DECISION
In the legal dispute
1. xxx, Kassel
2. xxx, Kassel
3. xxx, Kassel
4. xxx, Kassel
5. xxx, Kassel
Applicant,
Legal representative:
for items 1-5: Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter City of Kassel, represented by the Managing Director,
Lewinskistraße 4, 34127 Kassel
Respondent,
The 1st Chamber of the Social Court of Kassel decided on December 7, 2021, through the presiding judge, Judge xxx:
The respondent is ordered to provisionally grant the applicants 5/6 of the actual costs of accommodation and heating for the period from 29 October 2021 to 30 April 2022, taking into account the benefits already provided for the costs of accommodation and heating for this period.
Furthermore, the application for preliminary legal protection is rejected.
The respondent shall bear the applicant's necessary extrajudicial costs.
The applicants will be granted legal aid with the appointment of lawyer Adam, Göttingen.
The appointment is made under the conditions of a lawyer established in the district of the court hearing the case.
REASONS
I.
The applicants seek, by way of preliminary legal protection, the reimbursement of the actual costs of accommodation.
The first applicant lives with her husband, who receives benefits under Book XII of the German Social Code (SGB XII) and has care level 2, and their children, applicants 2-5, in the same household. Applicant 5, born on [date redacted], also has care level 2 and requires a wheelchair. The family receives benefits under Book II of the German Social Code (SGB II) from the respondent. They initially lived in an apartment on the 4th floor without an elevator, for which the respondent had covered the full cost of accommodation. For some time now, the family of six has been looking for a different apartment that also meets the needs of applicant 5. In March 2021, the applicants informed the respondent of their wish to move to [address redacted]. The original rent, including utilities and heating costs, was to be €1400. By letter dated April 16, 2021, the respondent refused to approve the move. The applicants subsequently stated that, following a discount negotiated with the landlord, the monthly rent including utilities should be €1,265 and the heating costs €85. The applicants moved into the new apartment on July 1, 2021. By amended decision dated June 16, 2021, as amended again on July 5, 2021, the respondent granted monthly housing costs of €842.30 for the period from July 2021 to April 2022 and heating costs of €70.85. The respondent based this on the assumption that the move was fundamentally necessary, but had taken place without the applicants' consent. Due to the illness of the applicant (5th) and his husband, he calculated the limit of the rental costs with seven instead of six persons, i.e. €1,010.73, of which 5/6: €842.30, and €85 heating costs, of which 5/6: €70.85.
The husband/father of the applicants filed an objection against the decision of June 16, 2021, which was rejected by a decision on the objection dated October 27, 2021. The applicants then filed a lawsuit against this decision with the Kassel Social Court on October 29, 2021 (Case No. S 1 AS 398/21) and simultaneously requested preliminary legal protection from the court.
The applicants argue that, due to the husband/father's care level 2, the calculation of the threshold should be based on an 8-person household. Furthermore, they contend that the provisions of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) should apply.
The applicants request that
the respondent be ordered, by way of an interim injunction, to grant them the requested benefit provisionally and subject to the right of recovery until a final and binding decision is reached on the applicants' action against the respondent's decision of June 16, 2021, as amended by the decision on the objection of October 27, 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The respondent argues that the grounds for the injunction have not been substantiated, as the applicants were prepared in the summer to cover the difference between the approved housing costs and the actual rent themselves. Furthermore, three and a half months after the tenancy began and the applicants failed to provide grounds for their objection, there is no longer a legitimate interest in expedited proceedings. Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) also applies only to new applications.
II.
The admissible application is largely justified, as a claim and grounds for the order have been credibly demonstrated until the end of the approval period. The application is otherwise dismissed.
1. The application for preliminary legal protection is admissible; in particular, no binding administrative act has yet been issued, since an action was brought simultaneously with the application for preliminary legal protection against the grant notice of June 16, 2021, as amended on July 1, 2021, and as further amended by the decision on the objection of October 27, 2021. The need for legal protection arises, not least, from the basic security nature of the benefit.
2. The application is largely justified.
a. Pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Procedure Act (SGG), the court may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is therefore that the applicant has a substantive legal claim to performance in the main proceedings (claim for an injunction) and that it is unreasonable to expect them to await the decision in the main proceedings (ground for an injunction). The factual prerequisites for the claim for an injunction and the ground for an injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Sections 920 Paragraph 2, 294 of the Code of Civil Procedure (ZPO)). If, without the granting of preliminary legal protection, serious and unreasonable impairments could arise that cannot be averted in any other way and that cannot be remedied by the main proceedings, the courts are obligated (pursuant to Article 19 Paragraph 4 of the Basic Law) to examine the factual and legal situation not only summarily, but conclusively, if they intend to base their decision on the prospects of success in the main proceedings. If a conclusive examination is not possible, a balancing of interests must be carried out (Federal Constitutional Court (Chamber), decision of July 27, 2016 – 1 BvR 1241/16 –, juris, para. 11). The claim for an injunction and the grounds for the injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 of the Social Courts Act in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure). Substantiation is present if the existence of a claim for an injunction and grounds for an injunction is more likely than not. There is a reciprocal relationship between grounds for an injunction and the claim for an injunction. The greater the prospects of success in the main proceedings, the lower the requirements for the grounds for the injunction, and vice versa. If the action in the main proceedings is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected regardless of the grounds for the injunction, because no right worthy of protection exists (Hessian State Social Court, decision of February 5, 2007 – L 9 AS 254/06 ER – juris para. 4). If, on the other hand, the action in the main proceedings is manifestly well-founded, the requirements for the grounds for the injunction are reduced. However, even then, a ground for the injunction cannot be dispensed with entirely (Hessian State Social Court, decision of February 5, 2007, ibid.).
b. Taking these standards into account, the prerequisites for the interim injunction have been largely substantiated.
aa. The entitlement to the order exists for the period from the receipt of the application by the court until the end of the benefit period at the end of April 2022. The entitlement arises from Section 22 Paragraph 1 Sentences 1 and 3 in conjunction with Section 67 Paragraph 3 of the German Social Code, Book II (SGB II).
According to Section 22 Paragraph 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 (Sentence 1). If the expenses for accommodation and heating increase after a move that was not necessary, only the previous amount is recognized (Sentence 2). If the expenses for accommodation and heating exceed what is reasonable given the specific circumstances of the individual case, they are to be recognized as a need for as long as it is not possible or reasonable for the single person entitled to benefits or the household to reduce the expenses by moving, subletting, or in some other way, but generally for no longer than six months (Sentence 3). According to Section 67 of the German Social Code, Book II (SGB II) (Simplified Procedure for Access to Social Security due to the COVID-19 Pandemic), as amended on March 10, 2021, and November 22, 2021 (effective April 1, 2021, and November 24, 2021, respectively), benefits under the SGB II for benefit periods beginning between March 1, 2020, and March 31, 2022, are provided in accordance with paragraphs 2 to 4 of the provision. Paragraph 3 of the provision stipulates that Section 22, paragraph 1, of the SGB II applies, with the proviso that the actual expenses for accommodation and heating are considered reasonable for a period of six months. After the expiry of the period specified in sentence 1, section 22 paragraph 1 sentence 3 of the German Social Code, Book II (SGB II) shall apply, with the proviso that the period specified in sentence 1 shall not be counted towards the time limit specified in section 22 paragraph 1 sentence 3 of the SGB II. Sentence 1 shall not apply in cases where, in the preceding benefit period, reasonable expenses, rather than actual expenses, were recognized as the need.
The applicants are, in principle, entitled to benefits under Section 7 of the German Social Code, Book II (SGB II), at least until the end of the current benefit period. The only point of contention is the cost of accommodation and heating.
The cost of accommodation for the apartment rented from 01.07.2021 in xxx is €1,265 (including utilities) and the heating costs are €85.
The actual costs of accommodation and heating are considered reasonable in accordance with Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II).
The provision of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) applies even though neither the applicants' need for assistance nor their relocation is directly attributable to the coronavirus pandemic. Section 67 SGB II is not limited to those benefit recipients directly affected by the coronavirus pandemic. A causal link between the onset of the need for assistance and the epidemic situation is not required. The scope of application of Section 67 Paragraph 3 Sentence 1 SGB II is also not limited to initial or new applications, but also covers continued benefit periods beginning after March 1, 2020. This is already evident from Section 67 Paragraph 3 Sentence 3 SGB II, which contains a special provision following a cost-reduction procedure and thus for a scenario that can only occur with the continued approval of SGB II benefits. Section 67 Paragraph 3 Sentence 1 SGB II constitutes an irrebuttable legal fiction. Accordingly, this provision is even considered applicable in legal commentaries in cases of very high accommodation costs or "luxury rents" (Bavarian State Social Court, decision of July 28, 2021 – L 16 AS 311/21 B ER –, juris para. 36 with reference to Lower Saxony-Bremen State Social Court, decision of September 29, 2020, L 11 AS 508/20 B ER, juris para. 28 ff; Bavarian State Social Court, decision of April 21, 2021, L 16 AS 129/21 B ER; Burkiczak: "Hartz IV" in times of Corona, NJW 2020, 1180, 1181).
The fact that the applicants only moved in July 2021 does not preclude the provisional recognition of their actual accommodation and heating costs. There is no limitation of their needs under Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II). According to its wording, the legal fiction of Section 67 Paragraph 3 Sentence 1 of the SGB II applies to Section 22 Paragraph 1 of the SGB II, without any distinction being made between the individual sentences of Section 22 Paragraph 1 of the SGB II. Neither the wording of Section 67 Paragraph 3 of the SGB II nor the legislative materials indicate that this special provision is intended to apply only to apartments that have been occupied for an extended period. The purpose of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) is to ensure that recipients of benefits under SGB II do not have to worry about their housing during the pandemic (see explanatory memorandum, BT-Drs 19/18107, p. 25; on the whole matter, see Bavarian State Social Court, decision of July 28, 2021 – L 16 AS 311/21 B ER –, juris Rn. 37 f.).
The fact that the respondent expressly refused to grant the assurance under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), does not preclude the assumption of the actual costs. Section 67 Paragraph 3 Sentence 1 of the SGB II stipulates that for a period of six months, the actual housing and heating costs are to be considered reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the SGB II. These housing and heating costs, which are considered reasonable temporarily—namely, for the first six months of a benefit period beginning between March 1, 2020, and March 31, 2022—should also form the basis for the decision under Section 22 Paragraph 4 of the SGB II within the temporal scope of application of Section 67 Paragraph 3 of the SGB II. Otherwise, the legislator's intent to temporarily suspend the cap on housing and heating costs at the reasonable limit would be thwarted under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) (Bavarian State Social Court, decision of July 28, 2021 – L 16 AS 311/21 B ER –, juris para. 39). This fulfills the legislator's intention in situations where the need for assistance ends within these six months. However, if the need for assistance continues, Section 67 Paragraph 3 of the SGB II does not override Section 22 Paragraph 4 of the SGB II with all its consequences.
This also includes actual expenses for accommodation, to which Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) is limited (Lower Saxony-Bremen Higher Social Court, judgment of 22 September 2020 – L 11 AS 415/20 B ER -juris Rn. 16 ff).
The exception under Section 67 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) does not apply. No cost reduction procedure was carried out for the new apartment, nor is one apparent for the old apartment – the actual housing costs were fully covered there.
The actual costs incurred by the applicants are to be covered from October 29, 2021 until the end of the approval period on April 30, 2022.
Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) establishes a presumption of adequacy for the first six months, thus ending at the end of December 2021. Benefits from October 29, 2021, onwards must be covered, as benefits for the past, i.e., prior to the receipt of the application, cannot generally be claimed through preliminary legal protection (see, among many others, Hessian State Social Court, June 22, 2011, L 7 AS 700/10 B).
Beyond December 2021, the obligation to cover the actual housing and heating costs arises from Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), as a further move or a reduction in costs within the remaining benefit period would be unreasonable for the applicants. According to Section 67 Paragraph 3 of the SGB II, the period under Section 67 Paragraph 3 Sentence 1 of the SGB II is not to be counted towards Section 22 Paragraph 1 Sentence 3 of the SGB II. Sentence 3 states that expenses for accommodation and heating, insofar as they exceed the amount appropriate to the specific circumstances of the individual case, are to be recognized as a need for as long as it is not possible or reasonable for the single benefit recipient or the household to reduce the expenses by moving, subletting, or in some other way, but generally for no longer than six months. Section 22 Paragraph 1 Sentence 2 of the SGB II does not apply, as the respondent himself considered the move to be fundamentally necessary. It is obvious that it was no longer reasonable to expect the applicants to carry the fifth applicant up to the fourth floor, as he requires a wheelchair and there was no elevator. The fifth applicant is now almost six years old. Moving or reducing costs is currently unreasonable for the applicants. The files show that the applicants have been searching for suitable accommodation for some time and had previously submitted an offer, which was rejected as unsuitable. They also sought support in their search from the Association for the Promotion of Autonomy for People with Disabilities, Supported Living program. However, no more suitable rental offer was found for the family of six. An internet search conducted by the court (Immowelt on December 7, 2021, searching for at least 3.5 rooms in Kassel) also yielded no offers that were both affordable in terms of housing costs and accessible for people with disabilities (criterion: elevator or ground-floor apartment). Against this background, the court considers a short-term move to suitable and appropriate accommodation unrealistic. Furthermore, a rent reduction has already been negotiated with the landlord.
The amount of the claim is limited to 5/6 of the actual costs of accommodation and heating, amounting to a total of €1,125 per month, since the husband or father of the applicants is not entitled to benefits under the German Social Code, Book II (SGB II).
bb. There is also a ground for an injunction. The submitted bank statements show that the household regularly uses the overdraft facility despite receiving ongoing benefits. The court does not consider the care allowance received by the household as income, as it assumes that the father and the applicant are cared for by the other members of the household, who belong to the privileged group under Section 33 Paragraph 2 of the Income Tax Act (EStG) in conjunction with Section 1 Paragraph 1 Number 4 of the Second Book of the Social Code (SGB II). No expenses for a care service are apparent, and the respondent has also not included the care allowance in its previous benefit calculations. The household's monthly income, less the actual costs for the rented apartment and daily living expenses, results in a shortfall. This would force the applicants to either accumulate rent arrears at the risk of eviction or significantly reduce their ability to cover their basic living expenses.
One-off inflows in the past are irrelevant for the assessment, as these have obviously been used up.
III. The decision on costs is based on the corresponding application of Section 193 of the Social Court Act (SGG). The rejection of the application beyond the benefit period until a legally binding decision is reached in the main proceedings is not taken into account here, as this period is uncertain.
IV. The appeal is admissible pursuant to Section 172 Paragraphs 1 and 3 in conjunction with Sections 143 and 144 of the Social Court Act (SGG), as the requested benefits exceed the value of €750.
V. Legal aid was to be granted pursuant to Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Sections 114 et seq. of the Code of Civil Procedure (ZPO), since the applicants, according to their personal and economic circumstances, are unable to raise the costs of the litigation even in installments and the request was deemed to have a sufficient prospect of success.
The following is information on legal remedies.
