VERDICT
In the legal dispute
1. xxx,
Plaintiff,
2. xxx,
Plaintiff,
3. xxx,
Plaintiff,
4. xxx,
Plaintiff,
5. xxx,
Plaintiff,
3-5 represented by
xxx,
xxx,
Legal representative for 1-5:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen,
against
Jobcenter Werra-Meißner,
represented by the managing director,
Fuldaer Straße 6, 37269 Eschwege,
Defendant,
The 9th Chamber of the Social Court of Kassel, in its oral hearing of June 20, 2023, rendered the following judgment through the presiding judge, Judge xxx, and the lay judges, xxx and Mr. xxx:
The defendant's decision of April 11, 2018, as amended by the decision on the objection of June 26, 2018, is hereby overturned, and the defendant is ordered to reimburse the plaintiffs for the expenses necessary for the appropriate pursuit of their legal rights in the preliminary proceedings against the decision of January 3, 2018, and to declare the involvement of the authorized representative in the preliminary proceedings against the decision of January 3, 2018, to be necessary.
The defendant shall bear the necessary extrajudicial costs of the plaintiffs.
FACTS
The plaintiffs are seeking reimbursement from the defendant for expenses deemed necessary in the objection proceedings, as well as a declaration that the involvement of their legal representative in the preliminary proceedings was necessary.
Plaintiff 1) is the mother of plaintiffs 2) to 5). After separating from her husband and father of plaintiffs 2) to 5), the plaintiff applied for a guarantee pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) for a number of apartments, including the xxx in Witzenhausen for €651 gross rent.
By decision dated 03 January 2018, the defendant rejected the assurance on the grounds that the rental costs were not reasonable.
By letter from their authorized representative dated January 11, 2018, the plaintiffs filed an objection. By letter dated March 8, 2018, the authorized representative then informed the defendant that the apartment had been let and requested a decision on costs.
By decision dated April 11, 2018, the defendant rejected a claim for reimbursement of costs. The contested administrative act had become moot. However, costs would only be reimbursed if an objection were successful.
By letter from their authorized representative dated April 13, 2018, the plaintiffs filed an objection. They argued that they would have been successful if the defendant had applied the correct limits of reasonableness and made a timely decision.
By decision dated June 26, 2018, the defendant rejected the appeal, stating that the expenses incurred could not be reimbursed. According to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), he was obligated to reimburse the costs if the appeal was successful. Due to the property being rented to another party, the plaintiff no longer required the assurance, and the rejection notice no longer had any adverse effect. Furthermore, the defendant argued that the conditions of Section 63 Paragraph 1 Sentence 1 of the SGB X in conjunction with Section 41 of the SGB X did not apply.
The lawsuit was filed with the Kassel Social Court on June 29, 2018. The father of the minor plaintiffs 3) to 5) approved the applications for legal aid by signing the declaration forms.
In its judgments of November 21, 2018 – L 6 AS 429/16 and L 6 AS 185/18 – the Hessian State Social Court ruled that, at least in May 2014, the defendant did not have a coherent concept for determining the limits of reasonableness pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). The defendant's appeal against the denial of leave to appeal to the Federal Social Court – B 14 AS 10/19 B – was unsuccessful.
In April 2019, the defendant adopted a revised report on his concept.
The plaintiffs maintain their position from the objection proceedings. They argue that the housing costs were reasonable for them as a family of five according to Section 12 of the Housing Benefit Act (WoGG) plus a 10% safety margin, amounting to €660.
The plaintiffs request
that the defendant, by setting aside the decision of 11 April 2018 as amended by the appeal decision of 26 June 2018, be ordered to reimburse the plaintiffs for the necessary expenses incurred in the appeal proceedings against the defendant's decision of 3 January 2018, and that the involvement of the authorized representative in the preliminary proceedings against the decision of 3 January 2018 be declared necessary.
The defendant requests
that the action be dismissed.
At the time of the court's decision, the defendant abandoned his defense of the concept he had initially presented in early 2018. He maintains, however, that the plaintiffs' success was not foreseeable at the time of the objection and that he therefore should not have to bear any costs. He also argues that the apartment exceeds the limits set forth in Section 12 of the Housing Benefit Act (WoGG) plus a 10% safety margin, since the occupancy should be based on only 3.5 people, not 5, due to the shared custody arrangement practiced by the family for childcare.
For further details and documents, in particular the further submissions of the parties, reference is made to the court files and the files of the defendant that were consulted.
REASONS FOR DECISION
The action is successful. It is admissible and well-founded. The legal basis for the reimbursement of preliminary proceedings costs is Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). According to this provision, the public body whose authority issued the contested administrative act must reimburse the person who filed an objection for the expenses necessary for the appropriate pursuit or defense of their legal rights, "insofar as the objection is successful." If the objection is resolved, this can trigger a claim for reimbursement. In connection with the basic decision on costs, the question of whether the objection would have been successful must be examined incidentally. If the objection would have been successful, a claim for reimbursement of costs exists (see Schütze, SGB X § 63 Rn. 24, beck-online).
This was the case here. The gross rent (excluding utilities) of apartment xxx in Witzenhausen, amounting to €651, was reasonable within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), and the requested assurance should not have been denied for this reason. Based on the findings of the Hessian State Social Court in its judgments of November 21, 2018, the relevant legal basis for determining the reasonable housing costs was not the defendant's proposed concept, but rather Section 12 of the Housing Benefit Act (WoGG), plus, if applicable, a 10% safety margin. In the case of the five plaintiffs, the needs of a five-person household were to be considered. If, as argued here, separated parents share custody of their children equally under a shared custody arrangement, the children have a housing need in the apartments of both parents that must be recognized under basic income support law. Section 22 of the SGB II serves to satisfy the basic need to have a dwelling as one's primary residence. If multiple residences are used, basic income support law recognizes a housing need only for the residence that constitutes the child's center of life, i.e., (only) for the residence that is predominantly used (see Federal Social Court [BSG] judgment of July 11, 2019 – B 14 AS 23/18 R, juris). However, if the family practices a shared custody arrangement, a child's center of life cannot actually be determined. Rather, the child has an equal housing need in the residences of both parents and must be considered an additional household member for basic income support purposes in each case (see, with detailed reasoning and references, BSG judgment of July 11, 2019, ibid.). For Witzenhausen with rent level 1, the relevant right-hand column of the housing benefit table was therefore €600 in 2018; with a safety margin of 10%, up to €660 could thus be considered appropriate.
A successful objection, according to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), has the consequence that the defendant must reimburse the plaintiff for the expenses necessary for the appropriate pursuit or defense of their legal rights. The costs of a lawyer in the preliminary proceedings are reimbursable if the involvement of a representative was necessary (Section 63 Paragraph 2 SGB X). This is the case here. The involvement of a representative is generally necessary because, only in exceptional cases will a citizen be able to adequately protect their rights against the administration (Knickrehm/Kreikebohm/Waltermann, Commentary on Social Law, Section 63 SGB X, marginal note 11 with further references). The defendant has not presented any indications of an exceptional case, nor are any otherwise apparent to the court.
The decision on costs for the legal proceedings is based on Section 193 of the Social Court Act (SGG) and follows the decision on the merits.
The following is information on legal remedies.
