L 6 AS 585/21 B ER
S 1 AS 98/21 ER (Social Court Kassel)
DECISION
In the appeal proceedings
1. xxx,
Applicant and respondent,
2. xxx, represented by applicant no. 1.,
Applicant and respondent,
3. xxx, represented by applicant no. 1.,
Applicant and respondent,
4. xxx, represented by applicant no. 1.,
Applicant and respondent,
5. xxx, represented by applicant no. 1.,
Applicant and respondent,
all: xxx,
Legal representative for items 1-5:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Jobcenter City of Kassel, represented by the management,
Lewinskistraße 4, 34127 Kassel,
Respondent and appellant,
The 6th Senate of the Hessian State Social Court in Darmstadt decided on February 21, 2022, through Judge xxx as presiding judge, Judge xxx and Judge xxx:
I. The respondent's appeal against the decision of the Social Court of Kassel of December 7, 2021 is dismissed as inadmissible.
II. The respondent shall reimburse the applicants for the costs necessary for pursuing their legal rights, including those incurred in the appeal proceedings.
The applicants are granted legal aid for the appeal proceedings without the obligation to pay in installments, with the appointment of lawyer Adam, Göttingen, under the conditions of a lawyer residing in the court district.
REASONS
I.
The parties are arguing, within the framework of preliminary legal protection, about the assumption of the actual costs of accommodation and heating when calculating basic income support benefits for job seekers under the Second Book of the Social Code (SGB II).
The applicant (1), born on [date] 1980, her husband (born in 1973), and their children (applicants 2 through 5), born on [date], [date], [date], and [date] respectively, live in the same household. The husband, or father of the applicants, receives supplementary benefits under Book XII of the German Social Code (SGB XII) – Social Assistance – (SGB XII) in addition to a disability pension from the statutory pension insurance, granted retroactively from June 1, 2020, by a decision dated March 29, 2021, due to orthopedic and psychiatric conditions. He and applicant 5 have been assessed as requiring level 2 care under Section 15 of Book XI of the German Social Code (SGB XI) – Social Long-Term Care Insurance. Applicant 5 has severe motor impairments due to Duchenne muscular dystrophy. In the assessment of the need for care, prepared by the Medical Service of the Hessian Health Insurance Fund on October 15, 2020, and authored by nursing professional xxx, the following are specifically described: climbing stairs is described as predominantly dependent, moving around within the living area and transferring as predominantly independent, and a significant need for support with self-care is noted, particularly with washing the upper body and genital area, personal hygiene of the head, showering and bathing, dressing and undressing, and using the toilet. The provision of a rehabilitation buggy appears advisable from a medical and nursing perspective. For further details, please refer to document number 232 in the respondent's electronically maintained benefits file (hereinafter: eLA No.).
Applicants 1 and 2, as well as their husband and father, are Turkish nationals; applicants 3 to 5 are German nationals. The husband/father of the applicants holds a permanent residence permit.
The applicants – and, until the pension approval is implemented, also their husband/father – have been receiving basic income support for jobseekers from the respondent since 2018. For the current benefit period from May 1, 2021 to April 30, 2022, the respondent granted the applicants (and their husband/father) basic income support benefits in the total amount of €1,295.03 per month for May to December 2021, €1,319.16 for January 2022, €1,309.04 for February 2022, €1,313.36 for March 2022 and €1,335.03 for April 2022 by decision of April 8, 2021 (eLA No. 274), amended by decision of April 13, 2021 due to the pension approval. For details, please refer to eLA No. 278.
The family had been living in an apartment on the fourth floor of a tenement building without an elevator since 2009; the respondent covered the full cost of their accommodation. However, the family had been looking for some time for a different apartment that would meet the disability-related requirements, particularly those of the fifth applicant, who had to be carried up the stairs.
In March 2021, the applicants requested the respondent's consent to rent their current apartment. This apartment is located on the ground floor, is 120 square meters in size, and has two bathrooms. The original rent, including advance payment for utilities, was to be €1,400, and the advance payment for heating was to be €100; reference is made to eLA No. 267 et seq. In light of this, the respondent refused consent to the move by letter dated April 6, 2021, arguing that the anticipated expenses were unreasonably high.
In subsequent correspondence between the parties, he indicated his willingness to consider the limits for a family of seven as appropriate in this specific case; the applicants stated that the landlord was prepared to reduce the requested rent by €50, and that they would cover the difference from their own funds if necessary. The applicants then rented the apartment, effective July 1, 2021, without the respondent's consent, by means of a lease agreement dated May 1, 2021. According to the lease agreement, the monthly base rent for the apartment is €1,100; in addition, there is an advance payment for utilities of €250; heating costs are to be settled directly with the energy supplier. For further details, reference is made to the lease agreement (eLA No. 299) and a rent certificate issued by the landlord (eLA No. 329).
Due to the relocation, the respondent issued an initial amendment notice (eLA No. 335) on June 16, 2021, effective from July 1, 2021, and amended it again by notice dated July 5, 2021, after the applicants had submitted a corresponding landlord's certificate (eLA No. 341) stating that the monthly advance payment for ancillary costs of €250 included a flat rate for heating costs of €80. He now granted benefits (only) to the applicants – no longer (also) for the benefit of their husband and father – in the total monthly amount of €1,675.15 for July to December 2021, €1,699.28 for January 2022, €1,689.15 for February 2022, €1,693.48 for March 2022, and €1,715.15 for April 2022. In doing so, he took into account the applicants' monthly housing needs of €842.30 and heating costs of €70.85. As he explained in the decision of June 16, 2021, he assumed that the applicants' move was fundamentally necessary, but had taken place without approval. Due to the illness of the fifth applicant and the husband/father of the applicants, the threshold for seven persons can be taken into account when calculating the eligible expenses for accommodation and heating, with five-sixths of this amount to be covered on a per capita basis. For further details, please refer to the two notices (eLA Nos. 335 and 350).
The applicants, through their legal representative, filed an objection (eLA No. 359) on July 14, 2021, against the decision of June 16, 2021, as amended by the decision of July 5, 2021. The respondent rejected this objection – which was not substantiated – as unfounded by a decision dated October 27, 2021, in which the decision identified (only) the applicants' husband/father as the objector. 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. In this case, it is undisputed that the move was necessary. However, an unwritten requirement is that the expenses for accommodation and heating of the future apartment must also be reasonable. The appellant incurs monthly housing and heating costs of €1,350 (basic rent: €1,100; utilities: €165; heating costs: €85). In contrast, a monthly amount of €1,010.76 (basic rent including utilities plus €85 for heating) is considered reasonable. The appellant's expenses significantly exceed the limit and are therefore not reasonable. Reference is made to eLA No. 376.
The applicants subsequently filed a lawsuit with the Kassel Social Court on October 29, 2021, which is pending there under file number S 1 AS 398/21, and simultaneously requested preliminary legal protection from the court.
During the initial proceedings, the respondent amended the granted benefits again by decision dated November 27, 2021, due to the statutory increase in standard benefit rates effective January 1, 2022, and set the total benefits at €1,711.28 for January 2022, €1,701.15 for February 2022, €1,705.48 for March 2022, and €1,727.15 for April 2022. The allowances for accommodation and heating remain unchanged. Reference is made to eLA No. 389.
In support of their application for preliminary legal protection, the applicants argued, in particular, that the concept used by the respondent to determine the maximum limit for reasonable housing costs was untenable. Furthermore, they argued that the care level 2 of their husband/father should also be taken into account when calculating the limit. Finally, they asserted that the provision of Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) should be applicable. They stated that they had previously financed the shortfall in housing costs from their standard benefits; this was no longer possible for them. Moreover, given their prior declaration of willingness to cover the difference between reasonable and actual housing costs from their own resources, their application should not be considered frivolous.
The respondent, on the other hand, argued that three and a half months after the apartment was rented and given the lack of substantiation in the objection, there was no need for expedited legal proceedings. There was no entitlement to an injunction: the concept he used for calculating reasonable housing costs was, contrary to the applicants' assertions, entirely sound. Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) only applies to new applications. Finally, grounds for an injunction had not been credibly demonstrated, since the applicants had been prepared in the summer to cover the difference between the approved allowances for accommodation and heating and the actual rent themselves. Furthermore, the bank statements submitted by the applicants raised insufficiently answered questions, which cast doubt on their need for assistance.
By order of December 7, 2021, the Social Court ordered the respondent to provisionally grant the applicants five-sixths of their actual housing and heating costs for the period from October 29, 2021, to April 30, 2022, taking into account the benefits already provided for this period. The court otherwise rejected the application for preliminary legal protection.
In its reasoning, the Social Court stated in particular that the application was largely justified. The prerequisites for issuing a preliminary injunction pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG) had been largely substantiated.
A claim for an order 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 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 an unnecessary move, only the previous amount is recognized (Sentence 2). Insofar as the expenses for accommodation and heating exceed the amount reasonable based on 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 Paragraph 1 in conjunction with Paragraph 3 of the German Social Code, Book II (SGB II) (Simplified Procedure for Access to Social Security due to the COVID-19 Pandemic) in the versions of March 10, 2021, and November 22, 2021 (valid from April 1, 2021, and November 24, 2021, respectively), Section 22 Paragraph 1 of the SGB II is to be applied to benefit periods beginning between March 1, 2020, and March 31, 2022, with the proviso that the actual expenses for accommodation and heating are considered reasonable for a period of six months. Subsequently, Section 22 Paragraph 1 Sentence 3 of the SGB II is to be applied with the proviso that the period specified in Section 67 Paragraph 3 Sentence 1 of the SGB II is not to be counted towards the period specified in Section 22 Paragraph 1 Sentence 3 of the SGB II.
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 actual costs of accommodation and heating are considered reasonable pursuant to Section 67, Paragraph 3, Sentence 1 of the SGB II. This provision applies even though neither the applicants' need for assistance nor their relocation is directly attributable to the COVID-19 pandemic. Section 67 of the SGB II is not limited to benefit recipients directly affected by the COVID-19 pandemic. Furthermore, the scope of Section 67, Paragraph 3, Sentence 1 of the SGB II is not limited to new applications but also covers continued benefit periods beginning after March 1, 2020. This is already evident from Section 67, Paragraph 3, Sentence 3 of the SGB II, which contains a special provision following a cost-reduction procedure and thus applies to a situation that can only arise when SGB II benefits are continued.
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 should only apply 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 (explanatory memorandum, BT-Drs. 19/18107, p. 25; see also 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. The costs of accommodation and heating, which are temporarily deemed reasonable under Section 67 Paragraph 3 Sentence 1 of the SGB II—namely, for the first six months of a benefit period beginning between March 1, 2020, and March 31, 2022—must 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 accommodation and heating costs at the reasonable limit would be thwarted under Section 22 Paragraph 4 of the SGB II (Bavarian State Social Court, decision of July 28, 2021 – L 16 AS 311/21 B ER –, juris para. 39). The exception under Section 67 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) is not applicable. Neither was a cost reduction procedure carried out for the new apartment, nor is such a procedure apparent for the old apartment.
The actual costs incurred by the applicants are to be covered from October 29, 2021, until the end of the benefit period on April 30, 2022. Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) establishes a presumption of reasonableness for the first six months, i.e., until the end of December 2021. Benefits are to be covered from October 29, 2021, onward, as retroactive benefits cannot generally be claimed through preliminary legal proceedings. Beyond December 2021, the obligation to cover the actual costs for accommodation and heating arises from Section 22 Paragraph 1 Sentence 3 of the 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. According to this, expenses for accommodation and heating, insofar as they exceed the amount appropriate to the particularity of the individual case, 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 changing residence, by renting out or in other ways, but generally for no longer than six months.
Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (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. A move or a reduction in 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 for accommodation from the Association for the Promotion of Autonomy for People with Disabilities, Supported Living program. Nevertheless, a more suitable rental offer could not be found. An internet search conducted by the court (Immowelt on December 7, 2021; search for at least 3.5 rooms in Kassel) also yielded no offers that were both affordable in terms of accommodation and heating costs and simultaneously accessible for people with disabilities (criterion: elevator or ground floor apartment). Against this background, the court deemed a short-term move to suitable and appropriate accommodation unrealistic. Furthermore, a rent reduction had already been negotiated with the landlord. The amount of the claim is limited to five-sixths of the actual accommodation and heating costs, amounting to a total of €1,125 per month, since the husband/father of the applicants is not eligible for benefits under the German Social Code, Book Two.
There is also a legal basis for issuing 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 fifth 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 Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II/Social Assistance – Unemployment Benefit II/Social Assistance Ordinance – (Alg II-VO). No expenses for a care service are apparent, and the respondent has also not included the care allowance in its previous benefit calculations. The monthly income of the household, minus the actual costs for the rented apartment and daily living expenses, results in a shortfall. This forces the applicants to either accumulate rent arrears at the risk of eviction or significantly reduce their ability to cover their basic living expenses. Past one-off incomes are irrelevant to this assessment, as these have clearly been exhausted.
The respondent implemented the order issued by the court of first instance by decision dated December 8, 2021, and provisionally granted the applicants benefits totaling €1,689.25 for October 2021, €1,887.00 each for November and December 2021, €1,923.13 for January 2022, €1,913.00 for February 2022, €1,917.33 for March 2022, and €1,939.00 for April 2022. The respondent revoked the previous decisions of April 8, 2021, July 5, 2021, and November 27, 2021, to that extent. As part of the justification, he included the following note in the decision: “The approval is only provisional in implementation of the decision of the Social Court of Kassel of December 7, 2021 – file no. S 1 AS 98/21 ER – until the final and binding conclusion of the main proceedings.” For further details, please refer to pages 135 et seq. of the court file (GA).
Subsequently, on December 17, 2021, the respondent filed an appeal, reiterating and elaborating on his previous arguments.
He requests that
the decision of the Social Court of Kassel of December 7, 2021 be overturned and that the applicants' request for interim legal protection be rejected.
The applicants request that
the appeal be dismissed.
They defend the challenged decision. The father, or husband, of the applicants submitted a sworn affidavit regarding the deposits into his account, stating specifically that he had borrowed €4,000 from his brother, which he intends to repay as soon as he is financially able. He used this money to pay the deposit for the new apartment. He deposited the remaining amount into his account and used it to purchase tickets for a family trip in the summer of 2021: His parents had passed away in 2020, but due to the COVID-19 pandemic, the family was only able to travel to Turkey last summer. For this trip, he borrowed another €1,000 in cash from a friend. Furthermore, he sold his old car for €4,000, bought a new one for €3,000, and used the difference to repay his debt to his friend. For further details, please refer to the court file, pages 189 et seq.
To supplement the facts and legal arguments, reference is made to the content of the court files and the administrative files of the respondent concerning the applicants.
II.
The respondent's appeal is inadmissible and, moreover, unfounded. The preliminary injunction issued by the Social Court is not to be revoked.
I. The subject of the appeal proceedings, since only the respondent has filed an appeal against the decision of the Social Court of December 7, 2021, is solely its obligation to provide the applicants with higher basic income support benefits for job seekers by way of an interim injunction, to the extent specified by the Social Court. Insofar as the Social Court rejected the applicants' further application, its decision remains unchallenged and is therefore not subject to review by the Senate.
II. The respondent's appeal is admissible in view of the amount of the benefits in dispute (§ 173 para. 1, para. 3 no. 1 in conjunction with § 143, § 144 para. 1 sentence 1 no. 1 SGG) and was filed in due form and time (cf. § 173 SGG regarding the relevant requirements). However, the appeal lacks the necessary legal interest required for any judicial proceeding, and thus also for appeal proceedings.
The need for legal protection is lacking or eliminated for an appeal filed by the benefit provider if, through an (in this respect) unconditional grant decision, it creates an independent legal basis for the disputed benefit and would therefore remain obligated to provide the benefit even if the appeal were successful. However, such a decision does not necessarily arise solely from the implementation of a first-instance order: This follows from the fact that a benefit provider who has lost before the social court is regularly obligated to implement the social court's decision due to the lack of suspensive effect of an appeal. However, if the appeal is successful, the benefit provider can immediately reclaim the benefits provided solely in implementation of the decision, without having to await the outcome of the main proceedings. The appeal by the benefit provider is and remains admissible if the implementation of the first-instance decision either occurs entirely without the issuance of a formal notice – which is not strictly necessary in this case – or if an implementing notice is nevertheless issued, it is sufficiently clear that it is only issued provisionally in implementation of the decision and therefore does not create an independent legal basis for an entitlement to the granted benefits and their even provisional retention, and that the affected party must (immediately) reimburse the benefit granted in implementation of the court decision if the implemented decision is overturned (cf. in this sense – correctly – LSG Berlin-Brandenburg, decision of May 16, 2008 – L 23 B 26/08 SO ER –, juris, para. 11).
This has not happened in the present case, or at least not with sufficient clarity: After the first-instance decision was issued, the respondent decided not merely to execute it, but to issue a formal decision implementing it. Furthermore, the corresponding decision of December 8, 2021, is not (only) a purely procedural decision, but rather an amendment to the previously issued benefit decisions, which the respondent modified on the basis of Section 48 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book Ten – Social Administrative Procedure and Social Data Protection – (SGB X) in conjunction with Section 330 Paragraph 3 Sentence 1 of the German Social Code, Book Three – Employment Promotion – (SGB III) and Section 40 Paragraph 2 No. 3 of the German Social Code, Book Two (SGB II). The decision thus has substance that is not limited to the mere implementation of the preliminary injunction, but materially intervenes in the regulatory framework of the previously issued decisions. It thus goes significantly beyond a mere implementation decision; its binding effect and modifiability must therefore be measured against the regulations governing administrative procedure (cf. regarding implementing decisions that – as here – were issued on the basis of administrative procedure regulations, ibid. Hess. LSG, decision of February 22, 2016 – L 9 AS 66/16 B ER –, juris, para. 5 and Bayerisches LSG, decision of April 11, 2011 – L 16 AS 168/11 B ER –, juris, para. 18).
In such a case, it is (at least) required that a decision, if it is intended only to create a provisional ground for retention corresponding to the interim injunction, which will be eliminated upon success in subsequent appeal proceedings, express this sufficiently clearly in accordance with the rules of social procedural law governing only provisional decisions. Whether this is the case here, as generally with provisional decisions, is ultimately a question of interpretation; the decisive factor is therefore how the recipient of the decision could understand it from the so-called objective recipient's perspective (cf. in this regard and for the following: Federal Social Court, Judgment of April 6, 2011 – B 4 AS 119/10 R –, BSGE 108, 86, para. 18). The authority's intention to regulate the decision, if not expressed clearly enough, is irrelevant. The provisional nature of the decision itself has the character of an administrative act. It is therefore necessary that the administrative act clearly indicates that the administration has issued a (only) provisional permit. The so-called defining characteristics of a provisional decision must be unequivocally recognizable (cf. Federal Social Court [BSG], judgment of April 7, 2016 – B 5 R 26/15 R –, SozR 4-2600 § 89 No. 3 and Federal Social Court [BSG], judgment of July 1, 2010 – B 11 AL 19/09 R –, BSGE 106, 244).
In the specific case, the respondent did not express the (only) provisional nature of the decision in the operative part of the decision dated December 8, 2021; (only) in the reasoning section did he state: "The grant is merely provisional in implementation of the decision of the Kassel Social Court of December 7, 2021 – file no. S 1 AS 98/21 ER – until the final and binding conclusion of the main proceedings." In the opinion of the Senate, this is not sufficient to allow the respondent to demand repayment even after the conclusion of a successful appeal procedure.
As already explained, a preliminary decision must clearly state that it is a provisional decision and does not anticipate the final decision (see again Federal Social Court [BSG], judgment of April 7, 2016 – B 5 R 26/15 R –, SozR 4-2600 § 89 No. 3 and Federal Social Court [BSG], judgment of July 1, 2010 – B 11 AL 19/09 R –, BSGE 106, 244); the beneficiary must be able to prepare for a possible different final ruling and the potential reimbursement claim associated with it. This, and the fact that the provisional nature directly shapes the character of a corresponding grant decision, means that, as a rule, the provisional nature must be part of the ruling itself. Generally, when interpreting a decision, one must first consider the wording of the operative clause (see, for example, Federal Social Court [BSG], judgment of March 2, 2010 – B 5 R 104/07 R –, juris, para. 12). However, the reasoning behind a decision (or even an accompanying explanatory letter; see Federal Social Court [BSG], judgment of April 6, 2011 – B 4 AS 119/10 R –, BSGE 108, 86, para. 19) can also be used to interpret a decision, provided that the provisional nature of the decision is sufficiently clear in the outcome. Therefore, it seems conceivable to consider the designation as provisional only within the context of the reasoning as sufficient (albeit unfortunate), so as not to necessarily deny the provisional character on that basis alone.
This point can ultimately remain open, as the respondent failed to make the reservation of provisionality, which was also contingent on the success of the appeal proceedings, sufficiently clear in the decision of December 8, 2021. Firstly, the respondent did not adequately express the defining characteristics of a merely provisional decision in the decision: It is insufficient to simply label the grant as provisional without further explanation. Rather, the affected party must be made aware that such a decision merely grants them a provisional benefit of a distinct kind, which is not identical to the final benefit and is, at least as a rule, replaced by its determination (cf., regarding advance payments, Federal Social Court, judgment of October 9, 2013 – B 5 R 8/12 R –, BSGE 112, 74, para. 16), without any binding effect from the provisional grant, meaning that it cannot establish any legitimate expectation of continued benefit. Since this is already lacking, it can remain open whether a reference to a potentially existing obligation to reimburse is also mandatory – which is likewise not present here (in this sense, e.g., Hengelhaupt, in: Hauck/Noftz, SGB II, § 41a Rn. 205; Grote-Siefert, in: jurisPK-SGB II, § 41a Rn. 37).
Secondly, the wording in the decision regarding the (only) provisional implementation of the first-instance ruling refers solely to the conclusion of the main proceedings. Given this, it is generally reasonable to assume that, on this basis, a correction is only possible after the conclusion of the main proceedings (cf., regarding a corresponding formulation, also LSG Mecklenburg-Vorpommern, decision of January 13, 2014 – L 9 SO 20/13 B ER –, juris, para. 48, and LSG Sachsen-Anhalt, decision of March 16, 2011 – L 5 AS 443/10 B ER –, juris, para. 33). In the present case, it should also be noted that the respondent issued the decision before the appeal was filed. From the applicants' perspective at the time of receipt, it was therefore not apparent that (the respondent intended to appeal the first-instance decision, and) the implementation order was therefore, possibly implicitly, subject to a corresponding reservation. Rather, it seemed obvious to the applicants to interpret the reservation, according to its wording, as referring (solely) to the already pending main proceedings.
After considering all the evidence, the Senate is of the opinion that the grounds for retention established by the decision of December 8, 2021, would not be eliminated by a success of the respondent in the appeal proceedings. Consequently, there is no legal interest in the respondent's appeal.
III. Furthermore, the appeal is unfounded, although the Senate is not prevented by the fundamental priority of the admissibility review over the merits review, at least in preliminary injunction proceedings, from basing its decision on this point as well, since no legal disadvantages for the parties are associated with such a procedure (cf. in detail the Senate's decision of June 30, 2020 – L 6 AS 327/20 B ER –, juris, para. 24).
1. The Social Court was initially correct in assuming the admissibility of the application for preliminary legal protection.
a) Although the applicants, who are represented by counsel, did not explicitly address the (legal) representation of the minor applicants 2 to 5, the Senate is nevertheless convinced that they are adequately represented in these proceedings and that the application was validly filed on their behalf. Their mother, applicant 1, is herself a party to the proceedings; the Senate has no doubt that she is also acting on behalf of her children in this respect. The father of applicants 2 to 5 also actively contributed to the proceedings by submitting a sworn affidavit; this implies (at least) (implied) approval of the conduct of the proceedings on behalf of his children.
b) The fact that the respondent, in the decision on the objection, only named the husband or father of the applicants as the objector does not preclude admissibility. This may be relevant in the main proceedings, since, according to Section 78 Paragraph 1 Sentence 1 of the Social Court Act (SGG), the conclusion of the preliminary proceedings is regularly one of the admissibility requirements that must be met at the time of the court's decision. An application for an interim injunction, on the other hand, is admissible without issue even before the decision on the objection is issued, so that in the present proceedings it can remain open whether, by way of interpretation, this decision can also be applied to the applicants in these proceedings.
c) The application for interim legal protection was not lacking in a need for legal protection due to the failure to provide grounds for the objection and the time interval between the move and the application.
The lack of a statement of grounds for an objection is not equivalent to the failure of the benefit provider to address the matter beforehand, which regularly calls into question the need for legal protection through (immediate) judicial action. While the lack of a statement of grounds could therefore be taken into account at the cost level if the respondent would have immediately accepted the claim based on the statement of grounds provided (only) in the preliminary injunction proceedings, it does not call into question the need for legal protection; this is all the more true if the benefit provider opposes the claim even after being informed of the statement of grounds now submitted.
The time lapse between the move and the application for preliminary legal protection does not call into question the need for legal protection. The law does not stipulate a time limit; the necessary element of circumstance for forfeiture is lacking.
The Senate is therefore not of the opinion that the applicants' application for preliminary legal protection is contrary to good faith and therefore inadmissible, even though the social worker, who acted on their behalf vis-à-vis the respondent in the summer of 2021, had stated that, if the respondent agreed to the rental of the apartment, the applicants were prepared to cover the difference between a maximum allowance for reasonable expenses for accommodation and heating, calculated for a seven-person household, and the actual costs from their own resources. This follows directly from Section 46 Paragraph 1 of the German Social Code, Book One – General Part – (SGB I), which stipulates that beneficiaries are not bound by waivers or similarly disadvantageous declarations regarding their future entitlements. It is therefore unnecessary to determine whether the conditions to which the corresponding promise was attached were fully met by the respondent.
d) No further concerns regarding the admissibility of the application for interim legal protection are apparent.
2. The Senate also considers the first-instance decision regarding the applicants' request for preliminary benefits to be justified on the merits. The prerequisites for issuing a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to the extent disputed in the appeal proceedings were and are met. In this respect, the Senate initially refers to the reasoning of the Social Court.
a) The court may issue a corresponding order if it appears necessary to avert substantial disadvantages (Section 86b Paragraph 2 Sentence 2 of the Social Court Act). Such a disadvantage can (only) be assumed if, on the one hand, the applicants have – potentially – a substantive legal claim against the respondent in the main proceedings (claim for an order) and, on the other hand, it is unreasonable to expect them to await the decision on the claim in the main proceedings (ground for an order).
The claim for an injunction and the grounds for it are not isolated entities, but rather interrelated, with the requirements for the claim for an injunction decreasing as the urgency or severity of the threatened harm (the grounds for the injunction) increases, and vice versa (cf., for the established case law of the Hessian State Social Court: decision of June 29, 2005 – L 7 AS 1/05 ER –, info also 2005, 169; decision of September 7, 2012 – L 9 AS 410/12 B ER – and decision of September 5, 2018 – L 6 AS 216/18 B ER –; also Keller, in: Meyer-Ladewig et al., SGG – Commentary, 13th ed. 2020, § 86b para. 27 et seq.): If an action on the merits would be manifestly inadmissible or unfounded, the application for a preliminary injunction is, in principle, inadmissible regardless of the grounds for the injunction. The application may be rejected because no legally protected right exists. However, if a claim on the merits would be clearly well-founded, the requirements for the grounds for the injunction are reduced, although these cannot be entirely dispensed with. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the factual or legal situation is not possible in the preliminary injunction proceedings, a balancing of interests must be undertaken to determine which party can more reasonably be expected to wait for the decision on the merits. In this balancing, the applicants' fundamental rights, insofar as they are affected by the decision, must be fully taken into account (see Federal Constitutional Court, Third Chamber of the First Senate, decision of May 12, 2005 – 1 BvR 569/05 –, info also 2005, 166).
b) Based on these principles, the Social Court was initially correct in affirming a claim for an order.
(aa) The respondent has not challenged the applicants' entitlement to the disputed ongoing subsistence benefits under Book Two of the German Social Code (see Sections 7 et seq. of Book Two of the German Social Code) – or at most with regard to their need for assistance, which will be addressed in the explanations concerning the grounds for the order. The Senate therefore sees no reason for further explanation on this point, at least within the scope of these proceedings.
bb) Following the summary examination required in the preliminary legal protection proceedings, the applicants are entitled to the further benefits provisionally awarded by the Social Court, taking into account the actual expenses for accommodation and heating, also in terms of amount.
(1.) The Senate may leave open the question of whether, in view of the special housing needs that exist in the specific case with regard to the disability of applicant no. 5 (and of the father or husband of the applicants), the expenses for the currently occupied apartment are already to be considered reasonable with regard to the general rules of Section 22 Paragraph 1 of the German Social Code, Book II.
As stipulated in Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), the appropriateness of the accommodation must be assessed based on the specific circumstances of each individual case. Due to the first applicant's wheelchair use, a greater need for space is likely, which the respondent has accepted. However, the fifth applicant also likely requires a separate room to allow his siblings undisturbed sleep, as the care assessment prepared by the Medical Service of the Health Insurance Funds (MDK) indicates that he occasionally wakes up in pain. He then needs his legs massaged and requires attention. Furthermore, he clearly requires assistance, particularly with personal hygiene, which necessitates a correspondingly longer time commitment. Therefore, the family's need for a second bathroom also seems plausible. Finally, the apartment must be either on the ground floor or accessible by elevator. Whether these specific circumstances are adequately addressed by basing the appropriateness limit on a seven-person household instead of a six-person household appears doubtful, but this will ultimately only be definitively clarified in the main proceedings.
In this context, the Senate points out that additional housing needs due to disability are generally not to be divided equally among the household members, but rather increase the individual needs of the member (or members) of the household in whose person the needs-increasing circumstances exist (see, for example, Federal Social Court, judgment of August 22, 2013 – B 14 AS 85/12 R –, SozR 4-4200 § 22 No. 71, para. 23; Luik, in: Eicher/Luik/Harich, SGB II, 5th ed. 2021, § 22 para. 94). In the specific case, this means that increased needs arising from the father or husband of the applicants cannot be claimed by the applicants in this case, and increased needs arising from the fifth applicant cannot be claimed by the other applicants. However, the additional needs arising from his disability (wheelchair accessibility with corresponding space requirements and accessibility of the apartment; – presumably – a second bathroom and a separate room) are much more apparent than in the case of the applicant's father or husband. Consequently, the obligation imposed by the Social Court on the respondent (and not the social welfare agency) is likely correct, although with the proviso that an equal division based on headcount is probably not feasible.
(2.) Based on the summary examination required in preliminary legal protection proceedings, the Social Court was at least correct in assuming that, for the duration of the preliminary injunction it issued, a claim to the full reimbursement of actual expenses arises from the regulations on the simplified procedure for access to social security due to the COVID-19 pandemic, specifically from Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) (cf. Bittner, NZS 2020, 332, regarding these regulations).
Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) stipulates, insofar as it modifies Section 22 Paragraph 1 Sentence 1 SGB II, that for a benefit period beginning between March 1, 2020, and March 31, 2022, the actual expenses for accommodation and heating are deemed reasonable for a period of six months. According to the wording of the provision, this applies without any limitation on the amount, even in cases of very high expenses (see again Bittner, NZS 2020, 332, 333, as well as the decisions already cited by the Social Court). According to Section 67 Paragraph 3 Sentence 3 SGB II, this deemed reasonableness does not apply if the benefits for accommodation and/or heating were already reduced to a reasonable level during the preceding benefit period – which is not the case here. According to Section 67 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), after the expiry of the six-month fictitious period from Section 67 Paragraph 3 Sentence 1 of the SGB II, the regulation from Section 22 Paragraph 1 Sentence 3 of the SGB II shall apply with the proviso that the fictitious period shall not be counted towards the deadline for cost reduction.
As the Social Court rightly stated, the latter provision clarifies that Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) applies not only to new applications but also to applications for continued benefits. Moreover, the present case demonstrates that the purpose of the provision also supports its application, at least when a move becomes necessary during the period shaped by the coronavirus pandemic and the resulting limited opportunities to search for and view new accommodation: Due to these restrictions, it will often be more difficult to find accommodation that meets regular standards, so the expansion of the appropriateness standard brought about by Section 67 Paragraph 3 of the SGB II is also justified in such cases. The very general justification for the draft law on easier access to social security and the deployment and safeguarding of social service providers due to the coronavirus SARS-CoV-2 (social protection package), which has already been cited by the Social Court, according to which those “affected by the effects of the pandemic […] should not also have to worry about their housing” (BT-Drs. 19/18107 p. 25), already speaks in favor of a broad scope of application.
In any event, for the duration of the preliminary injunction issued by the Social Court, the respondent is therefore obligated, pursuant to Section 67 Paragraph 3 Sentences 1 and 3 in conjunction with Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), to cover the actual costs of accommodation and heating incurred by the applicants in this case. The Senate can leave open the question of whether – as the wording might suggest – the six-month period under Section 67 Paragraph 3 Sentence 1 SGB II always begins at the start of a benefit period, in this specific case, May 1, 2021, or whether the start of the period should be determined by the day of the move, which certainly corresponds more closely to the purpose of the regulation. In the present case, due to Section 67 Paragraph 3 Sentence 2 SGB II, the six-month period from Sentence 1 is followed without reduction by the standard maximum period of six months under Section 22 Paragraph 1 Sentence 3 SGB II. In addition, to avoid repetition, the Senate refers to the relevant considerations of the Social Court.
cc) In view of the high probability that the applicants will be able to demand (at least until 30 April 2022) that their actual expenses be taken into account, the grounds for the order should not be subject to excessive requirements.
The Senate therefore assumes that the applicants cannot be referred to claiming the care allowance. There is strong evidence to suggest that, according to Section 1 Paragraph 1 No. 4 of the Second Book of the Social Code (SGB II), this allowance is ultimately not to be considered income. While this does not preclude its relevance to the grounds for the injunction, given the considerable prospects of success in the main proceedings, the Senate considers this inappropriate in the present case.
The grounds for the injunction are not called into question by the money received by the applicants' father/husband last summer. At least when considering the clarification of the facts that is both possible and required within the framework of preliminary legal protection proceedings, the applicants' current need for assistance is not called into question (and thus neither the claim for an injunction nor the grounds for the injunction are affected). The Senate considers the explanations provided by the applicants' father/husband in this regard to be sufficiently plausible to at least form the basis of the decision in the preliminary legal protection proceedings.
3. The decision on costs is based on the corresponding application of Section 193 of the Social Court Act (SGG).
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
