Social Court Kassel – Judgment of 21 November 2021 – Case No.: S 12 SO 22/21

Ref.: S 12 SO 22/21 (joined with S 12 SO 24/21)

COURT ORDER

In the legal disputes

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 21, 2021, through its presiding judge, Judge xxx, without oral proceedings, rendered the following judgment:

1. In the legal dispute S 12 SO 22/21, the decision of February 13, 2019, as amended by the appeal decision of April 30, 2019, is partially overturned, and the defendant is ordered to partially withdraw the legally binding decision of June 26, 2018, as amended by the appeal decision of November 1, 2018, and to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided at the same time, for the period from July 1, 2018, to June 30, 2019, cold accommodation costs in the amount of €207.90 per month.
2. In the legal dispute S 12 SO 24/21, the decision of May 20, 2019, as amended by the decision on the objection of August 19, 2019, is modified, and the defendant is ordered to continue to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided at the same time, cold housing costs in the amount of €207.90 per month for the period from July 1, 2019.
3. The defendant must reimburse the plaintiff for the costs of both legal disputes.

FACTS

The parties are in dispute over the granting of higher housing costs (KdU), which the plaintiff is claiming in legal dispute S 12 SO 22/21 within the framework of a review procedure pursuant to Section 44 of the Social Code – Administrative Procedure (SGB X) for the period from July 1, 2018 to June 30, 2019, and in legal dispute S 12 SO 24/21 directly from the contested decisions for the subsequent period from July 1, 2019 to June 30, 2020, with both legal disputes being joined under the leading file number S 12 SO 22/21.

The plaintiff, born in 19xx, has lived with her husband, also born in 19xx, in a 71.69 m² three-room apartment in the town center of Witzenhausen since January 1996. Since July 2016, she has been granted basic income support for the elderly and those with reduced earning capacity under Chapter 4 of the Social Code – Social Assistance (SGB XII) by the defendant, the locally responsible social welfare agency, by decision dated September 15, 2016, initially for the period from July 1, 2016 to June 30, 2017, the amount of which was initially €316.92 per month. Previously, a rental certificate had been submitted, according to which the basic rent for the apartment occupied by the plaintiff together with her husband was €293.24 per month, with ancillary costs of €106.00 per month and monthly advance payments for heating costs of €131.00 for the gas-heated apartment.

After the plaintiff had previously received benefits under the Social Code – Basic Income Support for Job Seekers (SGB II), the Werra-Meissner Job Center had, until September 30, 2014, fully considered the plaintiff's share of the rent payments in the calculation of her needs, at least until September 30, 2014. However, in March 2014, the Job Center informed the plaintiff that her accommodation costs for a two-person household in Witzenhausen were unreasonably high. The Job Center also informed her of the accommodation costs it considered reasonable for a two-person household at that time, and subsequently, by decision dated September 19, 2014, these costs were the sole basis for calculating her needs from October 1, 2014.

The defendant did not take into account the actual monthly cold rent costs of €399.24 (€293.24 + €106.00) from July 2016 onwards, but only €337.28 per month, or €168.64 per month attributable to the plaintiff (€337.28 : 2). In this respect, the plaintiff was informed by a further letter dated September 15, 2016, that according to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the actual costs for accommodation and heating would only be covered in full if they were reasonable. According to the defendant's guidelines, the plaintiff's reasonable costs for cold accommodation and heating alone amounted to €337.28 per month, or a pro rata share of €168.64 per month. Furthermore, after a corresponding review of the housing market, there were sufficient offers for more affordable apartments. The defendant could only cover the unreasonable accommodation costs as long as it was unreasonable to expect the plaintiff or her household to reduce the costs by moving, subletting, or saving on operating costs in some other way. As a rule, the assumption of unreasonable accommodation costs was limited to a maximum of six months. The defendant is therefore giving the plaintiff the opportunity to comment on the circumstances by October 14, 2016, and to explain which circumstances in the plaintiff's case could influence the appropriateness of the accommodation and the reasonableness of cost-reducing measures, as the defendant further explained. Should the plaintiff not have commented by October 4 or not have presented any circumstances that would justify refraining from cost reduction measures, she must expect a specific request to reduce costs and, after a reasonable period, an actual reduction of the benefits granted to her to a reasonable amount.

The fact that this had already been done by the decision of September 15, 2016, as well as for years prior, was ignored.

After the plaintiff informed the defendant on October 7, 2016, that she was looking for suitable accommodation but had not yet found any, she received another identical letter on November 7, 2016. According to corresponding file notes (page 80 of the defendant's administrative file), the plaintiff subsequently repeatedly stated that she had still not found suitable accommodation. The defendant did not request any supporting documentation.

According to the file, an initial amended decision was issued on December 13, 2016, for the period beginning January 1, 2017. However, this did not change the housing costs (KdU) that had been deemed appropriate and included in the needs assessment. The same applied to further amended decisions dated January 20, 2017, February 15, 2017, and April 24, 2017, insofar as these affected the current benefit period ending June 30, 2017. At the same time, all of these decisions became legally binding.

By a further decision dated April 24, 2017, the plaintiff was granted continued basic income support for the elderly and those with reduced earning capacity for the subsequent period from July 1, 2017, to June 30, 2018. This decision was again based on the plaintiff's monthly housing costs (KdU) of €168.64, which the defendant considered the only appropriate amount. The plaintiff did not object to this decision, nor to subsequent amended decisions dated July 18, 2017, September 6, 2017, and October 30, 2017, which did not affect the housing costs.

On December 13, 2017, the plaintiff's legal representative first contacted the defendant on her behalf, requesting a review of the plaintiff's benefit payments retroactively from July 1, 2017, pursuant to Section 44 of the German Social Code, Book X (SGB X). This request was subsequently extended on January 12, 2018, to include the period from January 1, 2017, to June 30, 2017, with the justification for all periods under review being that the housing costs granted were too low.

By decision dated June 22, 2018, the plaintiff was retroactively paid higher heating costs from January 1, 2017. However, the remaining review requests were rejected. The defendant stated that the housing costs (KdU) had been correctly calculated from July 2016 onwards and that the appropriate housing cost allowance of €337.28 had been granted. The Werra-Meissner Job Center had already conducted a proper cost reduction procedure regarding the appropriateness of the housing and heating costs and had reduced them to a reasonable amount. Therefore, the defendant could only review the facts available from July 1, 2016 onwards. Subsequent explanations, however, only concerned the heating costs; the decision of June 22, 2018, contained no further explanation regarding the heating costs.

By decision dated June 26, 2018, the plaintiff was subsequently granted basic income support for the elderly and those with reduced earning capacity, starting in July 2018, for a further period from July 1, 2018, to June 30, 2019. In calculating her needs, the defendant had assumed reasonable housing costs (excluding utilities) of €344.32 per month, of which €172.16 per month was attributable to the plaintiff. The actual net monthly rent (excluding utilities) had amounted to €466.24 since January 1, 2018.

However, with a further amendment notice dated June 29, 2018, corresponding benefits were also subsequently granted for the months of May and June 2018, which was justified by the fact that, based on an update of the values ​​regarding the appropriateness of accommodation costs in the Werra-Meister district within the meaning of Sections 42a in conjunction with Section 35 SGB XII, monthly cold accommodation costs of €344.32, or €172.16 attributable to the plaintiff, could now be taken into account retroactively from May 2018.

Both decisions were based on the fact that the adjudicating chamber for the area of ​​SGB XII and the 3rd chamber of the Kassel Social Court for the area of ​​SGB II had previously deemed the Werra-Meissner district's concept for determining appropriate housing costs (KdU), based on the expert opinion of the company Analyse und Konzepte with final report March 2014, to be inconclusive in several judgments. This was because this concept and the guidelines based on it were based solely on a single comparison area, which the 3rd chamber of the court and the adjudicating chamber had considered inconclusive. Subsequently, in May 2018, the company Analyse und Konzepte revised the existing concept and divided the Werra-Meister district into four comparison areas, thereby increasing the cold housing costs considered appropriate from €337.28 per month to €344.32 per month.

The plaintiff's legal representative filed an objection to the decision of June 26, 2018, concerning the benefit period from July 1, 2018 to June 30, 2019, which was received by the defendant on July 3, 2018. In this objection, the representative provided a detailed explanation and cited relevant case law, arguing that the calculation of the deemed appropriate housing costs or rental costs was based on an inconclusive concept. The defendant subsequently addressed this argument in an explanatory letter dated August 24, 2018, and also sent the plaintiff's legal representative the aforementioned final report of May 18, 2018 for further reference.

The defendant then rejected the objection to the decision of June 26, 2018, concerning the approval period from July 1, 2018 to June 30, 2019, as unfounded by means of a decision on the objection dated November 1, 2018, which was served by postal delivery certificate on November 3, 2018.

The plaintiff is not entitled to a higher monthly entitlement to basic income support benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), from July 1, 2018, than that already granted by the defendant. The defendant correctly and lawfully based its calculations on the appropriate housing costs for a two-person household in Witzenhausen, using the concept developed by the company Analyse und Konzepte, Hamburg, for determining the appropriateness of housing costs in the Werra-Meissner district. The calculation of benefits is lawful and accurate and does not infringe upon the plaintiff's rights. According to the concept, which has been in effect since May 2018, the appropriate housing costs for a two-person household in Witzenhausen amount to €344.32. In this respect, the plaintiff's actual rent is unreasonably high, and the Werra-Meissner district job center had already conducted a cost-reduction procedure in 2014, which the defendant further explained in detail. The defendant responded to the aforementioned issue of the comparison area, but this did not, in his opinion, imply that the original concept for defining the comparison area was flawed. The defendant continues to assume the validity of the previous concept, as he further explained. A move is not unreasonable in this case. No reasons have been given as to why moving from the current apartment is not possible, nor has any search for alternative housing been demonstrated. According to the defendant's records, adequate housing is available and suitable for two-person households in the medium-sized town of Witzenhausen, including Bad Soden-Allendorf and Neu-Eichenberg.

The plaintiff subsequently filed a lawsuit on December 5, 2018, under file number S 11 SO 127/18, with the Social Court in Kassel against the decision of June 26, 2018, as amended by the decision on the objection of November 1, 2018, concerning the granting of benefits from July 1, 2018 to June 30, 2019. The defendant then asserted that the lawsuit was inadmissible due to the plaintiff missing the deadline for filing the lawsuit, and the plaintiff, through her legal representative, withdrew the lawsuit upon receipt on January 7, 2019.

At the same time, the plaintiff's legal representative had submitted a review application pursuant to Section 44 of the German Social Code, Book X (SGB X), to the defendant on January 11, 2019, concerning the aforementioned benefit period from July 1, 2018 to June 30, 2019, and specifically the decision of June 26, 2018. The defendant rejected this application, along with another review application (not at issue here) concerning the period from January 1, 2018 to June 30, 2018, by decision of February 13, 2019.

The granting of housing and heating allowances for the periods from July 1, 2017 to June 30, 2018 and from July 1, 2018 to June 30, 2019 was decided by notices of objection dated November 1, 2018 and November 2, 2018, respectively. The appeals filed against these decisions were withdrawn due to being time-barred. The decisions made in these notices of objection do not result in any changes. The decisions are legally binding. No further review will be conducted for the periods in question.

The defendant ultimately rejected the objection filed by the plaintiff's legal representative on February 18, 2019, against the decision of February 13, 2019, which concerned, among other things, the broad period from July 1, 2018 to June 30, 2019, with further explanation, as inadmissible by decision of April 30, 2019.

The objection, in addition to the objection concerning the benefit period from June 1, 2018, to June 30, 2018 (which is not at issue here), was indeed filed in due form and time. However, in both cases, the general need for legal protection was lacking. The objections were therefore to be dismissed as inadmissible. According to Section 77 of the Social Court Act (SGG), an administrative act is binding on the parties if the legal remedy available against it has not been pursued or has been unsuccessful. With the withdrawal of the actions on December 5, 2018, the court proceedings in this matter were rendered moot. The decisions of June 22, 2018, and June 26, 2018, each as amended by the decisions on the objections of November 2, 2018, and November 1, 2018, respectively, became legally binding with respect to the housing costs specified therein. The plaintiff therefore no longer has a right to a decision on the merits, as the defendant further explained in detail.

Against the decision of February 13, 2019, as amended by the decision on the objection of April 30, 2019, and solely concerning the benefit period from July 1, 2018 to June 30, 2019, the plaintiff, through her legal representative, then filed a lawsuit with the Social Court in Kassel on June 3, 2019, under file number S 12 SO 55/19.

Simultaneously, on May 20, 2019, a further notice of continuation of benefits had already been issued, granting the plaintiff basic income support for the subsequent benefit period from July 1, 2019, to June 30, 2020. This was again based solely on the monthly housing costs (excluding utilities) deemed appropriate, amounting to €344.32, of which €172.16 was attributable to the plaintiff. The plaintiff, through her legal representative, filed an objection on May 27, 2019, again asserting her right to benefits based on the table values ​​in Section 12 of the Housing Benefit Act (WoGG), plus a 10% safety margin. The expert report by the company Analyse und Konzepte, with its final report dated May 2018, cannot be considered a valid survey for determining the limits of reasonableness within the defendant's area of ​​responsibility for the purposes of basic income support. The report suffers from such deficiencies in the areas of data collection and analysis that these cannot be remedied even by submitting the raw data.

The defendant then responded to the aforementioned objection with an explanatory letter dated July 5, 2019, and ultimately rejected the objection itself as unfounded with a formal notice of rejection dated August 19, 2019, served on August 20, 2019, concerning the benefit period from July 1, 2019, to June 30, 2020. This essentially reiterated the arguments presented in the aforementioned notice of rejection dated November 1, 2018, which had concerned the provision of benefits from July 1, 2018, to June 30, 2019.

The plaintiff, through her legal representative, filed a lawsuit with the Kassel Social Court on August 21, 2019, under file number S 12 SO 77/19, against the decision of May 20, 2019, as amended by the decision on the objection of August 19, 2019, concerning the granting of benefits for the period from July 1, 2019 to June 30, 2020.

In both legal disputes, the plaintiff opposes the concept applied by the defendant, for which the defendant, even though the plaintiff in legal dispute S 12 SO 55/19 is not entitled to a review of the period in dispute for the reasons stated in the contested decision on the objection there, refers to further statements by the company Analyse und Konzepte, among others, dated January 4, 2019, June 27, 2019 and January 15, 2020, and the raw data for the 2017 rent survey.

Both legal disputes were ultimately suspended pending the appeal proceedings against the aforementioned judgments of the adjudicating chamber of March 21, 2018, which were pending before the Hessian State Social Court. This, as well as the simultaneously pending lawsuits of the plaintiff's husband concerning different benefit periods, S 12 SO 101/18, S 12 SO 102/18 and S 12 SO 140/18, whereby, following a further judgment issued by the 2nd Chamber of the Social Court of Kassel on November 18, 2020, S 2 AS 271/17, in the area of ​​SGB II, the defendant acknowledged in these legal proceedings a grant of benefits for the benefit periods in dispute therein, namely February 1 to June 30, 2017, July 1, 2017 to January 31, 2018 and February 1, 2018 to April 30, 2018, by resorting to the table values ​​applicable in these periods of Section 12 WoGG plus a safety margin of 10%, and the aforementioned legal proceedings of the plaintiff's husband were thereby settled. However, corresponding acknowledgments were not made in the plaintiff's initially suspended legal proceedings, even in light of the aforementioned judgment of the 2nd Chamber of the Kassel Social Court. This was justified by the fact that the 2nd Chamber's decision concerned the "old" concept for determining the appropriateness of accommodation costs in the Werra-Meister district, developed by the company Analyse und Konzepte (final report 2014) in its updated version (final report 2015), which was applied until April 30, 2018, and that no conclusions could be drawn from this for the present proceedings, in which the limits of appropriateness were based on the so-called "new" concept (final report May 2018).

The dormant legal proceedings S 12 SO 55/19 were then finally reopened ex officio under file number S 12 SO 22/21, and the dormant legal proceedings S 12 SO 77/19 under file number S 12 SO 24/21.

At the same time, the presiding judge of both legal disputes pointed out, among other things, that acknowledging the inconsistency of the previous concept could raise the question of whether a new cost-reduction procedure was necessary, since, with regard to the periods in dispute here, there was likely no longer an effective cost-reduction request that would have justified granting benefits solely based on the concept applicable during the period in dispute.

The defendant has opposed this in both legal disputes, while simultaneously announcing the submission of a further statement from the company Analyse und Konzepte on this matter.

By decision of June 8, 2021, the Chamber then joined the legal disputes S 12 SO 22/21 and S 12 SO 24/21 under the leading file number S 12 SO 22/21 for joint hearing and decision.

At the same time, the parties were informed by letter from the presiding judge of the chamber dated June 8, 2021, each served on June 10, 2021, that after further examination, even following the defendant's submissions on this matter, the aforementioned legal advice would be upheld and it was therefore now intended to decide the legal dispute without an oral hearing by court order in a decision-making panel without lay judges, whereby the parties were given the opportunity to comment within 2 weeks of service of the aforementioned letter.

The plaintiff's legal representative did not comment further on the intended decision by court order. The defendant objected. The defendant argued that the prerequisites for issuing a court order under Section 105 Paragraph 1 Sentence 1 of the Social Court Act (SGG) were not met, as no further statement from the company Analyse und Konzepte had been submitted by the defendant prior to this decision. Furthermore, no other obstacles to issuing a court order had been cited prior to this decision.

The plaintiff requests (in essence) that
in legal dispute S 12 SO 22/21
, the decision of February 13, 2019, as amended by the appeal decision of April 30, 2019, be partially overturned and that the defendant be ordered to partially withdraw the legally binding decision of June 26, 2018, as amended by the appeal decision of November 1, 2018, and to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided for the period from July 1, 2018, to June 30, 2019, cold housing costs in the amount of €207.90 per month; in
legal dispute S 12 SO 24/21, the decision of May 20, 2019, as amended by the appeal decision of August 19, 2019, be partially overturned and that the defendant be ordered to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided for the period from July 1, 2018, to June 30, 2019, cold housing costs in the amount of €207.90 per month; and in legal dispute S 12 SO 24/21,
the decision of May 20, 2019, as amended by the appeal decision of August 19, 2019, to be partially overturned and that the defendant be ordered to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided for the period From July 1, 2019, the cold costs of accommodation will continue to be granted in the amount of €207.90 per month.

The defendant requests
that the claims be dismissed.

For further details, in particular for the respective further submissions of the parties, reference is made to the contents of the court files of the two legal disputes joined here; reference is also made to the administrative files of the defendant which were consulted here, the essential content of which relating to the joined legal disputes was also the subject of the decision.

REASONS FOR DECISION

Following the hearing of the presiding judge, the legal disputes could be decided by court order without oral proceedings, pursuant to Section 105 Paragraph 1 Sentence 1 of the Social Courts Act (SGG), in a decision-making process with a panel of judges – without lay judges – after the parties had been heard accordingly, given a reasonable period to submit their statements, the case presented no particular difficulties of a factual or legal nature, and the facts were clarified as they were, in the Chamber's view, solely legally relevant and decisive for the decision based on the parties' submissions in the present case. More than five months after the corresponding announcement, it was not necessary to wait for a further statement from the company Analyse und Konzepte, since, at least in the Chamber's view, the cogency of the new concept with the final report of May 2018 did not affect the decisions made here, and the decisions in both consolidated cases were based solely on a legal question to be resolved.

In this context, the Chamber—as the defendant is aware from another context—follows the view (cf. Burkiczak in Schlegel/Voelzke, jurisPK-SGG, § 105 SGG, para. 21 et seq.) that even legal questions of fundamental importance need not necessarily be of above-average difficulty. In this respect, according to Burkiczak (as above) and the literature cited therein, there are also simple or at least moderately difficult legal questions of fundamental importance. The mere fact that a legal question has significance for the general public beyond the individual case does not, in the Chamber's view (as above), in itself establish any particular legal difficulties. The same applies, according to Burkiczak (as above), to divergence of case law: A social court may deviate from higher or supreme court rulings even on simple or moderately difficult legal questions without the legal questions becoming more difficult as a result. The fact that a legal norm permits different interpretations does not, in itself, establish any particular difficulties. The Social Court, following Burkiczak's reasoning (as above), can decide even exceptionally complex legal questions by way of a court order, particularly if it has previously decided these legal questions in parallel cases by judgment with the participation of lay judges. The chamber can then decide further similar cases by court order, following Burkiczak's reasoning (as above) and the literature cited in this regard, while another chamber or another Social Court that has not yet decided this legal question by judgment is precluded from doing so. In these cases, the Social Court must only grant leave to appeal on the grounds of fundamental importance or divergence, if the prerequisites for this are met, although this question does not arise here. This is also independent of the fact that no legally relevant divergence, on which the decision would be based, is even apparent. The court order has the effect of a judgment in all of this (§ 105 para. 3 first half-sentence SGG).

The lawsuits are admissible. In particular, the claims were filed in due form and time before the competent court (§§ 87, 90 SGG), whereby, according to her respective submissions to substantiate her claims, the plaintiff ultimately limited her actions in a permissible manner to the subject matter of the cold housing costs, since she did not challenge the other severable provisions of the respective decisions in question and, according to the established case law of the Federal Social Court, the benefits for accommodation and heating constitute severable provisions of the overall decision (see, inter alia, Federal Social Court, judgment of December 12, 2013, file no.: B 4 AS 87/12 R, juris – para. 17; Federal Social Court, judgment of September 10, 2013, file no.: B 4 AS 4/13 R – juris para. 10; already Federal Social Court, judgment of November 7, 2006, file no.: B 7b AS 8/06 R – juris para. 18).

Both claims are ultimately fully justified to the extent asserted.

In the legal dispute S 12 SO 22/21, the decision of February 13, 2019, as amended by the appeal decision of April 30, 2019, is unlawful insofar as the defendant refused a review of the cold housing costs granted to the plaintiff for the period from July 1, 2018 to June 30, 2019, and refused to grant the plaintiff higher cold housing costs for this period. In this respect, the defendant in the legal dispute S 12 SO 22/21 was ordered, with partial annulment of the contested decisions, to partially withdraw the decision of June 26, 2018, as amended by the objection decision of November 1, 2018, and to grant the plaintiff, to the extent permitted by law and taking into account the benefits already provided at the same time, cold accommodation costs in the amount of €207.90 per month for the period from July 1, 2018 to June 30, 2019. This is regardless of whether the "new" concept underlying the granting of benefits is itself coherent, since the only relevant factor is that the cost reduction request in question was not based on a coherent concept. Therefore, the aforementioned cost reduction request cannot be considered a legally valid and, in particular, effective cost reduction request underlying the granting of benefits. This, in turn, does not lead to the consideration of the actual cold rent in full (here, €466.24 per month since January 1, 2018) or the plaintiff's full share of these costs. Instead, since these actual costs exceeded the table values ​​of the Housing Benefit Act (WoGG) during the period in dispute, only the actual gross cold rent up to the table value according to Section 12 of the WoGG, plus a safety margin of 10%, is eligible for consideration. This amounts to the aforementioned €207.90 per month (Witzenhausen = rent level I (2 household members)). 378.00 € + 10% = 37.80 € = 415.80 € : 2 = 207.90 €).

In the legal dispute S 12 SO 24/21, this continues and, as a result, also applies to the period from July 1, 2019, so that the decision of May 20, 2019, as amended by the objection decision of August 19, 2019, is also partially unlawful and the defendant in the legal dispute S 12 SO 24/21 is to be ordered, by amending the contested decisions in this respect, to continue to grant the plaintiff, to the extent provided by law and taking into account the benefits already provided at the same time, cold housing costs in the amount of €207.90 per month for the period from July 1, 2019.

With regard to the action filed under file number S 12 SO 55/19 and subsequently continued under file number S 12 SO 22/21 against the decision of February 13, 2019, as amended by the decision on the objection of June 26, 2019, concerning the benefit period from July 1, 2018 to June 30, 2019, it must first be further explained that this action is not unfounded simply because the defendant, following the previously pending action in the 11th Chamber of the Social Court of Kassel, which was inadmissible due to being filed too late and subsequently withdrawn, would have been justified in refusing a (new) review pursuant to Section 44 of the German Social Code, Book X (SGB X), and the objection would then have been justified in being dismissed as inadmissible. Regardless of the fact that the defendant had not even bothered to address the long-standing social court case law or the relevant commentary literature, this was already legally flawed and unlawful.

The defendant fails to recognize that, in proceedings under Section 44 of the German Social Code, Book X (SGB X), administrative bodies and courts are obligated to examine, even without new submissions from the applicant, whether the law was incorrectly applied when issuing a binding administrative act. The purpose of Section 44 SGB X is to resolve the conflict between the binding effect of an unlawful administrative act and substantive justice in favor of the latter (see, in this regard, the judgment of the Social Court of Kassel of June 2, 2010, S 12 KR 172/09, with further references). In this respect, the outcome is no different than in cases where a final and binding social court judgment already exists, even if it was based on a repeated application for review (see, in this regard, the judgment of the Higher Social Court of Hesse of March 11, 1986, L 2 J 1005/85, juris).

If an administrative act is unlawful, the affected citizen has an enforceable right to its revocation, regardless of whether the administrative act has been upheld by a legally binding judgment. Even if the insured person has repeatedly submitted review applications pursuant to Section 44 of the German Social Code, Book X (SGB X), the administration may not reject a renewed application without regard to the actual factual and legal situation. Depending on the scope of the insured person's submissions, the administration must at least conduct a renewed review and issue a decision to the applicant.

Section 44, paragraph 1, sentence 1 of the German Social Code, Book X (SGB X) refers to two alternatives for which an administrative act may be revoked: The law may have been incorrectly applied, or the decision may have been based on facts that prove to be incorrect. Only the second alternative requires the presentation of new facts and evidence and a graduated procedure. The first alternative involves a purely legal review of the decision's legality, to which the insured may contribute arguments, but which must ultimately be conducted comprehensively by the authorities.

Whether a plaintiff's actions constitute an abuse of rights is irrelevant with regard to this duty of review. If the "conceptual" review leads to adherence to the decisions under review, the defendant is ultimately only free to refer to these decisions in its decision, with appropriate explanation. Even in cases of a querulous, repeated application under Section 44 of the German Social Code, Book X (SGB X), in which no new indications of the illegality of the administrative act are presented, the application must (repeatedly) be rejected with a simple reference to the already reviewed legality of the administrative act (see Baumeister in Schlegel/Voelzke, jurisPK-SGB X, Section 44 SGB X, paragraphs 137 et seq.).

Reference can also be made to the Federal Social Court (BSG), which most recently stated in its judgment of January 30, 2020, B 2 U 2/18 R (cited according to juris), ultimately confirming the case law outlined above:

"Section 44 of the German Social Code, Book X (SGB X) therefore, as a different provision within the meaning of Section 77, second half-sentence, of the German Social Courts Act (SGG), overrides the binding effect of legally binding administrative acts (Section 77, first half-sentence, SGG) and provides an enforceable right to the revocation of an unlawful administrative act even if it has already been confirmed by a legally binding judgment (Federal Social Court judgments of May 7, 2019 – B 2 U 34/17 R – juris para. 13)."<BSGE und SozR 4 vorgesehen> ; of 26 October 2017 – B 2 U 6/16 R – SozR 4-2200 § 547 No. 1 para. 16; of 10 December 2013 – B 13 R 91/11 R – SozR 4-2600 § 249b No. 1 para. 18; of 5 September 2006 – B 2 U 24/05 R – BSGE 97, 54 = SozR 4-2700 § 8 No. 18, para. 12 and of 23 May 2006 – B 13 RJ 14/05 R – SozR 4-2600 § 315a No. 3 para. 14). For while the legally binding judgment in the initial proceedings dismisses the (appeal) action for the annulment of the original administrative act (possibly combined with an action for performance, obligation or declaratory judgment), the proceedings in favor of the plaintiff concern the annulment of the negative decisions in favor of the plaintiff and the withdrawal of the original administrative act, i.e. a different subject matter (cf. only Steinwedel, FS 50 Jahre BSG, 2004, 783, 785 f), so that the objection of conflicting res judicata cannot be raised.

The same applies to the second (and all subsequent) proceedings in favor of the applicant, both in relation to the initial and the first proceedings in favor of the applicant, as the Senate has already ruled (Federal Social Court judgment of November 11, 2003 – B 2 U 32/02 R – juris para. 19). According to this ruling, the benefit provider is obligated under Section 44 Paragraph 1 of the German Social Code, Book X (SGB X), to make a substantive decision on the revocation of the opposing administrative acts and the granting of the claimed social benefit, even in the case of repeated applications (Federal Social Court, ibid., and judgment of September 5, 2006 – B 2 U 24/05 R – BSGE 97, 54 = SozR 4-2700 § 8 No. 18, para. 12). Even if the insured person has repeatedly submitted review applications pursuant to Section 44 of the German Social Code, Book X (SGB X), the administration may not reject a renewed application without regard to the actual factual and legal situation, but must conduct a new review and issue a decision to the applicant (Federal Social Court judgment of September 5, 2006 – B 2 U 24/05 R – BSGE 97, 54 = SozR 4-2700 § 8 No. 18, para. 12 with further references). The aim of Section 44 of the German Social Code, Book X (SGB X) is to resolve the conflict between the binding effect of an unlawful administrative act and substantive justice in favor of the latter (Federal Social Court [BSG] loc. cit. and of 4 February 1998 – B 9 V 16/96 R – SozR 3-1300 § 44 No. 24; Schütze in von Wulffen/Schütze, SGB X, 8th ed. 2014, marginal no. 38 ff; Steinwedel, loc. cit., § 44 marginal no. 1b; Voelzke/Hahn, SGb 2012, 685).

Nothing to the contrary follows from the judgments of the 9th and 4th Senates of the Federal Social Court (of 3 February 1988 – 9/9a RV 18/86 – BSGE 63, 33 = SozR 1300 § 44 No. 33 and of 3 April 2001 – B 4 RA 22/00 R – BSGE 88, 75 = SozR 3-2200 § 1265 No. 20), on which the defendant relies and which, in analogy to the judicial reopening proceedings (cf. §§ 578 ff. Code of Civil Procedure) or to § 51 Administrative Procedure Act, advocate a graduated review procedure. Regardless of the extent to which this case law on a tiered review procedure can be followed, it should be noted that Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) specifies two alternatives under which an administrative act must be revoked: The law may have been incorrectly applied, or it may have been based on facts that prove to be incorrect. Only for the second alternative can the presentation of new facts and evidence and a tiered procedure be relevant. The first alternative is a purely legal review of the legality of the decision, to which the plaintiff may contribute arguments, but which must ultimately be carried out comprehensively by the court ex officio (Federal Social Court judgments of 5 September 2006 – B 2 U 24/05 R – BSGE 97, 54 = SozR 4-2700 § 8 No. 18, para. 12 with further references; of 21 March 2002 – B 7 AL 44/01 R – SozR 3-4100 § 119 No. 23 p. 119 and of 16 May 2001 – B 5 RJ 26/00 R – SozR 3-2600 § 243 No. 8 pp. 28 et seq.)

Regarding the respective prerequisites for entitlement to the claimed benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), which are undisputed between the parties and are also met after review by the Chamber, reference can initially be made, analogously to Section 136 Paragraph 3 of the German Social Court Act (SGG), to the defendant's statements in the respective contested decisions. This also applies, at least insofar as the plaintiff and her husband live in an apartment that is unreasonably large for a two-person household, and in principle, only the costs for an apartment of 60 square meters would be considered reasonable.

Furthermore, in case S 12 SO 22/21, it must be considered that, according to Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), an administrative act, even after it has become legally binding, may 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. The application for review submitted in January 2019 also covers the period at issue in case S 12 SO 22/21. Pursuant to Section 116a No. 2 of the German Social Code, Book XII (SGB XII), Section 44 SGB X applies with the proviso that, instead of the four-year period stipulated therein, a period of one year applies according to Paragraph 4 Sentence 1. 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 will be provided 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 itself replaces the revocation when calculating the period for which retroactive benefits are to be provided.

Since the application was submitted in 2019, benefits must be paid retroactively to the plaintiff for one year from the beginning of 2019 – i.e., from January 2018 – insofar as they are covered by the review application, which was also the case here with the originally legally binding approval period from July 1, 2018 to June 30, 2019.

Nevertheless, the defendant was then ordered, as ruled, to pay higher cold housing costs as requested.

Regarding the inconclusiveness of the concept based on the expert opinion of the company Analyse und Konzepte with final report March 2014, the Chamber had already ruled in several judgments (including Social Court Kassel, judgment of March 21, 2018, S 12 SO 139/17, mzwN, juris) that the upper limits of reasonableness applied with this concept in the Werra-Meißner district could not be used to determine the relevant limit of reasonableness here, since the concept/expert opinion used by the defendant in this respect by the company Analyse & Konzepte, Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH, Hamburg, for determining the reasonableness of accommodation costs in the Werra-Meißner district, and in the version initially applied here as well, did not comply with the requirements established by the Federal Social Court (BSG) for setting a rent ceiling, according to which the definition of a comparison area as the starting point for determining a rent ceiling, which a basic income support provider must then determine, is based on which areas are considered homogeneous. These could be considered, whereby spatial distances between them would be of considerable importance for the criterion of homogeneity, and the designation of a comparison area encompassing the entire district – as was originally the case here – does not constitute a suitable comparison area within the meaning of the Federal Social Court's (BSG) jurisprudence, according to several decisions of the 3rd Chamber of the Court (e.g., Social Court Kassel, judgments of February 19, 2018, S 3 AS 236/15, mzwN, juris). The Werra-Meißner district, according to the still applicable 2009 North Hesse Regional Plan, does not, in the opinion of the adjudicating chamber, legally represent a homogeneous living environment in the relevant context, as defined by the 3rd Chamber, lacking a major center and four medium-sized centers. In this respect, the Third Chamber of the court rightly points out that a portion of the district, namely the municipalities of Großalmerode and Hessisch Lichtenau, as well as the Kaufunger Wald estate, are assigned to the Kassel planning region, for which a comprehensive planning and development concept is to be pursued. This concept aims to ensure and create good and equivalent living, economic, and environmental conditions, particularly in the connecting function between urban and rural areas, while the remainder of the district is assigned to the rural area. Thus, this subdivision, as determined by the Third Chamber, convincingly demonstrates the heterogeneity of the district as a comparative area. This heterogeneity is also evident in the infrastructure, as determined by the Third Chamber. The road network is still characterized, among other things, by the former border location and the topographical features of the low mountain range landscape of the Hoher Meißner. The latter is also reflected in the public transport network, which, according to the 3rd Chamber, does not exhibit a homogeneous structure. The mere fact that neighboring municipalities can be reached via bus connections does not justify establishing a single comparison area. Even after review by the adjudicating chamber, none of these aspects were taken into account in the comparison area formation undertaken by the defendant. The company Analyse & Konzepte designates the district as a unified comparison area without ultimately deriving or justifying this claim. An analysis of the infrastructure, and in particular the transport connections in terms of a homogeneous living and residential area, is lacking.

The Hessian State Social Court dismissed the appeal against the aforementioned judgment of the 3rd Chamber in its judgment of November 21, 2018 (L 6 AS 185/18, juris). A comparison area in which the rent ceiling is determined is permissible if it is a sufficiently large area of ​​residential development that, due to its spatial proximity, infrastructure, and especially its transport connections, constitutes a homogeneous living and residential area overall (Federal Social Court, judgment of December 17, 2009 – B 4 AS 27/09 R). This is intended to ensure that local conditions and factors influencing rent prices are taken into account in the reference rent. The term "comparison area" primarily refers to the place of residence of the benefit recipient. In particular, the area of ​​comparison must be chosen in such a way that those seeking assistance can generally maintain their social environment (Federal Social Court [BSG], Judgment of February 19, 2009 – B 4 AS 30/08 R; BSG, Judgment of October 19, 2010 – B 14 AS 2/10 R). Generalizations regarding the comparison area are inadmissible due to these geographically and infrastructurally determined requirements. Depending on local circumstances, the heterogeneity of the comparison area may not be excessively high if several municipalities within a district are combined into a single comparison area. Particularly in rural areas, it may be necessary to combine larger areas as comparison areas (Hessian State Social Court [LSG], Decision of July 23, 2007 – L 9 AS 91/06 ER). If there is no housing market – especially in very small municipalities – larger spatial areas must be considered. These areas should be selected in such a way as to adequately respect the benefit recipient's fundamental right to remain in their social environment (Theesfeld, jurisPR-MietR 13/2018 Note 4), objective considerations necessitate the consolidation, the municipalities within the district should not exhibit significant structural differences (e.g., regarding topography, population density, and infrastructure), and the provision of essential services in the municipalities of the comparison area should be guaranteed by a public transport network, meaning they should be equally well connected (Berlit, info also 2017, 195, 197). Ultimately, due to the abstract and general nature of the legal concept, the comparison area is the area within which, based on purely objective criteria, a move is reasonable for the benefit recipient, without having to consider the individual ties or lack thereof of the benefit recipient to a particular environment or their mobility in order to define this concept. 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 opinion of the Hessian State Office for Spatial Planning and Development (HLSG), constitute a homogeneous living and residential area. Rather, 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 plan indicates that the Werra-Meißner district, with regard to its municipalities of Großalmerode, Helsa, and the Kaufunger Wald estate, belongs 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. The aim of this is to limit motorized private 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 area while preserving diverse sub-regional characteristics (p. 22 of the regional plan). Accordingly, the infrastructural focus is also different: In rural areas, the regional plan aims to strengthen medium-sized centers as locations for supply facilities, businesses, employment and residential areas, and especially for public institutions. A connection to the metropolitan area is explicitly not intended. The transport infrastructure, therefore, increasingly relies on central locations with long-distance rail and road connections.

Finally, after further explanation, the HLSG concluded that, due to the lack of a identifiable comparable area, a coherent concept for determining the rent ceiling was lacking. Therefore, there is a failure to establish the facts in this respect.

In this respect, not only was the inconclusiveness of the aforementioned concept confirmed with the final report of March 2014 for the area of ​​SGB II in the Werra-Meißner district, but also, as a result, the aforementioned case law of the Chamber for the area of ​​SGB XII, whereby the BSG subsequently rejected the appeal against the non-admission of the appeal in the judgment of the HLSG with its decision of October 30, 2019, B 14 AS 10/19 B.

The revised version of the aforementioned concept, prepared by the company Analyse & Konzepte in May 2018 and considered an "improvement" by the defendant, including the further correction report that came into force on July 19, 2019, did not alter anything with regard to the German Social Code, Book II (SGB II), as confirmed by the Second Chamber of the Kassel Social Court (judgment of November 18, 2020, S 2 AS 271/17). In this respect, the Second Chamber provides the following explanations, which are comprehensible and entirely convincing to the present chamber:

"The concept used by the defendant to determine the appropriate level of housing and heating costs, and its subsequent implementation in a guideline, does not meet the requirements of the Federal Social Court for determining regionally appropriate housing 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 housing costs in the Werra-Meißner district by the company Analyse & Konzepte (final report 2014) and the 2015 housing cost guidelines, index 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 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 (BSG of 19.2.2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19)<München I> , paragraph 21), within which a move to reduce costs is generally reasonable for a person entitled to benefits (see Federal Social Court [BSG] of 17 December 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27).<Essen> (see paragraphs 32 et seq.) and an unnecessary move pursuant to Section 22 Paragraph 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, Federal Social Court [BSG] judgment of June 1, 2010 – B 4 AS 60/09 R – BSGE 106, 147 = SozR 4-4200 § 22 No. 35).<Umzug in anderen Vergleichsraum> , paragraphs 18 ff; most recently Federal Social Court (BSG) judgment of February 17, 2016 – B 4 AS 12/15 R – SozR 4-4200 § 22 No. 88, paragraphs 13 ff). 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 especially transport connections, forms a homogeneous living and residential area overall (cf., e.g., Federal Social Court (BSG) judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19).<München I> , paragraph 20 ff).

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 guarantee that the current conditions of the rental housing market in the comparison area form the basis for the appropriate rent value and that this value is determined realistically. A concept is sound if, in addition to legal requirements, it also fulfills certain methodological prerequisites 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 appropriate rent values ​​are determined from the data (see, in particular, the Federal Social Court's decision of September 22, 2009 – B 4 AS 18/09 R – BSGE 104, 192 = SozR 4-4200 § 22 No. 30).<Wilhelmshaven> , RdNr 18 f; BSG of 18.11.2014 – B 4 AS 9/14 R – BSGE 117, 250 = SozR 4-4200 § 22 No. 81<Dresden> , Guiding 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<Fortschreibung schlüssiges Konzept> , paragraph 17 et seq.; see also Section 22a paragraph 3, Section 22b paragraphs 1, 2, Section 22c paragraph 1 SGB II).

c) There can be various methods for creating a coherent concept in this sense and for forming 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 legally mandates the application of a specific procedure (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).<Dresden> , paragraphs 19 ff; see also BT-Drucks 17/3404 p. 101 on § 22b: “Variety of concepts”; Šušnjar in Hohm, GK-SGB II, § 22 paragraph 142, status of the individual commentary 9/2017; cf. 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 job seekers under the Second Book of the Social Code<SGB II> and in social assistance according to the Twelfth Book of the Social Code<SGB XII> , prepared by v. Malottki et al., published by the Federal Ministry of Labour and Social Affairs, 2017, p. 207 ff; on the interdependencies between comparison area and coherent concept, see BSG of 11.12.2012 – 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 persons living 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 Federal Social Court, 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).

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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 may not 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 order do not serve as a benchmark for determining the reasonable costs of accommodation and heating (emphasis added by the court).

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 revision of the "old" concept (emphasis added by the Chamber).

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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 acceptable 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 were only introduced into the legal proceedings in October 2019 as part of the revision process. 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

Starting from the premise that the aforementioned concept, final version 2014, remains inconclusive and was ultimately admitted as such by the defendant – as demonstrated by the aforementioned, undisputed legal disputes of the plaintiff's husband – this, combined with the aforementioned observations of the presiding judge, leads to the conclusion that a valid cost reduction request was never issued. This is because the validity of such a request presupposes the existence of a coherent concept, which was lacking at the time of the cost reduction request(s) in question. Those issued by the defendant were ineffective in any case, as he never actually bore the costs. Furthermore, the foregoing explanations do not constitute a valid amendment that merely confirms the existing limits of reasonableness and their basis, or simply allows for higher eligible costs. Instead, the benefit provision at issue here, as determined by the Second Chamber and reviewed by the adjudicating chamber, is based on a fundamentally new concept, one that represents a significant change to the previous approach. The adjudicating chamber also agrees that the aforementioned statements by the Second Chamber, and the use of four comparison areas instead of the previous single comparison area, have fundamentally altered the concept's basis. This cannot be equated with a mere adjustment that simply concerns the correct determination of the appropriate amount of the reduced housing costs.

Whether this "new" concept itself was coherent is therefore irrelevant. The only decisive factor is that the cost-reduction request in question was not based on a coherent concept, and therefore cannot be considered a legally valid and, in particular, effective cost-reduction request that formed the basis for the granting of benefits.

The Federal Social Court's (BSG) ruling of July 21, 2021 (B 14 AS 31/20 R, juris) does not alter any of this, as the case here, beyond the undisputed objective error of the cost reduction request, does not solely and decisively concern merely adjusted values ​​or an initially erroneous representation of actually reasonable expenses. Rather, the realignment from one to four comparison areas creates a change in circumstances. As the BSG (as before) held, the dialogical nature of the cost reduction procedure requires the benefit provider to react to significant changes in circumstances and communicate any adjusted values ​​accordingly, which is undisputed and did not occur here. This is especially true given that the reasonable environment to which the housing search would have to extend ultimately changes as well.

Whether the concept applied during the period in dispute, or even the revised concept from May 2018, constituted a coherent concept within the meaning of social court jurisprudence—a question which the 2nd Chamber of the Kassel Social Court denied in its aforementioned judgment, even though only periods up to 2016 were in dispute, for reasons that are also compelling from the perspective of the present chamber—should therefore remain open, regardless of any revisions whatsoever, at least in cases such as the present one, since a revision was ultimately waived, at least retroactively, and in any event in the legal disputes of the plaintiff's husband, recourse was again made to the table values ​​of Section 12 of the Housing Benefit Act (WoGG) plus a "safety supplement" as an upper limit of appropriateness, as permitted by the chamber's previous jurisprudence (cf. Federal Social Court, judgment of June 16, 2015, B 4 AS 44/14 R).

This meant that, due to the lack of a coherent concept in previous years, a new cost-cutting procedure should have been initiated, which was not the case.

Thus, the respective initial decisions prove to be at least partially unlawful, so that the actions in both legal disputes had to be granted in their entirety and as requested.

The decisions regarding costs are governed by Section 193 of the Social Court Act (SGG).

The following is information on legal remedies.