VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter City of Kassel,
represented by Managing Director Christian Nübling,
Lewinskistraße 4, 34127 Kassel
Defendant,
The 4th Chamber of the Social Court of Kassel, in the oral proceedings of May 12, 2022, with the presiding judge, Judge xxx, as well as the lay judge Ms. xxx and the lay judge Mr. xxx, rendered the following judgment:
The defendant's decision of December 18, 2020, as amended by the appeal decision of February 2, 2021, is hereby overturned. The defendant is ordered to grant the plaintiff benefits for accommodation and heating costs for the period from November 1, 2020, to March 31, 2021, in the amount of the actual expenses incurred.
The defendant must reimburse the plaintiff for the necessary extrajudicial costs.
FACTS
The parties are in dispute over the granting of higher housing costs (KdU) within the framework of the basic income support benefits granted to the plaintiff under the Social Code/Book Two (SGB II) for the period from 1 November 2020 to 31 March 2021.
The plaintiff, born in 1998 and originally from Eritrea, came to Germany in 2015. He has lived in his own apartment in Kassel, located at [address redacted], since April 1, 2017. His housing costs were initially covered by the City of Kassel as part of youth welfare services. On September 1, 2018, the plaintiff began vocational training as a [job title redacted]. He has since completed this training and has been employed by the company where he trained, subject to social security contributions, since February 2022.
From October 1, 2018, the plaintiff received benefits under Book II of the German Social Code (SGB II) from the defendant. On October 10, 2018, the defendant notified the plaintiff of his excessive housing costs and pointed out that only a gross rent of €393 was considered reasonable. The plaintiff continued to receive the actual housing costs up to and including March 2019. From April 1, 2019, the plaintiff received housing costs limited to the reasonable limit of €393 gross rent.
By letter dated March 11, 2020, the property management company informed the plaintiff that the property xxx was being sold. In a further letter dated May 28, 2020, the property management company informed him that the new owners intended to move into apartments xxx themselves. At the same time, the property management company offered him an equivalent apartment in xxx or xxx.
On July 1, 2020, the plaintiff moved into apartment xxx with another person. According to the rent certificate dated August 18, 2020, the basic rent for the 45.82 m² apartment was €310, plus advance payments for operating costs of €105, and separate water/sewage costs. Taking into account that the plaintiff was living there with another person, the defendant granted the plaintiff provisional SGB II benefits for the period from October 1, 2020, to March 31, 2021, by decision dated August 21, 2020 – and also by subsequent amended decisions – taking into account half of the actual housing costs (€207) and a pro rata share of the heating cost advance payments of €29.50.
On October 12, 2020, the plaintiff informed the defendant that he had found a new apartment and provided the details of an apartment in [address omitted]. The defendant then inquired why he wanted to move again (letter dated October 13, 2020). On October 22, 2020, the plaintiff stated that a move was necessary because his old apartment had been sold to a new owner. He further stated that his current apartment was a shared flat, which he found unsuitable due to various disagreements and limitations. The plaintiff did not respond to the defendant's request to describe these disagreements in more detail. It was not until December 2020 that the plaintiff informed the defendant that he had moved to [address omitted] in 34125 Kassel on November 1, 2020. According to the rental agreement for this 54.93 sqm apartment, which he occupies alone, the basic rent is €329 plus operating costs, water prepayment and cable connection fees, resulting in a total gross rent of €443.
In the contested decision of December 18, 2020, the defendant ruled that the costs for the apartment occupied from November 1, 2020, would not be considered in the full amount of the actual housing costs. The housing costs would only be recognized at the previous rate of €237 per month. The reason given was that the plaintiff had not obtained an assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), before concluding the new lease. However, such an assurance would not have been granted even if it had been, as there was no need for it to conclude the lease.
The plaintiff filed an objection against this decision. He stated as grounds that he had only moved into xxx temporarily – together with his neighbor – until he found his own apartment (then: xxx).
By decision dated February 2, 2021, the defendant rejected the appeal. He reasoned that, according to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), reasonable expenses for accommodation and heating in the case of an unnecessary move could only be recognized up to the amount of the previous need. The move to xxx was deemed unnecessary. The plaintiff's assertion that the reason for the move was the new owner's personal use of the property could not be considered, as this reason pertained to the apartment in xxx. Evidence was lacking to support the claim that living in xxx was only intended to be temporary until he found his own apartment. Furthermore, it was not proven that continued cohabitation with his roommate had been unreasonable.
The plaintiff filed a lawsuit against this decision with the Kassel Social Court on February 13, 2021. He argues that the defendant did not sufficiently consider the reasons for the move to xxx. Furthermore, he maintains that, in accordance with Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), the defendant is obligated to cover the actual housing costs in any case.
The plaintiff requests
that the defendant's decision of 18 December 2020, as amended by the appeal decision of 2 February 2021, be overturned and that the defendant be ordered to grant him the actual amount of accommodation and heating costs incurred for the period from 1 November 2020 to 31 March 2021.
The defendant requests
that the action be dismissed.
He bases his decision on the contested rulings. The necessity of the move to xxx has still not been proven. The provision of Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) does not apply in this situation.
At the oral hearing on May 12, 2022, the court heard the plaintiff's testimony regarding the reasons for his move to xxx. Reference is made to the minutes of the hearing.
Regarding further details and the facts and legal issues, reference is made to the court file and the electronically submitted administrative file of the defendant.
REASONS FOR DECISION
I. The action is admissible as a combined action for annulment and performance pursuant to Section 54 Paragraph 1 Sentence 1, Paragraph 4 of the Social Court Act (SGG).
II. The admissible claim is also well-founded.
The defendant's decision of December 18, 2020, as amended by the appeal decision of February 2, 2021, is unlawful and infringes upon the plaintiff's rights. He is entitled to benefits under Book II of the German Social Code (SGB II) for the period from November 1, 2020, to March 31, 2021, taking into account his actual costs for accommodation and heating.
1. According to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are reasonable. Section 67 Paragraph 3 of the SGB II modifies this regulation and stipulates that, for benefit periods beginning between March 1, 2020, and March 31, 2022, Section 22 Paragraph 1 of the SGB II is to be applied with the proviso that the actual expenses for accommodation and heating are considered reasonable for a period of six months.
The plaintiff moved into [address] on November 1, 2020. The monthly gross rent for this apartment is €443. This gross rent exceeds the threshold of €416.50 stipulated by the defendant's housing cost (KdU) concept developed by Rödl & Partner, effective September 1, 2019, as reasonable for a single-person household in the city of Kassel. If one were to assume the validity of the housing cost concept, it would then be concluded that the plaintiff moved into an apartment whose gross rent does not meet the criteria for reasonableness as defined in Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). However, the court is convinced that Section 67 Paragraph 3 of the SGB II applies, which establishes a legal fiction regarding the reasonableness of housing costs and heating costs for a period of six months.
The court assumes a broad scope of application for Section 67 Paragraph 3 of the German Social Code, Book II (SGB II), and considers this to include new tenancies. The wording of the provision does not contain any limitation that the six-month deemed reasonable period applies only to existing apartments. It should be noted that the issue here is not that the job center is obligated to cover unreasonably high costs indefinitely, but rather that the benefit recipients are granted an additional six-month transitional period, which is added to the standard six-month period under Section 22 Paragraph 1 Sentence 3 of the SGB II (Section 67 Paragraph 3 Sentence 2 of the SGB II). The Higher Social Court (HLSG) apparently also assumes that this standard applies in the case of a relocation (decision of 21 February 2022 – L 6 AS 585/21 B ER – 2nd principle, juris; see also Higher Social Court of Lower Saxony-Bremen, decision of 29 September 2020 – L 11 AS 508/20 B ER -; contra: Higher Social Court of Schleswig-Holstein, decision of 23 March 2022 – L 6 AS 28/22 B ER – para. 20, juris).
Section 67, paragraph 3 of the German Social Code, Book II (SGB II) only formulates an exception to the presumption of reasonableness in its third sentence. According to this, sentence 1 does not apply in cases where, in the preceding benefit period, reasonable expenses, rather than actual expenses, were recognized as the need. This exception is not applicable here, because the plaintiff, while residing at [address], only received pro rata SGB II benefits during his time there – because the apartment was occupied by two people – but these benefits were based on the actual costs of accommodation and heating. Reduced housing costs were only granted to the plaintiff for his previous apartment at [address], which, however, cannot be considered here.
Contrary to the defendant's assertion, the costs for accommodation and heating for [address] are not to be reduced to the amounts previously allocated to the plaintiff for his previous apartment [address]. While Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) stipulates that if accommodation and heating costs increase after a move that was not deemed necessary, only the previous allowance is to be recognized, the factual prerequisites for this provision are not met. The court is convinced that the plaintiff's move from [address] to [address] was "necessary" within the meaning of this regulation. The standard for assessing the necessity of a move does not require that such a move be absolutely essential; rather, a plausible and objectively justifiable reason suffices (see Berlit in: LPK-SGB II, 7th ed. 2021, Section 22, marginal notes 122 et seq. with numerous examples). The benchmark is whether there is a plausible, comprehensible and understandable reason that would also have guided a person not entitled to benefits and that cannot be eliminated in any other way (ibid.).
The court considers such a plausible reason for the plaintiff's move to xxx to exist. The court bases this primarily on the plaintiff's personal testimony during the oral hearing. The plaintiff was initially motivated to move by a letter from the property management company stating that the ownership had changed and the new owner intended to use the house himself, even though he was not legally obligated to do so at that time. A sale of the house does not, in principle, affect the existing tenancy, and the apartment had not been terminated due to the owner's own use. However, the circumstances compelled the plaintiff to look for a new apartment. He stated that he had not immediately found another apartment and had therefore initially moved into an apartment offered by the then-property management company with his neighbor, a fellow countryman. The other three tenants had also moved out of the house xxx; one had moved to xxx, one to another apartment in xxx, and he and his neighbor had moved into the other remaining available apartment xxx. Since, according to the plaintiff, the neighbor's girlfriend and a child also lived in the apartment, the court finds it understandable that this living arrangement was only a temporary solution for the plaintiff. He further explained that he also had to prepare for his intermediate exams during this period. Considering the size of the apartment, at just under 46 square meters, the court finds it entirely plausible that the plaintiff was eager to find his own apartment, which he ultimately succeeded in doing.
Since the plaintiff was required to move to xxx, the defendant was not authorized to grant the plaintiff only the costs of accommodation and heating for the new apartment in the amount of the benefits paid for the previous apartment, albeit at a lower rate.
Whether Section 67 Paragraph 3 of the German Social Code, Book II (SGB II) also excludes the application of Section 22 Paragraph 1 Sentence 2 of the SGB II can remain undecided in the present case, since the requirements of Section 22 Paragraph 1 Sentence 2 of the SGB II have not been proven.
The defendant was therefore ordered to grant the plaintiff the actual costs of accommodation and heating for the period from 1 November 2020 to 31 March 2021.
III. The decision on costs follows from § 193 SGG.
The following is information on legal remedies.
