00 (gross rent excluding utilities) must be covered. However, taking into account the partial acknowledgment of the claim made in the court proceedings, the defendant only granted the plaintiffs €339.39 per month for housing costs, or rather, used this amount as the basis for calculating benefits. Heating costs have already been covered in full.

The plaintiffs initially meet the eligibility requirements of Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). During the period in dispute, they had not yet exceeded the age limit of Section 7 Paragraph 1 Sentence 1 Number 1 in conjunction with Section 7a SGB II (for the first plaintiff, until October 31, 2016), were capable of working within the meaning of Section 7 Paragraph 1 Sentence 1 Number 2 in conjunction with Section 8 SGB II, and were in need of assistance within the meaning of Section 7 Paragraph 1 Sentence 1 Number 3 in conjunction with Section 9 SGB II, and had their habitual residence in the Federal Republic of Germany (Section 7 Paragraph 1 Sentence 1 Number 4 SGB II).

The defendant's concept for determining the appropriate level of accommodation and heating costs, and its subsequent implementation in a guideline, does not meet the requirements of the Federal Social Court for determining regionally appropriate accommodation costs based on a verifiable, coherent concept for data collection and analysis, and adherence to recognized mathematical and statistical principles. The defendant determined the appropriateness based on the concept for determining the appropriateness of accommodation costs in the Werra-Meißner district by the company Analyse & Konzepte (final report 2014) and the 2015 accommodation and heating cost guidelines, indexed update of the coherent 2013 concept (final report 2015).

Furthermore, the raw data for the 2013 rental value survey, the 2015 update and the supplementary evaluation for the 2015 update in the Werra-Meißner district from 2017 were used as a basis.

The Chamber considers the defendant's concept for determining the appropriateness of accommodation and heating costs to be unsuitable for determining the appropriate costs of accommodation and heating, since the comparison area to be established initially is not applicable to the original concept based on it (1.).

The Chamber is also not convinced of the plausibility of the concept for determining the reasonable costs of accommodation and heating by the correction reports submitted with the written submission of October 16, 2019, concerning the concept from 2013, as well as the update of the guideline values ​​from 2015 with the report from the company Analyse & Konzepte from April 2019, and the resulting improvement of the concept which, from the defendant's point of view, is sufficient (2.).

Due to a lack of specific information, the Chamber applies the jurisprudence of the Federal Social Court, according to which the values ​​of the housing benefit table established for Section 12 of the Housing Benefit Act (WoGG), taking into account a safety margin of 10%, can be used to determine the reasonable limit. The plaintiffs are entitled to the actual costs of accommodation, as the actual costs of accommodation are below this reasonable limit (3.).

1. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are reasonable. The reasonableness test limits the amount of reimbursable costs (Federal Social Court, Judgment of September 22, 2009, Case No.: B 4 AS 18/09 R – juris Rn. 12). The concept of "appropriateness," as an indeterminate legal term, is subject to unrestricted judicial review (established case law, see, for example, Federal Social Court [BSG], judgment of November 7, 2006, case no.: B 7B AS 10/06 R – juris; BSG, judgment of December 17, 2009, case no.: B 4 AS 27/09 R – juris para. 24; BSG, judgment of October 19, 2010, case no.: B 14 AS 50/10 R – juris; BSG, judgment of September 22, 2009, case no.: B 4 AS 18/09 R – juris para. 12; BSG, judgment of September 10, 2013, case no.: B 4 AS 4/13 R – juris para. 12; BSG, judgment of December 12, 2013, case no. B 4 AS 87/12 R – juris para. 19; BSG, Judgment of November 18, 2014, Case No.: B 4 AS 9/14 R –
juris). The assessment of appropriateness must be carried out according to uniform criteria, taking into account the general principle of equality, whereby, in order to specify the limits of appropriateness, an abstract assessment must be carried out in a first stage and a concrete-individual assessment in a second stage (BSG, Judgment of May 26, 2011, Case No.: B 14 AS 132/10 R – juris para. 17; BSG, Judgment of September 10, 2013, Case No.: B 4 AS 77/12 R – juris para. 18; BSG, Judgment of November 18, 2014, Case No.: B 4 AS 9/14 R – juris para. 13). Furthermore, accommodation needs, as part of a dignified minimum standard of living, must consequently be calculated in a transparent and appropriate procedure, i.e., realistically (see, most recently, Federal Social Court [BSG], judgment of September 10, 2013, file no.: B 4 AS 77/12 R – juris para. 19; Federal Social Court [BSG], judgment of November 18, 2014, file no.: B 4 AS 9/14 R – juris para. 13). There are no constitutional concerns regarding the use of the indeterminate legal concept of appropriateness and the requirements established by the Federal Social Court's jurisprudence for determining the limits of appropriateness – even considering the provision of subsistence benefits (see Federal Constitutional Court, Judgment of February 9, 2010, Case No.: 1 BvL 1/09 – juris; Federal Constitutional Court, Judgment of September 27, 2011, Case No.: 1 BvR 232/11 – juris, para. 24 et seq.; Federal Social Court, Judgment of June 4, 2014, Case No.: B 14 AS 42/13 R; Luik in: Eicher/Luik, SGB II, 4th ed. 2017, § 22, para. 74 et seq. with further references; contra: Social Court Mainz, Judgment of June 8, 2012, Case No.: S 17). AS 1452/09; SG Mainz, judgment of 18 October 2013, file no.: S 14 AS 1069/12; SG Mainz, referral order of 12 December 2014, file no.: S 3 AS 130/14, the referrals were dismissed as inadmissible by order of 6 October 2017, file nos.: 1 BvL 2/15 and 1 BvL 5/15).

To determine the abstractly appropriate housing allowance, the appropriate apartment size and the relevant local comparison area must first be established. An apartment is only considered appropriate if, in terms of its furnishings, location, and building structure, it meets simple and basic needs and does not represent a high standard of living. It is sufficient that the product of living space and standard, as reflected in the rent, is reasonable (Federal Social Court [BSG], Judgment of December 12, 2013, Case No.: B 4 AS 87/12 R – juris para. 19; Federal Social Court [BSG], Judgment of September 10, 2013, Case No.: B 4 AS 4/13 R – juris para. 12 with further references).

To determine the eligible living space, the criteria established by the federal states pursuant to Section 10 of the Law on Social Housing Promotion (WoGG) must be applied (Federal Social Court, Judgment of December 17, 2009, Case No.: B 4 AS 50/09 R – juris para. 16). In Hesse, these criteria are based on the Hessian Guidelines for Social Housing Promotion of March 20, 2003 (Hessian State Gazette 2003, p. 1346), as amended by the Guidelines of January 19, 2004 (Hessian State Gazette 2004, p. 628). According to these guidelines, a living space of up to 60 square meters is considered appropriate for two^people . By decree of August 4, 2014 (Hess. Staatsanzeiger 2014, p. 647), the appropriate living space size for a two-person household remained unchanged at 60^m².

The plaintiffs' apartment measures 75 m²^.This apartment size exceeds the reasonable value. However, according to the product theory (Federal Social Court [BSG], judgment of November 7, 2006; Case No.: B 7b AS 10/06 R – juris para. 24; BSG, judgment of September 22, 2009, Case No.: B 4 AS 18/09 R – juris para. 17), this excess is only legally relevant if the product, expressed in terms of the rent, would be unreasonable (Hessian State Social Court [Hess. LSG], judgment of November 6, 2013, Case No.: L 4 SO 166/15 B ER – juris para. 29).

The court is convinced that the upper limits of reasonableness applied by the defendant cannot be used to further determine reasonableness, nor can they justify maintaining the accommodation costs granted so far.

The concept for determining the appropriateness of accommodation costs in the Werra-Meißner district (final report 2014) and the 2015 KdU guideline values, index update of the conclusive concept 2013 (final report 2015) by the company Analyse & Konzepte, Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH (hereinafter referred to as "concept"), does not, in the Chamber's opinion, meet the requirements of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) with regard to determining the appropriateness of accommodation costs and the requirements continuously developed by the case law of the Federal Social Court, since even the first step of forming a relevant comparison area in the Werra-Meißner district for determining the abstractly appropriate accommodation costs was not correctly established. A coherent concept should provide sufficient assurance that the current conditions of the local rental housing market are reflected (compare BSG, judgment of 22 September 2009, file no.: B 4 AS 18/09 R – juris para. 18; BSG, judgment of 18 June 2008, file no.: B 14/7b AS 44/06 R – juris). The basic income support provider is not necessarily required to rely on a simple or qualified rent index as defined in Sections 558c and 558b of the German Civil Code (BGB). Rather, the decisive factor is that the basic income support provider's findings are based on a concept that is coherent in the interest of verifiability and thus sufficiently comprehensible for limiting the actual accommodation costs to a "reasonable level" (Federal Social Court, Judgment of September 22, 2009, Case No.: B 4 AS 18/09 R – juris para. 18). According to the established case law of the Federal Social Court, a concept is a planned procedure of the basic income support provider in the sense of systematically determining and evaluating general, albeit location- and time-specific, facts relevant to all cases and not merely for an ad hoc procedure on a case-by-case basis.

The concept is sound if it meets at least the following requirements:

• Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization)
• A comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to apartment standard, gross and net rent (comparability), differentiation according to apartment size,
• Information about the observation period,
• Determining the method of data collection (sources of information, e.g. rent index),
• Representativeness of the scope of the collected data,
• Validity of the data collection,
• Compliance with recognized mathematical and statistical principles of data analysis and
• Information about the conclusions drawn (e.g., upper range or capping limit).

(cf. among others BSG, judgment of 22 September 2009, file no.: B 4 AS 18/09 R – juris para. 19).

These standards presuppose that, in addition to the appropriate apartment size, a relevant comparison area has first been correctly established by the defendant or a company commissioned by him to develop the concept. For all further steps of the review, it is crucial to determine which spatial comparison standard was used (Federal Social Court, Judgment of November 18, 2014, Case No.: B 4 AS 9/14 R – juris para. 24).

The defendant's directive and the underlying concept define the entire Werra-Meißner district as the relevant comparison area. The court considers this definition of a comparison area incorrect, as the municipalities within the Werra-Meißner district do not constitute a single, homogeneous living and residential area.

For local comparison, the primary factor is the place of residence of the benefit recipient, without the municipal constitutional definition of "municipality" being decisive. In the case of particularly small municipalities, such as in rural areas, which lack a representative housing market, it may be necessary to combine larger areas as a benchmark. The crucial point is to describe sufficiently large residential areas for the representative determination of the rent level, areas which, due to their spatial proximity to one another, their infrastructure, and especially their transport connections, constitute a homogeneous living and residential area overall (Federal Social Court, Judgment of December 12, 2013, Case No.: B 4 AS 87/12 R – juris para. 22 with further references). Defining the precise, delimited comparison area is the central starting point for determining the rent ceiling for a specific area (LSG Mecklenburg-Vorpommern, Judgment of July 11, 2017, Case No.: L 10 AS 333/16 – juris para. 41). The proper definition of the comparison area is subsequently a logical prerequisite for developing a sound concept (BSG, Judgment of April 16, 2013, Case No.: B 14 AS 28/12 R – juris para. 31). The requirements for a relevant local comparison area, which the Federal Social Court has consistently defined in its case law, adequately consider the benefit recipient's interest in remaining in their social environment (BSG, Judgment of November 7, 2006, Case No.: B 7b AS 18/06 R – juris para. 21). The comparative regulation cannot be based schematically on the area of ​​the responsible municipal authority or on the constitutional definition of a municipality (Federal Social Court, Judgment of November 7, 2006, Case No.: B 7b AS 18/06 R – juris para. 21). In rural areas, there is no one-size-fits-all solution; rather, it depends on the local conditions. In particular, the comparative area must be defined in such a way that one can actually speak of a "local housing market" (compare, for example, Hessian State Social Court, Decision of July 23, 2007, Case No.: L 9 AS 91/06 B ER – juris para. 55 et seq.; Baden-Württemberg State Social Court, Judgment of July 17, 2008, Case No.: L 7 AS 1797/08 – juris para. 44). Only objective criteria are to be used when determining the comparison area, so that the concept of the social environment does not require an individual case-by-case examination (BSG, judgment of December 12, 2009, file no.: B 4 AS 27/09 R – juris para. 19).

The reference area forms the local basis for determining abstract adequacy (Knickrehm, SGb 2017, 241, 242). The definition of the reference area remains controversial, as determining such an area is particularly difficult in rural regions (Knickrehm, SGb 2017, 241, 242; von Malottki, info also 2012, 99 ff.; Zimmermann, NJ 2010, 400 ff.). The following functional aspects underlie the reference rule: the area for limiting housing benefits, the reasonable area for housing searches, the spatially equivalent limit of adequacy, and the spatial determination of data analysis (Knickrehm, SGb 2017, 241, 247).

Regarding the comparison area, the Federal Social Court stated, among other things, the following (see BSG, judgment of January 30, 2019, file no.: B 14 AS 24/18 R – juris para. 22 ff.):

"a) The comparison area is the area for which a fundamentally uniform abstract value of appropriateness is to be determined (Federal Social Court [BSG] judgment of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19, para. 21), within which a move to reduce costs is generally reasonable for a person entitled to benefits (cf. BSG judgment of 17 December 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27, paras. 32 ff.) and an unnecessary move pursuant to Section 22 para. 1 sentence 2 of the German Social Code, Book II (SGB II) leads to a cap on expenses at the previous level (cf., in contrast, BSG judgment of 1 June 2010 – B 4 AS 60/09 R – BSGE 106, 147 = (SozR 4-4200 § 22 No. 35, para. 18 et seq.; most recently BSG of 17 February 2016 – B 4 AS 12/15 R – SozR 4-4200 § 22 No. 88, para. 13 et seq.). The comparison area is a sufficiently large area of ​​residential development determined from the place of residence of the person entitled to benefits, which, due to spatial proximity, infrastructure and in particular transport connections, forms a homogeneous living and residential area overall (cf. e.g. BSG of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19, para. 20 et seq.).

According to the legislative provision in Section 22b Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), which also applies to coherent concepts within the framework of Section 22 Paragraph 1 SGB II, the area of ​​responsibility of a job center initially constitutes a comparison area. However, this area may be subdivided into several comparison areas due to local conditions, for each of which separate adequacy values ​​can be determined. Such local conditions are less about differing landscapes and more about spatial orientations, such as daily commuting distances for working people or proximity to metropolitan areas, as well as significant differences in rent levels evident from the data collection.

b) The sound concept should ensure that the current conditions of the rental housing market in the comparison area form the basis for the appropriate rent and that this rent is determined realistically. A concept is sound if, in addition to legal requirements, it also fulfills certain methodological requirements and is comprehensible. Despite the variety of methods, this requires, in particular, a definition of the apartments under investigation according to size and standard, information on the method of data collection, information on the period to which the data collection relates, representativeness and validity of the data collection, adherence to recognized mathematical and statistical principles in the data analysis, avoidance of "hotspots" due to social segregation, and a justification explaining how the adequacy values ​​were determined from the data (see, in particular, Federal Social Court [BSG] judgment of September 22, 2009 – B 4 AS 18/09 R – BSGE 104, 192 = SozR 4-4200 § 22 No. 30, paragraphs 18 et seq.; BSG judgment of November 18, 2014 – B 4 AS 9/14 R – BSGE 117, 250 = SozR 4-4200 § 22 No. 81, principle: on the openness of these principles to development; most recently BSG of 12.12.2017 – B 4 AS 33/16 R – BSGE 125, 29 = SozR 4-4200 § 22 No. 93 , RdNr 17 f; cf. also § 22a para. 3, § 22b para. 1, 2, § 22c para. 1 SGB II).

c) There can be various methods for developing a coherent concept in this sense and for establishing the directly related comparison area or, if applicable, several comparison areas, because neither Section 22 of the German Social Code, Book II (SGB II) nor Sections 22a to 22c of the SGB II mandates the application of a specific procedural law (see Federal Social Court [BSG] judgment of November 18, 2014 – B 4 AS 9/14 R – BSGE 117, 250 = SozR 4-4200 § 22 No. 81, paragraphs 19 et seq.; see also Bundestag printed matter 17/3404, p. 101, on Section 22b: “Variety of concepts”; Šušnjar in Hohm, GK-SGB II, Section 22, paragraph 142, as of September 2017; regarding the various procedures: Research Report 478, Determination of the subsistence-level Needs for the costs of accommodation and heating in basic income support for jobseekers under the Second Book of the Social Code and in social assistance under the Twelfth Book of the Social Code, prepared by v. Malottki et al., published by the Federal Ministry of Labour and Social Affairs, 2017, p. 207 ff; on the interdependencies between the comparison area and the coherent concept, see also Federal Social Court judgment of 11 December 2012 – B 4 AS 44/12 R – para. 18).

9. As explained in section 5, it is fully subject to judicial review whether the determination of the abstractly appropriate net cold rent, in particular the definition of the comparison area and the creation of a coherent concept within the framework of the variety of methods, has been carried out correctly. The full judicial review of the appropriateness of the value and the procedure for its determination does not preclude taking into account the administrative responsibility expressed in the diversity of methods used and structuring the judicial review as a comprehensive review (Federal Constitutional Court, judgment of May 31, 2011 – 1 BvR 857/07 – BVerfGE 129, 1, juris para. 70; see also regarding the limits of judicial review: Federal Constitutional Court, judgment of October 23, 2018 – 1 BvR 2523/13, 1 BvR 595/14; see also Luik in Eicher/Luik, SGB II, 4th ed. 2017, § 22 para. 91, 104: “Procedural review”)

The Chamber fully endorses the presented criteria after forming its own opinion. Taking the above criteria into account, it cannot be assumed that the entire Werra-Meißner district constitutes a local comparison area for determining appropriateness. The developed requirements for establishing comparison areas are applicable not only to large cities but also, in principle, to rural districts (see regarding the special requirements for rural areas: Federal Social Court [BSG], Judgment of November 7, 2006, Case No.: B 7b AS 18/06 R – juris; regarding a district divided into several comparison areas: Federal Social Court [BSG], Judgment of June 16, 2015, Case No.: B 4 AS 44/14 R – juris).

It is not possible to make a general statement as to whether an entire district constitutes a single comparison area or should be divided into several comparison areas; rather, an individual assessment must be carried out in each case according to the aforementioned general legal criteria (Bavarian State Social Court, judgment of March 28, 2018, case no.: L 11 AS 620/16 – juris para. 39 with reference to Federal Social Court, judgment of December 11, 2012, case no.: B 4 AS 44/12 R – juris). The provisions of the German Social Code, Book II (SGB II), also already indicate that a district can be divided into several comparison areas. For example, Section 22b Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) (this provision for statutes can be used to interpret the requirements for the concept of appropriateness in Section 22 Paragraph 1 Sentence 1 of the SGB II, see, among others, the Federal Social Court (BSG) judgment of December 12, 2017, file number: B 4 AS 33/16 R with reference to the Federal Constitutional Court, decision of October 6, 2017, file number: 1 BvL 2/15 and 5/15 – juris) provides that it is possible to divide a district into several comparison areas. The number of living persons in a potential comparison is generally not of decisive importance (Bavarian State Social Court, judgment of March 28, 2018, file no.: L 11 AS 620/16 – juris para. 39 with reference to BSG, judgment of May 26, 2011, file no.: B 14 AS 132/10 R – juris).

First, it must be noted that the initial concept, which was also the subject of the cost-reduction request, is flawed, as the entire Werra-Meißner district cannot be considered a single comparison area. The Chamber concurs with the convincing decisions of the 3rd and 12th Chambers of the Kassel Social Court and the decisions of the Hessian State Social Court, which criticized the defendant's concept on the grounds that the Werra-Meißner district does not constitute a suitable comparison area within its entirety (see Hessian State Social Court, judgment of November 21, 2018, case no.: L 6 AS 185/18; Kassel Social Court, judgment of February 19, 2018, case no.: S 3 AS 236/15; Kassel Social Court, judgment of March 21, 2018, case no.: S 12 SO 139/17 with further references).

The Hessian State Social Court convincingly stated the following (see Hessian State Social Court, judgment of November 21, 2018, file no.: L 6 AS 185/18 – juris para. 49 – 53):

"For the Werra-Meißner district, this means that a comparison area encompassing the entire district cannot be validly assumed. The Werra-Meißner district, with its 1,024.7 km²^area , no major urban centers, and four medium-sized centers with a total population of approximately 100,000, does not, in the Senate's view, constitute a homogeneous living and residential area. Its infrastructure, and in particular its transport connections, are characterized by considerable heterogeneity. In this respect, the Senate refers to the "North Hesse Regional Plan 2009."

This means that the Werra-Meißner district, with regard to its municipalities of Kassel (C Stadt), Helsa, and the Kaufunger Wald estate, is to be assigned to the Kassel planning region. This planning region is characterized by its function as a link between the Kassel metropolitan area and the rural area (p. 21 of the regional plan). Its development axes are accordingly aligned with the main public transport routes connected to Kassel. This aims to limit private motorized transport.

Furthermore, according to the regional plan, the Werra-Meißner district is classified as a rural area. In contrast to the administrative region, this constitutes an independent living and economic space while preserving diverse sub-regional characteristics (p. 22 of the regional plan). Accordingly, the infrastructural focus differs: In rural areas, the regional plan aims to strengthen medium-sized centers as locations for services, businesses, employment, and housing, and especially for public institutions. A direct link to the metropolitan area is explicitly not intended. Instead, the transport infrastructure increasingly relies on central locations with major long-distance rail and road connections.

The assessment that the Werra-Meißner district as a whole cannot be considered a comparable area in the sense of a spatial area with a homogeneous living and residential environment is ultimately also shared by the company G. as the concept developer. On page 15 of the concept, she states that the Werra-Meißner district does not have a uniform housing market and exhibits significant regional differences (cf. regarding further concepts developed by company G. for the Harz district, Saxony-Anhalt Higher Social Court, judgment of January 31, 2018 – L 5 AS 201/17; for the Börde district, Saxony-Anhalt Higher Social Court, judgment of April 24, 2018 – L 5 AS 408/17; for the Salzland district, Saxony-Anhalt Higher Social Court, judgment of March 7, 2018 – L 5 AS 376/16; in contrast, for the Pinneberg district, Schleswig-Holstein Higher Social Court, judgment of January 31, 2017 – L 6 AS 135/15; see also Rhineland-Palatinate Higher Social Court, judgment of November 29, 2016 – L 3 AS 137/14; Thuringian Higher Social Court, judgment of July 8, 2016 – L 5 AS 137/14; judgment of July 8, 2016 – L 5 AS 137/14; judgment of July 19 ... 2015 – L 4 AS 718/14). However, this finding is not incorporated into the concept when forming the abstract-general comparison space, but is only to be taken into account in the concrete-individual consideration.

The Senate is therefore convinced that the Werra-Meißner district is not suitable to serve as a single comparison area in its entirety. Rather, it must be divided into at least two separate comparison areas

After all this, the initial concept is flawed, as it lacked a proper definition of a comparable area as its basis. The establishment of a comparable area and the development of a coherent concept for determining the abstractly reasonable net rent within the framework of the basic income support allowance for accommodation are fully subject to judicial review, but cannot be substituted by the court (Federal Social Court, Judgment of January 30, 2019, Case No.: B 14 AS 24/18 R). The initial concept and the updated version that formed the basis of the administrative decision and the cost-reduction request do not serve as a benchmark for determining reasonable accommodation and heating costs.

2. The court is also not persuaded by the defendant's subsequent revisions during the court proceedings regarding the determination of reasonable housing costs. If the determination of this abstract reasonable value is legally objectionable, the job center must be given the opportunity to address these objections by submitting statements, possibly after conducting further investigations of its own (see, most recently, Federal Social Court [BSG], judgment of January 30, 2019, case no.: B 14 AS 24/18 R, referring to BSG, judgment of November 18, 2014, case no.: B 4 AS 9/14 R). In the present case, based on decisions already made in other proceedings regarding the formation of comparable areas, the job center had the concept revised by the report from the company Analyse und Konzepte from April 2019 and has now divided the Werra-Meißner district into four comparable areas.

The revision is based on the correction report from April 2019 regarding the concept for determining the adequacy of accommodation costs in 2013 and the update of the guideline values ​​for 2015. This revision resulted in the division of the Werra-Meißner district into four comparison areas, which, according to the company Analyse & Konzepte, represent the district's medium-sized towns (Witzenhausen, Hessisch Lichtenau, Eschwege, and Sontra). It is stated that these medium-sized towns were defined based on regional planning. According to a research report from the Federal Ministry of Labor and Social Affairs from January 2017, the medium-sized areas established by regional planning could be recommended as a suitable operationalization method for creating comparison areas. These medium-sized areas are based on distances, geographical relationships, transport connections, and traditional ties between the municipalities. They also take into account administrative boundaries at the district or state level. The spatial interconnectedness and the expected behavior of the population when using infrastructure and public services as well as professional mobility should also have been taken into account (Correction Report, pp. 3-4).

Despite the revised approach, the court remains unconvinced of the concept's coherence. While the newly established abstract comparison areas may represent a homogeneous residential and living environment, they do not lead to a convincing result for the period in question when considered in conjunction with the previous data. It has emerged that only two comparison areas now have a data basis encompassing more than 10% of the regionally relevant rental housing stock. The plaintiffs' place of residence, Eschwege, is one of two comparison areas that uses the 10% (specifically 14.3%) of the rental housing stock as a data basis for recalculation. Due to the correction of the comparison area division, insufficient representative data could be used to determine adequacy for the comparison areas of Hessisch-Lichtenau and Sontra. The company Analyse & Konzepte recommends applying the housing allowance table with a 10% safety margin for these comparison areas. For the affected comparison area of ​​Eschwege, the limits for reasonable rent for a two-person household increase to €339.30 (gross rent excluding utilities). However, the Chamber considers a concept for determining the reasonableness of accommodation and heating costs within the jurisdiction of a basic income support provider to be coherent only if the entire concept is based on a sufficient data foundation. This ensures that, even when considering the various comparison areas, a sufficient data basis is available for all comparison areas should adjustments be necessary. This prevents situations where, within the jurisdiction of a basic income support provider, the values ​​from the housing allowance table (including a safety margin) are applied in some cases, while significantly lower values ​​are applied in other comparison areas during adjustments. The goal of a "coherent concept" is a comprehensive, data-driven approach that is not partially achieved by allowing the determination of reasonableness criteria based on old data for some comparison areas but not for others that have been newly created. Even though the initial focus is generally on the data available for the comparison area, a uniform approach can no longer be assumed if the overall concept is revised and the comparison areas are changed, and sufficient data is only available for individual new comparison areas. The Chamber considers this approach a significant change to the concept, which suggests a "new" concept rather than a mere revision of the "old" one.

The defendant's initial request to reduce costs no longer provides the benefit recipient with any basis for searching for suitable housing. In this case, the defendant has made a significant change to its approach. Due to revisions, the comparison area, which previously encompassed the entire district, has been reduced to four. Generally, the data for each respective comparison area is decisive. However, if the previously used data basis for the entire comparison area shifts considerably—for example, if sufficient data is only available for two of the four "new" comparison areas, and the other two use the values ​​from the housing allowance table plus a safety margin—then significant differences arise in the reasonable housing cost threshold within the previously used comparison area. The defendant's request to reduce costs then no longer provides the plaintiff, or the benefit recipient, with a sufficient basis for determining reasonable housing costs. According to the Federal Social Court's jurisprudence, an effective cost-reduction request consists of the job center specifying the reasonable housing costs and an "offer" to enter into a dialogue about these costs (Federal Social Court, Judgment of January 30, 2019, B 14 AS 11/18 R – juris para. 33 with further references). While a concept existed on which the cost-reduction request was based, the essential changes to this concept, made as part of the revision process, were only introduced into the legal proceedings in October 2019. Consequently, a basis for a dialogue on cost reduction and for orienting the calculation towards apartments with reasonable housing costs in a completely new, significantly reduced comparison area is no longer possible.

Furthermore, the Hessian State Social Court already stated the following regarding the data basis in its judgment of November 21, 2018 (Case No.: L 6 AS 429/16):

"These raw data, presented in tabular form, are headed 'Existing Rents,' 'Asking Rents,' and 'Cold Operating Costs' and contain data on numerous accommodations in the Werra-Meißner district. For each property, the location, living space, net rent, lease start date, any last rent adjustment, and operating costs per square meter were recorded. However, it is already questionable whether the raw data is suitable for a valid data collection. A large number of existing rents (a total of 18 table pages) are contrasted with a comparatively small number of asking rents (a total of 5 table pages). Furthermore, for the towns of Großalmerode and Hessisch Lichtenau, i.e., the plaintiff's immediate catchment area, only 12 listed asking rents fall within the apartment size range relevant to the plaintiff. It is reasonable to assume that statistical significance is not achieved with such a small number of asking rents considered." The raw data alone do not allow for any conclusion as to whether the data permit a statistically valid average value or whether random results lead to distortions. This would have to be demonstrated statistically and mathematically by a significance test. The primary extreme value capping (see pp. 28 ff. of the defendant's concept) is insufficient for this purpose given such a small number of apartments. Further evaluative validation, which is not mentioned in the concept, would have been necessary and should have been presented

The raw data from the 2013 rent survey, the 2015 update, and the supplementary analysis for the 2015 update in the Werra-Meißner district (May 2017) also show that there were initially 18 pages of existing rents compared to only 5 pages of asking rents in 2013, 3.5 pages of asking rents in 2015, and only about 2/12 of a page of asking rents in the 2017 follow-up survey. In 2015, only 13 apartments in Eschwege could be recorded with asking rents for apartments in size category 2. In 2017, the special survey of asking rents for the corresponding apartment category yielded only 12 listings in Eschwege. The Chamber considers this number to represent a very small proportion of newly included asking rents.

3. Since, even after the revisions, a conclusive concept for determining the limits of reasonable rent is still lacking, the court considers this a case of lack of evidence. Because there is a lack of evidence regarding the appropriate reference rent, the court resorts to the table in Section 12 of the Housing Benefit Act (WoGG) to determine the limits of reasonable rent. Eschwege is classified in rent level I. Section 12 of the Housing Benefit Act (WoGG) in the version of October 2, 2015 (valid from January 1, 2016) stipulates a maximum amount of €378.00 for two household members in rent level I (Federal Law Gazette I, pp. 1610 et seq.). This value must be increased by a safety margin of 10% of the amount to determine the limits of reasonable rent. In the event of a lack of evidence for determining the appropriate reference rent, the actual expenses are generally to be covered. To comply with the intent of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), a maximum limit for reasonable expenses must also be established. This limit is imposed by the table values ​​in Section 12 of the Housing Benefit Act (WoGG) as a maximum limit for reasonable expenses (established case law, see Federal Social Court (BSG), judgment of December 12, 2013, Case No.: B 4 AS 87/12 R – juris para. 25; BSG, judgment of December 11, 2012, Case No.: B 4 AS 44/12 R – juris para. 19). The value in Section 12 WoGG must be increased by a safety margin of 10% for the period in question. A safety margin must be taken into account because the purpose of the Housing Benefit Act differs from that of Section 22 of the German Social Code, Book II (SGB II). The purpose of the Housing Benefit Act is not to fully or substantially cover rents for housing if the income requirements are met. Rather, housing benefit is a subsidy towards housing costs. In contrast, the appropriate rent or reasonable housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the SGB II are intended to ensure that housing is available at a value deemed appropriate. Both regulations thus pursue different objectives; the values ​​from Section 12 of the Housing Benefit Act should therefore only be used as a basis for calculating the appropriate rent and adjusted by means of the "safety margin" in accordance with the purpose of Section 22 Paragraph 1 Sentence 1 of the SGB II (Federal Social Court, Judgment of December 12, 2013, Case No.: B 4 AS 87/12 R – juris para. 27). For the determination of the reasonable housing allowance limit within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), a safety margin of 10% can be applied in cases where the relevant information is unavailable and recourse is made to Section 12 of the Housing Benefit Act and the table values ​​contained therein. This safety margin sufficiently ensures that the benefit recipient, with the amount ultimately allocated to them for housing costs, is able to find accommodation within the local area that meets basic and fundamental needs in terms of amenities, location, and building structure. The amount of the margin is intended to create a reasonable distinction between, on the one hand, the most basic standard and, on the other hand, an already higher standard (compare Federal Social Court (BSG), Judgment of December 12, 2013, Case No.: B 4 AS 87/12 R – juris para. 28). The safety margin amounts to €37.80 for a housing allowance of €378.00. This results in an appropriate upper limit for the accommodation costs in the present case for the plaintiffs, amounting to €415.80 per month.

Since the actual cost of accommodation is €410.00 (gross rent excluding utilities), the actual costs for the apartment occupied by the plaintiffs during the period in dispute must be covered.

4. The decision on costs is based on § 193 SGG.

5. The appeal is admitted because, in the Chamber's opinion, the question of the scope of the possibilities for improving a concept is of fundamental importance within the meaning of Section 144 of the Social Court Act (SGG).

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