In the legal dispute
1. xxx,
Plaintiff,
2. xxx,
Plaintiff,
Legal representative: for 1-2:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen,
against
Jobcenter City of Kassel,
represented by the managing director Jutta Kahler,
Lewinskistraße 4, 34127 Kassel,
Defendant,
The 4th Chamber of the Social Court of Kassel, without oral proceedings, rendered the following judgment on May 24, 2024, through the presiding judge, Judge xxx:
The defendant is ordered, with amendment to the decision of 29 October 2020, to grant the plaintiffs benefits for accommodation and heating costs for the period from 1 September to 31 October 2020 – taking into account benefits already provided – in the amount of the costs actually incurred.
The defendant shall reimburse the plaintiffs for their necessary extrajudicial costs.
The appeal is not admitted.
FACTS
The parties are in dispute in three separate legal proceedings regarding the amount of housing and heating costs (KdUH) for the period from May 1, 2020, to October 31, 2021.The present legal proceeding concerns the period from September 1 to October 31, 2020. Two further legal proceedings concern the period from May 1 to August 31, 2020, by way of a review procedure (S 4 AS 242/21), as well as the period from November 1, 2020, to October 31, 2021 (S 4 AS 243/21).
The plaintiff, born in 1975, lives with her adult son (plaintiff no. 2) at [address redacted] in 34127 Kassel. According to the rent certificate dated October 18, 2016, the plaintiffs have lived in this apartment since March 1, 2008. The apartment measures 80.34 m². The net rent since moving in was €349.47. The advance payments for operating costs amounted to €139 per month, at least in October 2016. The advance payment for heating costs (for heating the apartment with a gas central heating system) was €155 per month. This resulted in a total gross rent of €643.47 per month.
The plaintiffs have been receiving benefits under Book II of the German Social Code (SGB II) from the defendant for several years. The benefits file sent by the defendant begins, at the very least, with an application for continued benefits dated October 20, 2016. At that time, in addition to the two plaintiffs, another son of the female plaintiff (Amir) also lived in the apartment. From November 1, 2016, Amir was included in the household for benefit purposes.
By decision dated October 19, 2017, the defendant granted the household benefits under Book II of the German Social Code (SGB II) for the period from November 1, 2017 to October 31, 2018. In addition to the basic rent of €349.47, utility costs of €176.97 and heating costs of €95.01 (total rent of €621.45) were taken into account as housing costs.
By letter dated 28.9.2018, the landlord increased the basic rent to €419.36 net cold as of 1.11.2018; there were no changes to the operating and heating costs.
According to the defendant's calculations, the evaluation of the last utility bill for the year 2017 resulted in a monthly advance payment for operating costs of €205.04.
In a letter dated October 30, 2018, the defendant notified the plaintiffs regarding the appropriateness of their accommodation and heating costs. He pointed out that for three people, only a maximum living space of 75 m² and a basic rent including utilities of no more than €534 per month were considered appropriate. The maximum limits for heating costs depended on the amount of heating energy used, the size of the apartment, and the total living space of the building; the defendant referred to an attached table (page 92 of the file). Higher accommodation costs could be considered as a need for a maximum of six months pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), as long as it was not possible or reasonable for the plaintiffs to reduce the expenses to the appropriate limit by moving, subletting, or by other means. The plaintiffs did not comply with the defendant's request to state within 14 days whether they were generally willing to reduce their accommodation costs.
By decision dated October 30, 2018, as amended by the decision dated November 24, 2018, the defendant provisionally granted the plaintiffs benefits under Book II of the German Social Code (SGB II) for the period from November 1, 2018 to October 31, 2019. In doing so, he took into account the actual monthly basic rent (€419.37), the operating costs (€205.05), and the heating costs, which were limited to the reasonable amount of €90.
By amendment notice dated 1 April 2019, the defendant granted the plaintiffs only reduced housing and utilities allowances for the period from 1 May to 31 October 2019 (basic rent of €534 plus €90 heating costs per month).
On August 20, 2019, the son Amir moved out of the plaintiffs' apartment.
In a letter dated September 24, 2019, the defendant notified the plaintiffs regarding the amount of their housing and utilities allowance. He pointed out that for two people, only a maximum living space of 60 m² and a basic rent including operating costs (excluding utilities) of no more than €470 per month were considered reasonable. The maximum limit for heating costs depended on the amount of heating energy used, the size of the apartment, and the total living space of the building; the defendant referred to an attached table (page 117 of the file). Higher housing costs could be considered as a need for a maximum of six months pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), as long as it was not possible or reasonable for the plaintiffs to reduce the expenses to the reasonable limit by moving, subletting, or by other means. The plaintiffs did not comply with the defendant's request to indicate within 14 days whether they were generally willing to reduce their housing costs.
By a legally binding decision dated September 24, 2019 (as amended by the decision dated November 5, 2019), the defendant granted the plaintiffs benefits under Book II of the German Social Code (SGB II) for the period from November 1, 2019 to April 30, 2020. In doing so, he continued to assume a basic rent of €534 (as gross rent excluding utilities) plus €90 for heating costs.
Following the plaintiffs' application for continued benefits, the defendant, by decision dated April 17, 2020, granted only the monthly reasonable housing costs of €491.50 plus €62.26 for heating costs for the period from May 1 to October 31, 2020. During this benefit period, a provisional benefit was granted by decision dated August 11, 2020, for the period from September 1 to October 31, 2020, due to the crediting of the second plaintiff's income; simultaneously, by decision dated August 11, 2020, the decision of April 17, 2020, was revoked for the period from September 1, 2020.
On August 24, 2020, the defendant temporarily suspended the payment of benefits because the plaintiff no. 1 had taken up employment.
With the grant notice of August 31, 2020, which is the subject of this legal dispute, the defendant provisionally granted the plaintiffs benefits under Book II of the German Social Code (SGB II) for the period from September 1 to October 31, 2020. Housing and utilities (KdUH) were still only granted at a reduced, reasonable rate (€491.50 + €62.26 for heating costs). An amended notice of the same date, identical in terms of the benefit amount, was issued, but it included a justification; furthermore, the "provisional suspension of payments" of August 24, 2020, was lifted.
The plaintiffs objected to the reduced amount of the housing allowance, arguing that the table values of Section 12 of the Housing Allowance Act (WoGG) plus a safety margin of 10% should be applied to determine the limits of reasonableness.
By decision dated September 28, 2020, the defendant rejected the appeal: The housing and heating costs had been lawfully reduced to the reasonable limits. The plaintiffs had also been granted a transitional period of six months.
On September 22, 2020, the plaintiffs requested a review of the decision of April 17, 2020 (period from May 1 to August 31, 2020, final benefits) pursuant to Section 44 of the German Social Code, Book X (SGB X).
Also on September 22, 2020, the plaintiffs requested a review of the decision of September 24, 2019 (period from November 1, 2019 to April 30, 2020).
The plaintiffs filed the present action on October 11, 2020, against the decision on their objection dated September 28, 2020. In support of their claim, they argue that the concept used by Rödl & Partner to calculate their housing costs is flawed because 40% of the data was taken from so-called social data. Furthermore, they contend that the 14,245 data points from landlords in the comparison area, which were considered by the experts, were unlawfully not broken down (reference to the judgment of the Lower Saxony-Bremen State Social Court of April 2, 2019 – L 6 AS 467/17).
Subsequently, four further decisions were issued by the defendant:
By decision dated 29 October 2020, the defendant definitively set the granting of benefits for the period in dispute here, from 1 September to 31 October 2020; no changes were made in the area of housing and accommodation costs.
In a further decision – also dated October 29, 2020 – the defendant rejected the review application and stated that the decision of April 17, 2020 (period May 1 to August 31, 2020) remained unchanged. The defendant rejected the plaintiffs' subsequent objection with a decision on the objection dated June 1, 2021. The plaintiffs filed a lawsuit against this decision on June 9, 2021 (Case No. S 4 AS 242/21).
At the plaintiffs' request, the defendant granted them benefits under Book II of the German Social Code (SGB II) for the period from November 1, 2020, to October 31, 2021, by a third decision dated October 29, 2020. The reduced rates (basic rent €491.50, heating costs €62.26) continued to be applied for housing and heating costs. The defendant rejected the plaintiffs' objection to this decision by a formal notice of rejection dated June 1, 2021. The plaintiffs filed a lawsuit against this decision on June 9, 2021 (Case No. S 4 AS 243/21).
With a fourth decision dated October 29, 2020, the defendant definitively set the plaintiffs' benefits for the period from November 1, 2018, to October 31, 2019:
For December 2018 through April 2019, the determination corresponded to the provisional approval. For the period from May 2019 onward, accommodation costs of €534 and heating costs of €90 were granted. The plaintiffs filed an objection to this, which the defendant initially did not address. After an action for failure to act was filed on September 3, 2021 (S 4 AS 346/21), an amended decision was issued on February 17, 2022. This granted the plaintiffs higher benefits; the justification given was that the actual costs of accommodation and heating had now been taken into account. The following costs for housing and utilities were set: basic rent: €419.37, heating costs: €103.68, additional costs: €153.66. This lawsuit was subsequently withdrawn.
On April 9, 2021, the plaintiffs filed an action for failure to act (S 4 AS 156/21) and requested a decision on their review application of September 22, 2020 (period from November 1, 2019 to April 30, 2020). By decision dated February 17, 2022, they were subsequently granted higher benefits under Book II of the German Social Code (SGB II), and for the period from November 1, 2019 to April 30, 2020, housing and heating costs were granted in the actual amount incurred (basic rent: €419.37, heating costs: €123.80, additional costs: €144.54). The plaintiffs then withdrew this action.
In response to a court inquiry in these proceedings regarding the composition of the landlord data obtained in the Rödl & Partner concept, the defendant stated that, according to the company, ten housing companies in the city of Kassel had been contacted as part of the primary data collection. The response to the survey was limited to three housing companies, which accounted for 100% of the landlord data. The responses contained the following number of records: Erbbau-Genossenschaft Kassel eG: 227, GWG: 8365, GWH: 5653.
With regard to heating costs/operating costs, the defendant, by decision dated 2 March 2022, agreed to the plaintiffs' requested assumption of the additional payment for the year 2020 in the amount of €69.80.
A hearing scheduled for July 20, 2023, for all three pending cases before the 4th Chamber of the Social Court of Kassel – including cases S 4 AS 242/21 and S 4 AS 243/21 – could only take place as a preliminary hearing due to the absence of a lay judge. During this hearing, the relevant housing cost concept was discussed with the parties involved.
The plaintiffs request
that the defendant, by amending the decision of 31 August 2020 as modified by the appeal decision of 28 September 2020, both as amended by the decision of 29 October 2020, be ordered to grant the plaintiffs benefits for accommodation and heating costs for the period from 1 September to 31 October 2020, taking into account benefits already provided.
The defendant requests
that the action be dismissed.
He considers the amount of housing and utilities granted to be lawful. The concept underlying the housing and utilities assessment by Rödl & Partner is sound.
The court then pointed out to the parties that the decisions issued on 17 February 2022 (= concerning the periods of SGB II benefit receipt by the plaintiffs for the period before 1 May 2020) could have an effect on the subsequent periods in dispute here.
On March 20, 2024, the court heard the parties involved in the pending legal disputes by court order pursuant to Section 105 of the Social Court Act (SGG).
The two legal disputes S 4 AS 242/21 and S 4 AS 243/21 have also been decided by court order of today's date.
Regarding further details and the facts and legal arguments, reference is made to the court file – including those of proceedings S 4 AS 242/21, S 4 AS 243/2, S 4 AS 156/21 and S 4 AS 346/21 – as well as the administrative file of the defendant, an updated one from the further proceedings of the plaintiffs S 4 AS 278/22.
REASONS FOR DECISION
The court was able to decide by written order without an oral hearing pursuant to Section 105 Paragraph 1 Sentence 1 of the Social Court Act (SGG), after the parties had been heard accordingly, the case presented no particular difficulties of a factual or legal nature, and the facts were clarified as they are solely relevant to the decision. The written order thus has the effect of a judgment (Section 105 Paragraph 3 First Half-Sentence SGG).
The action is admissible as a combined action for annulment and performance pursuant to Section 54 Paragraphs 1 and 4 of the Social Court Act (SGG). The sole subject of the action is benefits for housing and utilities. Limiting the subject matter of the dispute to housing and utilities is permissible (established case law of the Federal Social Court, see, e.g., judgment of April 13, 2011 – B 14 AS 106/10 R – para. 11 with further references, juris); however, a further division of the accommodation costs, e.g., limiting it to heating costs, is inadmissible (Federal Social Court, judgment of July 2, 2009 – B 14 AS 36/08 R – para. 13, juris).
The only possible subject of dispute here is the decision of October 29, 2020, as this decision definitively regulates the granting of benefits under Book II of the German Social Code (SGB II) for the period from September 1 to October 31, 2020. With the issuance of this decision of October 29, 2020, which definitively established the benefit amount for this period, the decisions concerning the provisional granting of benefits pursuant to Section 39 Paragraph 2 of Book X of the German Social Code (SGB X) were simultaneously rendered moot "by other means." The decision of August 31, 2020, mentioned in the statement of claim, and the related appeal decision of September 28, 2020, are therefore no longer the subject of these proceedings, as they have already been resolved by other means. A separate ruling on these matters was thus unnecessary.
The action is well-founded. The decision of October 29, 2020, which now constitutes the sole subject of the dispute and is therefore only to be reviewed for its legality, is unlawful and infringes the plaintiffs' rights.
The plaintiffs are entitled to higher benefits for the period in dispute, from September 1st to October 31st, 2020. A higher benefit entitlement arises with regard to housing and heating costs. This corresponds to the plaintiffs' request, as they specifically challenged only the amount of the housing and heating costs and, in particular, objected to the housing and heating cost concept applied by the defendant. For the housing and heating costs, the maximum amount payable is limited to the actual costs incurred by the plaintiffs.
The amount of benefits for housing and heating costs is generally determined by Section 22 of the German Social Code, Book II (SGB II). According to paragraph 1 of this section, needs for accommodation and heating are recognized up to the amount of the actual expenses, provided these are reasonable. This means that the defendant must generally examine whether the respective amounts claimed by the individuals concerned for accommodation and heating are "reasonable.".
However, for benefit periods beginning between March 1, 2020, and March 31, 2022, special rules were established in the German Social Code, Book II (SGB II), due to the COVID-19 pandemic at that time. These rules are also applicable in the present case. According to Section 67, Paragraph 3, Sentence 1 of the SGB II, the aforementioned Section 22, Paragraph 1 of the SGB II applies during the aforementioned period with the proviso that the actual expenses for accommodation and heating are deemed "appropriate for a period of six months." This means that in such cases, a review of the appropriateness of the accommodation and heating costs not conducted. This special provision applies to all benefit periods beginning in the aforementioned period, i.e., both to "new" benefits granted to eligible persons who have not previously received benefits under Book II of the German Social Code (SGB II), and to persons – such as the plaintiffs – who have already been receiving benefits for a longer period and have submitted corresponding applications for continued benefits (see Federal Social Court [BSG], judgment of December 14, 2023 – B 4 AS 4/23 R – para. 24, juris; decision of the Hessian State Social Court of February 21, 2022 – L 6 AS 585/21 B ER – para. 62, juris; Groth in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 67, 1st revision, as of May 30, 2022, para. 28). In the case of the plaintiffs, this applies to all applications for continued benefits with a start date of 1 March 2020 and before 1 April 2022.
Contrary to the defendant's view, Section 67 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II) does not preclude the granting of the actual housing and heating costs in this case.
According to Section 67 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), Sentence 1 of the provision does not apply if, in the preceding benefit period, the reasonable expenses, rather than the actual expenses, were recognized as a need. However, this exception does not apply in the present case. In the period prior to September 2020, the defendant granted the plaintiffs the actual expenses for housing and utilities, and not merely lower, supposedly reasonable costs.
Although the defendant initially granted the plaintiffs only the monthly reasonable housing costs of €491.50 plus heating costs of €62.26 for the period from May 1st to October 31st, 2020, by decision dated April 17th, 2020, this decision became legally binding for the period from May 1st to August 31st, 2020. However, with regard to the months of September and October 2020, the defendant revoked this decision for these two months by decision dated August 11th, 2020, and the grant decision of August 31st, 2020, which is the subject of this legal action, was issued.
c) With regard to the legally binding decision of April 17, 2020 (concerning the period from May 1 to August 31, 2020), the plaintiffs initiated a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X). This procedure concluded with a decision dated October 29, 2020, as amended by the decision on the objection dated June 1, 2021, which rejected any amendment to the reviewed decision. The legal proceedings S 4 AS 242/21 were pending in this matter and were decided in favor of the plaintiffs by court order of today's date. The defendant was ordered to grant the plaintiffs housing and heating costs (KdUH) for the period from May 1 to August 31, 2020, in the amount of the costs actually incurred during this period. For further details of the reasoning, reference is made to this court order to avoid repetition.
This means that for the period in dispute here, September and October 2020, the defendant not permitted to grant reduced, "appropriate" housing and utilities allowances for the immediately preceding period, nor can it be considered as if he had granted reduced benefits; the exception in Section 67 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II) is therefore not applicable. In this context, it is particularly irrelevant that the correction of the benefit amount was only made subsequently by way of Section 44 of the German Social Code, Book X (SGB X), and thus was not lawful from the outset; because the corrected decision then takes effect retroactively within the limits of Section 44 Paragraph 4 (here modified by Section 40 Paragraph 1 Sentence 2 No. 2 SGB II).
Rather, the defendant, guided by the judgment in case S 4 AS 242/21, in which he was ordered to grant the plaintiffs the actual housing and utilities costs incurred for the period from May 1st to August 31st, 2020, must also provide these costs for the period in dispute here, from September 1st to October 31st, 2020.
Therefore, pursuant to Section 67 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), the plaintiffs are also entitled to the actual, unreduced housing and heating costs incurred for the months of September and October 2020.
The defendant's objection that the plaintiffs had already received payments in the amount of the actual heating costs incurred, based on the operating and heating cost statement for 2020, is irrelevant in this case. This is because, when reviewing housing and heating costs, it is not permissible to focus on a single element of the costs and assess it in isolation; rather, the housing and heating costs must always be considered in their entirety. In any event, the other operating costs incurred were significantly higher than the amounts the defendant paid the plaintiffs.
The claim was therefore to be granted.
The decision on costs is based on Section 193 of the Social Court Act (SGG)
The appeal is inadmissible because the required value in dispute of €750 is not exceeded (§ 144 para. 1 sentence 1 no. 1 SGG). No grounds for granting leave to appeal pursuant to § 144 para. 2 SGG are apparent.
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