Federal Social Court, 16.04.2013, Ref.: B 14 AS 28/12 R
The benefits to be provided within the scope of unemployment benefit II also include those for accommodation and heating, which are provided in the amount of the actual expenses, insofar as they are reasonable (§ 22 Para. 1 Sentence 1 SGB II).
The appropriateness of a flat is assessed using the so-called product theory. The product of the following factors is used to determine the suitability of the flat, for example:
Appropriate flat size x net square metre price (basic rent)
The costs for accommodation are therefore appropriate if they do not exceed the product of the appropriate flat size in square metres and the maximum appropriate rent per square metre.
If the expenses for accommodation and heating nevertheless exceed the reasonable amount, they are to be taken into account as a requirement for as long as it is not possible or not reasonable for the single person in need of assistance or the community of need to reduce the expenses by moving house, renting or in another way, but generally for a maximum of six months.
In the above-mentioned case, the Federal Social Court had to decide whether the defendant job centre had to pay the costs for accommodation and heating in excess of reasonable requirements.
Facts of the Case Plaintiff 1, born in 1982, and her son, plaintiff 2, born in 2002, for whom a degree of disability of 100 and the characteristics G, H, RF, Gl had been determined, lived in a 2.5 room flat with a living space of 60.99 m² in K during the disputed period.
The basic rent per month was 322 euros, plus advance payments for other ancillary costs of 22 euros, cold water of 53 euros, heating and hot water costs of 80 euros, which were increased to 61 euros for cold water and 92 euros for heating and hot water costs on 1 November 2008 (total monthly expenses of 477 and 497 euros respectively).
The defendant job centre informed the plaintiffs in its decision of 20 February 2006 that their costs were unreasonably high and that they were therefore only entitled to a total of 405 euros. From July to September 2006, the defendant made payments in accordance with this decision.
From July 2007 to the end of April 2008, another person (hereinafter referred to as G) also lived in the flat without forming a community of need with the claimants, and the benefit calculation was therefore based on the full expenses for accommodation and heating attributable to the claimants' shares.
For October 2008 to March 2009, the defendant granted the plaintiffs monthly benefits of EUR 405 for accommodation and heating. After the advance payment increase was notified on 1 November 2008, the defendant refused to accept the increased advance payment in a further decision.
After G moved back into the flat on 1 December 2008, the defendant again took into account the full expenses for accommodation and heating for the claimants on a pro rata basis from this date. For October and November 2008, however, the approved contributions were maintained. The defendant also used this calculation as a basis for the months of August and September 2009.
The defendant was initially ordered by the social court to pay further benefits for accommodation costs. Accordingly, only part of the heating costs were to be covered. The plaintiffs are pursuing their claim further before the Federal Social Court with their appeal on points of law.
Federal Social Court: The BSG followed the plaintiffs' view, at least in part, and ruled that the defendant should be ordered to pay further benefits for accommodation and heating.
The legal basis for the entitlement to higher benefits for accommodation and heating is § 19 para. 1 in conjunction with § 7 para. V. m. § 7 para. 1 sentence 1, para. 3, § 22 para. 1, § 28 SGB II.
The claimant 1 and the claimant 2, who could not cover his needs from his own income, had formed a community of need (§ 7 Para. 3 No. 1, 4 SGB II).
For October 2008, the defendant should be ordered to pay the plaintiffs further benefits in the amount of 17.50 euros for October 2008. This amount results from their actual expenses for accommodation and heating of EUR 477 less the EUR 405 granted by the defendant and the further EUR 44.37 awarded by the court as well as the costs of water heating of EUR 10.13.
The claimants' actual expenses for accommodation and heating in October 2008 were to be used as the basis for calculating their benefits because G had only moved out of the shared flat, which the claimants continued to live in, at the end of April 2008 - i.e. not six months earlier.
The provision of § 22 para. 1 sentence 3 SGB II, according to which unreasonable expenses for accommodation and heating are to be taken into account as a requirement for as long as it is not possible or unreasonable to reduce the expenses - as a rule, however, for a maximum of six months - also applies in the event of changes in the number of residents, such as a flatmate moving out. The regulation is intended to ensure that a person entitled to benefits is not forced to give up their previous home immediately, e.g. when they become in need of assistance.
However, the 6-month period is not a rigid period; rather, upward and downward deviations are permissible. This can be inferred from the wording of the provision. In the present case, however, reasons for a deviation were neither recognised ex officio nor asserted by a party.
For the reasons stated above, the defendant was obliged to pay the plaintiffs further benefits for accommodation and heating for August and September 2009 in the amount of EUR 7 per month in each case, as G had moved out again on 1 May 2009.
The amount of benefits for accommodation and heating according to § 22 Para. 1 Sentence 1 SGB II is based on the abstract reasonable need, which is determined according to the so-called product theory.
Accordingly, the appropriate flat size must first be determined. Then the relevant local area of comparison is to be determined and, taking into account the appropriate basic standard of housing, the net cold rent per square metre of living space to be paid for the appropriate flat size on the housing market in the relevant area of comparison is to be established.
The cold operating costs should be added to the net cold rent determined in this way. If no abstract appropriate requirement for accommodation can be determined, the actual expenses are to be assumed, capped in the sense of an upper limit of appropriateness for the period before 1 January 2009 by the table values in the right-hand column of Section 8 WoGG old version plus a safety margin of 10 %.
Accordingly, the abstract appropriate flat size for the claimants was 60 m². This was not to be increased either because of the single parenthood of claimant 1 or because of the disability of claimant 2. The abstract appropriate accommodation requirement of the claimants had been correctly determined at 379.50 euros in accordance with § 8 WoGG and a safety margin of 10 %.
However, in view of the plaintiff's age of six years in November 2008 and his severe disability as well as the single parenthood of the plaintiff 1, findings were necessary in this regard. There could be reasons against the concrete appropriateness of the lower, abstractly appropriate accommodation requirement and the reasonableness of cost-cutting measures that would also prevent a move, such as illness, disability, need for care, consideration for school-age children, single parenthood. Such reasons are given in the present case and must be examined more closely with regard to the specific appropriateness.
Source: Federal Social Court
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