VERDICT
In the legal dispute
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 11th Chamber of the Social Court of Kassel, in the oral proceedings of January 12, 2023, with Judge xxx as presiding judge and Lay Judges Ms. xxx and Mr. xxx presiding, has ruled as follows:
The decision of October 28, 2020, as amended by the appeal decision of May
21, 2021, the decisions of January 29, 2021 and February 4, 2021, as amended by the appeal decision of May 25,
2021, and the decision of April 7, 2021, with regard to the decision of January 15, 2020, as amended by the appeal decision of May 28, 2021,
are amended, and the defendant is ordered to grant the plaintiff basic income support benefits from March 1, 2020, to December 31, 2021, in accordance with Chapter Four of Book Twelve of the Social Code, taking into account the actual accommodation costs.
The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS
The plaintiff seeks higher basic income support benefits under Chapter Four of Book Twelve of the Social Code (SGB XII – Basic Income Support for the Elderly and Persons with Reduced Earning Capacity) for the periods from March 1, 2020 to October 31, 2020 (here within the framework of a review decision pursuant to Section 44 of Book Ten of the Social Code – SGB X), from November 1, 2020 to January 31, 2021 and from February 1, 2021 to January 31, 2022, taking into account accommodation costs in the amount of the housing allowance table plus a ten percent safety supplement or taking into account the actual accommodation costs. This concerns the validity of the concept applied by the defendant to determine the appropriateness of accommodation costs, developed by the company Analyse und Konzepte, Hamburg, in the version dated May 18, 2018 (and the subsequent amendments), and the application of the pandemic-related provision of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII).
The plaintiff, born on xxx, has been receiving a disability pension from the statutory pension insurance since February 13, 2012, initially on a temporary basis, which has been granted as a permanent pension since the end of 2019. In addition to the disability pension and the wages he temporarily earned from employment in a workshop for disabled persons, the plaintiff initially received subsistence assistance from the defendant and, from February 1, 2020, basic income support benefits under Chapter Four of the German Social Code, Book XII (SGB XII).
From May 1, 2016 to February 29, 2020, the plaintiff lived in a 62 m² 3-room apartment in xxx in Witzenhausen (Apartment 1, note). The defendant consistently took the actual accommodation costs into account when calculating benefits.
On March 1, 2020, the plaintiff moved into a 75 m² three-room apartment in [address redacted] in Witzenhausen (apartment 2, note). The monthly base rent was €350, and the advance payments for operating and heating costs were each stated as €75. After informing the plaintiff before the move that the housing costs were unreasonable, the defendant, starting in March 2020, took into account accommodation costs within the limits of what is considered reasonable, according to the concept developed by the company Analyse und Konzepte, in the amount of €305.76 (base rent plus cold utilities for a one-person household), as well as €65 for actual heating costs. The adequacy limit for the months of March and April 2020 was based on the concept for determining the adequacy of accommodation costs in the Werra-Meißner district, developed by the company Analyse und Konzepte and valid from May 2018. From May 2020 onwards, the values increased to €316.76 (basic rent and cold utility costs for a one-person household) due to an update of the concept in 2020.
From November 1, 2020, the plaintiff occupied a 49 m² three-room apartment in [address redacted] in Witzenhausen (apartment 3, note). The monthly base rent was €280, and the advance payments for operating and heating costs were €65 each. After the plaintiff's subsequent move, the defendant calculated the base rent and operating costs (excluding heating) at €316.76 per month, effective November 1, 2020. Heating costs were included in full (as before).
From January 2022, the limits of what is considered reasonable were further adjusted, so that from 1 January 2022 the plaintiff's accommodation costs are taken into account in their actual extent.
By decision dated January 15, 2020, the defendant granted the plaintiff basic income support under Chapter Four of the German Social Code, Book XII (SGB XII), effective February 1, 2020, for the benefit period from February 1, 2020, to January 31, 2021. The plaintiff's legal representative filed a review application on February 26, 2021, regarding the accommodation costs taken into account in the benefit calculation for the period from March 2020 to October 2020. This application was rejected by the defendant by decision dated April 7, 2021. The defendant stated that, despite being informed orally and in writing about the unreasonableness of the accommodation and heating costs for the apartment at [address redacted] in Witzenhausen (Apartment 2, note) and the resulting refusal of the social welfare agency to approve the tenancy, the plaintiff had moved into this apartment on March 1, 2020. The costs for accommodation and heating for apartment xxx in Witzenhausen (apartment 2, note) were therefore considered in the period from March 1, 2020 to April 30, 2020, based on the previous guidelines of the Werra-Meißner district dated May 1, 2018, regarding the appropriateness of accommodation and heating costs in accordance with Section 42 in conjunction with Section 35 of the German Social Code, Book XII (SGB XII), in the amount of €305.76. From May 1, 2020 to October 31, 2020, after adjustment of the accommodation costs, €316.76 was considered for basic rent and additional costs in accordance with the appropriateness regulations valid from May 1, 2020. The Werra-Meißner district has had a "conclusive concept" within the meaning of the case law of the Federal Social Court since May 2018. A deviation from the reasonable values established by the concept is not warranted in this case, as there are no sufficient grounds for doing so. Heating costs were actually taken into account at a monthly amount of €65 during the period in dispute.
The plaintiff's legal representative filed an objection on April 9, 2021, challenging the investigations into the appropriateness of the accommodation costs underlying the calculation of the accommodation costs in the concept developed by the company Analyse und Konzepte.
By decision dated May 28, 2021, the defendant rejected the appeal as unfounded. The defendant stated that the plaintiff was not entitled to consideration of higher housing costs. According to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), actual housing costs are covered in full, but only to the extent that they are reasonable. The defendant has set a monthly limit of €305.76 for a one-person household in Witzenhausen as the reasonable housing cost ceiling since May 2018. This limit is based on a concept developed by Analyse und Konzepte Beratungsgesellschaft für Wohnen, Immobilien, Stadtentwicklung mbH (Analysis and Concepts Consulting Company for Housing, Real Estate, and Urban Development) for determining the reasonableness of housing costs in the Werra-Meißner district. Since May 2020, the values from the 2020 update of the 2018 concept have been applied, with a base rent of €316.76 including utilities (excluding heating). The defendant has no doubts about the validity of the applied concept, as it is now based on four comparable areas within the district, which also comply with regional planning standards. Sufficient data is now available for each comparable area. The abstractly appropriate gross rent (excluding utilities) for a 50 m² apartment in the defendant's area during the period in dispute is €305.76 or €316.76 for comparable area 1, which includes Witzenhausen. The plaintiff's actual accommodation costs of €345 were therefore unreasonable. By letter dated January 14, 2020, the plaintiff was informed that the costs of the apartment could only be covered up to the amount of €380.26 (€305.76 for basic rent including utilities and €74.50 for heating costs) from the planned move-in date, and that there were concerns regarding the planned move and therefore it could not be approved. A personal meeting with the plaintiff had already taken place in September 2019 regarding this matter. Despite knowing that the rent exceeded the reasonable limit, he rented the apartment. The defendant also assumes that there are a sufficient number of apartments available in the local area at the abstractly reasonable gross rent that the plaintiff could have rented.
The lawsuit filed with the Kassel Social Court on June 9, 2021, under file number S 11 SO 45/21, is directed against this decision. The lawsuit seeks to have higher accommodation costs taken into account for the period from March 1, 2020, to October 31, 2020 (at least according to the housing benefit table plus a ten percent safety margin), arguing that the defendant's applied concept is inconsistent.
Following the plaintiff's move to [address redacted] in Witzenhausen (apartment 3, note), the defendant recalculated the plaintiff's basic income support benefits effective November 1, 2020, by notice dated October 28, 2020. He considered monthly housing costs of €316.76 and heating costs of €65 to be reasonable. He explained that the monthly basic rent and operating costs totaling €345 were not reasonable for a single-person household. The plaintiff was required to pay the monthly difference of €28.24 himself.
The plaintiff's legal representative objected to this decision on November 25, 2020, referring firstly to the provision of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII) and the pandemic-related benefits, and secondly to the fundamentally flawed assessments for determining the appropriateness of accommodation costs in the concept applied by the defendant.
By decision dated May 21, 2021, the defendant rejected the appeal as unfounded. He stated that the plaintiff was not entitled to consideration of higher housing costs. He referred to the limits of reasonableness in the concept he applied, developed by the company Analyse und Konzepte. According to this concept, and in accordance with the 2020 update of the 2018 concept, a monthly amount of €316.76 has been applicable for a single-person household in Witzenhausen since May 2020. The defendant continues to assume the validity of the applied concept. The reference to Section 141 of the German Social Code, Book XII (SGB XII) does not alter his assessment of the facts. This provision was designed for a comparatively short period due to the Covid-19 pandemic. While Section 141 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) stipulates that actual expenses for accommodation and heating would be considered reasonable for a period of six months, deviating from Sections 35 and 42a Paragraph 1 of the SGB XII, this only applies, according to Section 141 Paragraph 1 of the SGB XII, to benefit periods beginning between March 1, 2020, and December 31, 2021. In the present case, the benefit period, based on the original decision of January 15, 2020, extends from February 1, 2020, to January 31, 2021. Basic income support under Chapter Four of the SGB XII is generally granted for a benefit period of 12 months (Section 44 Paragraph 3 Sentence 1 of the SGB XII). Due to the commencement of the benefit period on 1 February 2020, Section 141 Paragraph 3 Sentence 1 of the German Social Code Book XII (SGB XII) does not apply.
The lawsuit filed on May 29, 2021 at the Kassel Social Court under file number S 11 SO 42/21 is directed against this.
By decision dated January 29, 2021, the defendant recalculated the basic income support for the period from February 1, 2021, to January 31, 2022, taking into account accommodation costs of €316.76 per month (for basic rent and utilities). Since the plaintiff had not received any workshop income to be considered since October 31, 2020, the defendant issued a corresponding corrected decision on February 4, 2021, taking into account the previously recognized housing costs.
By letter from his legal representative dated February 17, 2021, the plaintiff lodged an objection, referring to the pandemic-related provision of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), and again denied the plausibility of the concept applied by the defendant to determine the limits of reasonableness.
By decision dated May 25, 2021, the defendant rejected the appeal as unfounded. He explained that, with regard to the concept he had applied, he continued to consider it sound. Section 141 of the German Social Code, Book XII (SGB XII) did not change the accommodation costs previously considered by the defendant. Section 141, paragraph 3, sentence 1 of the SGB XII did not apply to ongoing benefit cases in which the costs of accommodation and/or heating had already been reduced to a reasonable level during the previous benefit period. According to the legislative history, this was also consistent because the concerns about retaining the housing in this case were not pandemic-related. In the present case, the benefit period, based on the original decision of January 29, 2021, extended from February 1, 2021, to January 31, 2022. In the case of basic income support under Chapter Four of the German Social Code, Book XII (SGB XII), benefits are generally granted for a period of 12 months in accordance with Section 44, Paragraph 3, Sentence 1 of the SGB XII. In the previous benefit period from February 1, 2020 to January 31, 2021 (notice dated January 15, 2020), the housing costs had already been reduced to a reasonable level since March 2020.
The lawsuit filed on May 29, 2021, under file number S 11 SO 43/21 with the Kassel Social Court is directed against this, also with the aim of taking higher accommodation costs into account.
By decision of 10 October 2022, the court consolidated the proceedings of the plaintiff S 11 SO 42/21, S 11 SO 43/21 and S 11 SO 45/21 under file number S 11 SO 45/21 for joint hearing and decision.
The plaintiff's legal representative continues to question the validity of the concept applied by the defendant to determine the limits of reasonable housing costs. Insofar as the Hessian State Social Court, in its judgment of November 23, 2022, in the appeal proceedings L 11 SO 129/20, confirmed the validity of the concept applied by the defendant in the version effective from May 2018, he points out that he has filed an appeal against the denial of leave to appeal. Regardless of the validity of the concept applied by the defendant to determine reasonable housing costs, the defendant should have considered the plaintiff's actual housing costs when calculating his basic income support during the period in dispute in all three proceedings, namely from March 1, 2020, to January 31, 2022, taking into account the pandemic-related provision of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII). The legal provision stipulates that actual rental costs must be taken into account for periods beginning on or after March 1, 2020. This applies to the plaintiff from March 1, 2020, since he began living in the apartment at [address redacted] in Witzenhausen (Apartment 2, note) . He had to move out of the apartment at [address redacted] (Apartment 1, note), for which the defendant had previously considered the actual rental costs, due to health reasons. Reference is made to a specialist medical certificate from the Werra-Meißner Clinic on page 664 of the defendant's file. Applying the transitional provision of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), the defendant must consider the plaintiff's actual rental costs when calculating basic income support benefits for the entire period in dispute. As of January 1, 2022, the defendant will be considering the actual rental costs anyway, so the legal proceedings are now moot in this respect.
The plaintiff requests
that the decision of October 28, 2020, as amended by the appeal decision of May
21, 2021, the decisions of January 29, 2021 and February 4, 2021, as amended by the appeal decision of May 25,
2021, and the decision of April 7, 2021, be amended in light of the decision of January 15, 2020, as
amended by the appeal decision of May 28, 2021, and that the defendant be ordered to grant him basic income support benefits from March 1, 2020, to December 31, 2021, in accordance with Chapter Four of Book Twelve of the Social Code, taking into account the actual accommodation costs.
The defendant requests
that the claims be dismissed.
The defendant argues that considering higher accommodation costs during the period in dispute based on the applied concept for determining the reasonable limit is not permissible. Regarding the soundness of the applied concept, the defendant refers to the judgment of the Hessian State Social Court of November 23, 2022, in case L 4 SO 129/20. In this decision, the Hessian State Social Court assessed the concept applied by the Werra-Meißner district, in the version dated May 18, 2018, as sound. The appeal against the denial of leave to appeal filed by the plaintiff's legal representative in the aforementioned appeal proceedings does not alter this. The opinion expressed by the presiding chamber in the oral hearing of January 12, 2023, regarding the consideration of the plaintiff's actual accommodation costs for the entire period in dispute based on Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), is not shared. From the defendant's perspective, it must be taken into account that the plaintiff moved into both the apartment in [address redacted] in Witzenhausen (Apartment 2, note) and the apartment in [address redacted] in Witzenhausen (Apartment 3, note) , even though the defendant had informed the plaintiff of the unreasonableness of the rent before the move, and the plaintiff nevertheless rented the apartments. Firstly, from the defendant's perspective, the factual prerequisites for the transitional provision in Section 141 of the German Social Code, Book XII (SGB XII), were not met as of March 1, 2020, and in any case, the general criteria for reasonableness would apply again after the six-month period. Furthermore, the defendant does not consider the legislative intent and purpose of the transitional provision to be fulfilled in the plaintiff's case. Despite the defendant's warnings about the unreasonably high rent, the plaintiff rented both the apartment in [address redacted] (Apartment 2, note) and later the apartment in [ address redacted] (Apartment 3, note), both in Witzenhausen. Precisely for this reason, the fiction of the appropriateness of actual expenses for rent costs, as regulated in Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), cannot benefit the plaintiff. Due to the adjustment of the limits of appropriateness in the applied concept, the defendant has been taking the plaintiff's actual rent costs into account since January 1, 2022. In this respect, his claim has been resolved.
For further details, including the submissions of the parties, reference is made to the court files S 11 SO 42/21, S 11 SO 43/21 and S 11 SO 45/21 as well as the administrative files of the defendant that were included in the proceedings, insofar as their content was the subject of the oral hearing.
REASONS FOR DECISION
The actions, filed in due form and time with the competent Social Court of Kassel and joined for joint decision by court order of October 10, 2022, are admissible and well-founded. Based on the relevant provision of Section 141 Paragraph 3 of the Twelfth Book of the German Social Code (SGB XII), the plaintiff is entitled to higher basic income support benefits under Chapter Four of the SGB XII, taking into account the actual accommodation costs, for the period in dispute from March 1, 2020, to December 31, 2021. The defendant's decisions of October 28, 2020, as amended by the objection decision of May 21, 2021, of January 29, 2021 and February 4, 2021, as amended by the objection decision of May 25, 2021, and of April 7, 2021, with regard to the decision of January 15, 2020, and as amended by the objection decision of May 28, 2021, which are the subject of the lawsuits, do not withstand judicial review, infringe the plaintiff's rights, and were therefore to be amended.
Notwithstanding the question of the validity of the concept applied by the defendant to assess the appropriateness of accommodation costs within its jurisdiction, the plaintiff is entitled, pursuant to Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), to have his actual rental costs for the apartments in [address redacted] (Apartment 2, note) and [ address redacted] (Apartment 3, note) in Witzenhausen taken into account from March 1, 2020, to December 31, 2021. This is because, in the opinion of the court, the factual prerequisites of Section 141 SGB XII, as amended on November 22, 2021, which was created as a transitional provision in response to the Covid-19 pandemic, are met in favor of the plaintiff during the period in dispute. This applies within the framework of Section 44 of the German Social Code, Book X (SGB X). Pursuant to Section 116a of the German Social Code, Book XII (SGB XII), also with regard to the legally binding decision of January 15, 2020, for which the plaintiff's legal representative submitted a review application in February 2021 concerning the eligible accommodation costs for the apartment in xxx (Apartment 2, note) in Witzenhausen occupied from March 1, 2020.
In this respect, Section 44 Paragraph 1 of the German Social Code, Book X (SGB X) stipulates that even an administrative act that has become unappealable must be revoked with retrospective effect if, in individual cases, it turns out 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 wrongly withheld or contributions were wrongly collected.
Both for the period from 1 March 2020 and for the period from 1 November 2020, the defendant failed to comply with the fiction of the appropriateness of the actual expenses for accommodation and heating, as stipulated by the legislator due to the pandemic, within the framework of the provision of Section 141 SGB XII.
According to Section 141 Paragraph 1 of the German Social Code, Book XII (SGB XII) (as amended on November 22, 2021), benefits, including those under Chapter Four of the SGB XII, are provided for benefit periods beginning between March 1, 2020, and March 31, 2022, in accordance with Paragraphs 2-4 of that provision. Contrary to the defendant's assertion, the transitional provision of Section 141 of the SGB XII is applicable to the period in dispute beginning on March 1, 2020. This is because, starting on March 1, 2020, the defendant was required to decide on the plaintiff's basic income support benefits, taking into account the rent payable by the plaintiff from March 1, 2020, for the apartment rented from March 1, 2020, at [address redacted] in Witzenhausen (Apartment 2, note) . The fact that the original benefit period began before March 1, 2020, is irrelevant, as is the fact that the review of the benefit amount was only (re)opened after the plaintiff moved into the apartment at [address redacted] in Witzenhausen (Apartment 2, note) on March 1, 2020, following a review application filed by the plaintiff's legal representative in February 2021. In this respect, the plaintiff benefits from the coincidental timing of moving into the apartment at [address redacted] (Apartment 2, note) on March 1, 2020, and the commencement of the pandemic-related transitional regulation on March 1, 2020. Contrary to the defendant's assertion, this does not contradict the purpose of the objective pursued by the legislature with the pandemic-related transitional regulation. To mitigate the effects of the pandemic, both recipients of benefits under state social security systems and the benefit providers themselves should be relieved of the burden of worrying about and verifying the appropriateness of housing costs. The fact that this relief takes effect from a specific date is a result of legislative discretion and does not, in this case, exempt the plaintiff from the transitional presumption of the appropriateness of his actual housing expenses. It is true that the rent payable by the plaintiff from March 1, 2020, for the apartment in xxx (Apartment 2, note) was outside the limits of what is considered appropriate under the defendant's policy, and the defendant had already informed the plaintiff of this before he moved into Apartment xxx (Apartment 2, note) . However, to mitigate the consequences of the pandemic, the legislature suspended the question of the appropriateness of housing rent with the provision of Section 141 of the German Social Code, Book XII (SGB XII). This also applies regardless of the appropriateness checks already carried out by the benefit provider before the start of the transitional arrangement from 1.3.2020.
Consequently, for the period in dispute in the present legal proceedings, beginning on March 1, 2020, the actual amount of the rent is decisive, based on the provisions of Section 141 Paragraph 3 of the German Social Code, Book XII (SGB XII), and deviating from Sections 35 and 42a Paragraph 1 of the SGB XII. Section 141 Paragraph 3 Sentence 3 of the SGB XII merely stipulates that Sentence 1, namely the presumption of reasonableness based on the actual rent, does not apply in cases where, in the preceding benefit period, reasonable expenses, rather than actual expenses, were recognized as a need. However, prior to moving to [address redacted] (Apartment 2, note) on March 1, 2020, the plaintiff resided in an apartment in [address redacted] in Witzenhausen (Apartment 1, note) , and the defendant took the actual accommodation costs into account when calculating benefits for this apartment. The plaintiff therefore benefits from the fact that he only moved into an apartment that the defendant considered unreasonably expensive when the transitional provision of Section 141 of the German Social Code, Book XII (SGB XII) came into effect.
According to Section 141 Paragraph 3 Sentence 1 of the German Social Code, Book III (SGB III), the actual expenses for accommodation and heating are only considered reasonable for a period of six months. Based on the wording of the provision, the deemed reasonableness would initially only apply to the plaintiff until August 2020. However, in light of Section 141 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII), the court is of the opinion that the deemed reasonableness extends from March 1, 2020, to December 31, 2021, to the plaintiff's benefit. This is because Section 141 Paragraph 3 Sentence 2 of the SGB XII stipulates that after the expiry of the period specified in Sentence 1 (i.e., the six-month period for the deemed reasonableness), Section 35 Paragraph 2 Sentence 2 applies, with the proviso that the period specified in Sentence 1 is not to be counted towards the period specified in Section 35 Paragraph 2 Sentence 2. According to Section 35 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), expenses exceeding the reasonableness of housing costs are to be recognized as a need of the benefit recipient, but according to Sentence 2 of the provision, this is limited to a maximum of six months. In the court's opinion, Section 141 Paragraph 3 Sentence 2 of the SGB XII, in conjunction with Section 35 Paragraph 2 Sentence 2 of the SGB XII, must be interpreted such that the six-month reasonableness presumption for housing costs applicable under Section 141 Paragraph 3 Sentence 1 of the SGB XII suspends the benefit recipient's obligation to reduce costs, which generally begins after six months of unreasonable rent under Section 35 Paragraph 2 Sentence 2 of the SGB XII following a cost-reduction request from the benefit provider, for as long as the pandemic-related transitional regulation is in effect, namely until March 31, 2022.
In the opinion of the adjudicating chamber, the plaintiff is therefore protected by the provisions of Section 141 of the German Social Code, Book XII (SGB XII), throughout the entire period in dispute, initially on the basis of the presumption of reasonableness and due to the suspension of the obligation and the requirement to reduce costs with regard to the accommodation costs to be considered by the defendant. Accordingly, the defendant's challenged decisions were to be amended, and the defendant was ordered to consider the actual rental costs in the basic income support payments to the plaintiff for the period from March 1, 2020, to December 31, 2021. From January 1, 2022, the defendant will consider the actual accommodation costs in any case.
The decision on costs is based on Section 193 of the Social Courts Act (SGG).
The following is information on legal remedies.
