Accommodation and heating costs

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The cost of accommodation and heating (also just the cost of accommodation, abbreviation KdU ) is a term from German welfare law, which is defined in Section 22 SGB ​​II ( unemployment benefit II ), Section 35 SGB ​​XII ( social assistance ) and Section 3 AsylbLG ( asylum seeker benefit ) is.

With the fourth law for modern services on the labor market (Hartz IV) , needy people who receive social assistance, unemployment benefit II or social allowance no longer receive housing benefit , but their housing needs are calculated and paid out together with the subsistence benefits.

history

Before 2005, social assistance recipients were entitled to housing benefit in the form of the special rent subsidy according to §§ 31–33 WoGG a. F. This was paid automatically without an application requirement, with the income being a flat rate for calculating the amount of the claim. The special rent subsidy was only excluded if it would have been higher than the right to social assistance, but in such a case the general housing benefit could still be claimed.

Additional accommodation costs could be based on § 12 BSHG i. V. m. Section 3 of the ordinance for the implementation of Section 22 of the Federal Social Welfare Act. Similar to today, only reasonable accommodation costs were covered. If the costs of the accommodation were inadequate, the beneficiaries could, as today, be asked to reduce the accommodation costs within a reasonable period of time. If the deadline expired, the services were completely discontinued ( all-or-nothing principle ).

Payment of the cost of accommodation

Accommodation costs are generally paid in cash. There is no entitlement to benefits in kind, such as a specific apartment.

The cost of accommodation is usually paid out to the beneficiary along with the standard requirement, who then has to pass them on to the landlord. At the request of the service recipient, the service provider must pay the cost of the accommodation directly to the landlord. According to Section 22 (7) SGB II, the costs of the accommodation are to be paid ex officio to the landlord:

  • if the rental contract is threatened with termination without notice due to improper use of the costs of the accommodation
  • if there is a threat of a power cut because the service recipient does not use the standard requirement as required
  • with alcohol or drug addiction or with manic-depressive illnesses
  • if the service recipient is indebted
  • with a sanction of 60 percent or higher ( Section 31a (3) SGB II)

The headboard principle is applied to the costs of accommodation, i.e. the costs of accommodation are divided according to the number of people living in the apartment. Accordingly , if people live in the apartment who do not belong to the benefit community and do not receive any benefits themselves, the costs of the accommodation for the benefit community are reduced by that person's share, as it is expected that their share will contribute to the costs of the accommodation . If the shares are determined on the basis of contractual obligations, the headboard principle does not apply, as does a sublease agreement . In addition, a deviation from the headboard principle can be justified in special cases, for example if a member of the benefit community has been fully sanctioned so that the proportionate cost of accommodation is no longer paid. Then the proportional costs of the accommodation are to be increased accordingly for the other members of the benefit community, since otherwise an illegal family liability would arise.

Allowable accommodation costs

According to Section 22 (1) SGB II, the actual costs of accommodation and heating are generally recognized, provided they are reasonable . The prerequisite for taking the costs into account is first of all that the beneficiary actually lives in the apartment. If there are any doubts, the basic security provider can arrange for a home visit. If the service recipient refuses to give the sales force access to the apartment, he has the burden of proof that he actually lives in the apartment.

Only the costs for private living space can be taken into account, not for business premises. The costs for a garage cannot be taken into account, unless the apartment cannot be rented without a garage and the costs are still reasonable overall. In certain cases, the costs for the storage of the furniture can be taken into account, for example in the case of an eviction if the beneficiary lives in an emergency shelter and therefore cannot use his furniture.

Accommodation within the meaning of the law is any facility that offers protection from the weather and guarantees a certain degree of privacy. This means that a caravan or a mobile home is also considered to be accommodation for which the costs of accommodation are to be borne, even if the use as accommodation is illegal according to road traffic regulations. In any case, a beneficiary has the right to assume the reasonable costs for an apartment; a reference by the service provider to a homeless shelter is not permitted.

Finally, the costs actually have to be incurred; the service recipient must be exposed to an effective and not permanently deferred rental claim. In principle, a mere courtesy rent or just a payment of the operating costs incurred is to be regarded as an effective claim. A rental agreement that is only concluded verbally is also an effective claim, since rental agreements do not need to be in writing. However, if the tenants get caught up in mutual contradictions, a sham deal can be assumed, so that the costs of the accommodation are not to be assumed. Rent arrears over several years without enforcement measures or at least eviction from the apartment can justify the acceptance of a sham deal.

In contrast to social welfare, disabled children who live with their parents generally do not receive any accommodation costs; the headboard principle does not apply here. In principle, sublease agreements between the parents and the child are also not recognized.

Costs of housing and heating are in power of unemployment benefits , social assistance , assistance for subsistence , basic security in old age and disability as well as the supplementary aid for subsistence according to § 27a of the Federal Pension Act (BVG) for a period of six months in the actual height reasonable need if the approval period begins from March 1 to June 30, 2020 (Sections 67 SGB II, 141 SGB XII, 88a BVG in the version of the social protection package of March 27, 2020).

Cold rent

According to the product theory laid down by the Federal Social Court, the appropriate amount of the rent excluding heating is calculated from the product of the appropriate apartment size and the appropriate square meter price. Accordingly, z. For example, the apartment can be larger if the price per square meter is lower and the apartment is still appropriate as a result. The appropriate size of the apartment is determined by the size of the living space for those entitled to live in social housing and is therefore different depending on the federal state. Surcharges for certain groups of people such as single parents and the disabled are not to be taken into account.

In the case of a temporary community of need, in which the children of the beneficiary temporarily stay in his apartment as part of the exercise of the right of access, the appropriate size of the apartment is determined by half of the living space requirement for additional people in the community of needs.

When determining the appropriate size of the apartment, only the size of the community of need is to be taken into account, other residents of the apartment are not to be included and recorded separately. Accordingly, for two people who live together in a pure flat-sharing community, twice the apartment size is appropriate for one person and not the apartment size for two people.

In order to determine the appropriate price per square meter, a so-called coherent concept must be in place.

Coherent concept

In order to determine the appropriate price per square meter, a so-called coherent concept must be in place. To do this, a spatial benchmark must first be available. This must be big enough to create a homogeneous living area due to the proximity and infrastructure. The spatial comparison scale must not be limited to particularly cheap parts of the city in order to counteract ghettos. The basis for determining the appropriate square meter price is a simple standard in the lower market segment; the apartment must meet simple and basic needs. The price per square meter must be differentiated according to different apartment sizes.

To determine the data, both rental apartments offered on the market and apartments already rented must be taken into account. Special housing conditions such as dormitories, hostels, holiday accommodation and assembly apartments are not to be taken into account, nor are accommodation conditions between relatives, for example, allowed to be included in the calculation. In addition, the data must be comparable, i.e. either the gross or net rent without heating must serve as the basis. With the former, the additional costs must be determined separately. The database must include at least ten percent of all rental apartments in the spatial comparison area. If the database consists predominantly of service recipients themselves, an average value cannot simply be calculated from this, as this would lead to a circular argument. In that case, the upper price limit must be chosen as a reasonable cost.

It is criticized that the offices often fall back on companies that advertise and create such “coherent concepts” in a questionable manner, such as the company Analyze & Concepts, Hamburg.

A rent index , both simple and qualified, can, under certain circumstances, form the basis for a coherent concept. However, the rent index must not be restricted to certain building classes. In addition, a simple calculation of the arithmetic mean from the data in the rent index is not a permissible method of determining the appropriate rent. The same applies if the rent index contains apartments without central heating or without a shower, because these are unreasonable even for an ALG II recipient. They may not be referred to such apartments, nor may they be included in the calculation of the reasonable rent.

If there is no consistent approach, in the alternative, to determine the appropriate costs, the housing allowances table , plus a premium of ten percent used. At times it was disputed whether this also applied after the 2009 housing benefit amendment and the associated increases in the table values, but the Federal Social Court has now decided that a surcharge should also be added to the new values. However, this does not release the basic security provider from the duty of official investigation and thus the duty to draw up a coherent concept. The basic security provider must explain why a coherent concept cannot be drawn up, for example due to a lack of data for the past, which is why no calculation is possible. Likewise, the basic security provider has to catch up on the necessary data collection in the context of his procedural obligation to cooperate in a court case according to § 103 SGG , whereby he can also use other sufficiently specific data sources such as research with local housing associations or data from the housing benefit authority. The court can impose the costs of its own investigations according to Section 192 (4) SGG on the basic security provider.

It must also be taken into account whether, according to the structure of the housing market at the specific place of residence, the beneficiary actually has the option of being able to rent an apartment that is abstractly classified as appropriate on the housing market. The burden of proof for this lies initially with the service recipient. He must prove that he has tried hard and with all aids and aids that can be reasonably reached to find a suitable apartment on the housing market. Placing on the waiting list of housing associations and applying for suitable apartments, if available, are considered reasonable. Simply submitting newspaper advertisements is not enough. If these prerequisites are met, the basic security provider must also assume unreasonably high costs, unless it can present a concrete, appropriate housing offer to the benefit recipient. If the conclusive concept is based on a qualified rent index and its average value has been applied or if the rent index makes statements about the frequency of apartments with a reasonable square meter price, it can usually be assumed that there are actually adequate apartments in sufficient numbers.

According to Section 22 (1) SGB II, costs for an unsuitable apartment are only recognized for as long as it is not possible or unreasonable for beneficiaries to reduce costs by moving, renting or in some other way, but usually for no longer than six months. This must be communicated to the beneficiary by means of a so-called cost reduction request. This must include an indication of the amount of the reasonable costs. A request to reduce costs is also necessary if the beneficiary did not receive any benefits in his old apartment and only became in need of help after moving to the inappropriate apartment; something else only applies if the beneficiary has intentionally moved into a luxury apartment in order to trigger a benefit obligation. The request to reduce costs is purely informative and informative and is not an administrative act against which legal remedies would be possible. After the deadline has expired, only reasonable costs are to be paid. However, a declaratory action against the cost reduction request is admissible if it explains the unreasonableness or impossibility of cost reduction, but not if the appropriateness limit itself is attacked.

Certain reasons can mean that the reduction in accommodation costs through a move is unreasonable, so that, in exceptional cases, unreasonable accommodation costs must also be covered. These include, for example, the concerns of underage children who would have to change schools if they moved, as well as looking after the children of single parents if they were lost due to moving. A move can also be unreasonable for disabled people and people in need of care and their family members who are caring for them if this would no longer ensure care and support. Moving is generally unreasonable for people of retirement age.

The beneficiary can lower the cost of the accommodation by subletting their own accommodation so that an in itself unsuitable apartment is considered appropriate. The rental income is not counted as income; only if the rental income exceeded the cost of the accommodation could it be credited as income.

Additional costs

In addition to the basic rent, the expenses for accommodation also include reasonable ancillary costs. The costs that may be passed on from the landlord to the tenant according to Section 556 of the German Civil Code in connection with the Operating Costs Ordinance are taken into account as ancillary costs . Accordingly, a cable connection is also one of the additional costs that can be taken into account if this is part of the rental agreement and cannot be canceled. For people in need of care, the costs for services in the context of assisted living can also be considered as additional costs that can be taken into account. Also usage fees for a (partly) furnished apartment can be considered if the apartment without furniture is rented.

According to Section 22 (3) SGB II, repayments from advance payment of additional costs in the following month have a need-reducing effect on the costs of the accommodation. The actual need is decisive and not just the need recognized as appropriate. Similar to the cold rent, the costs are to be divided according to the headboard principle, but only the conditions at the time of repayment play a role; changes in the size of the shared apartment during the period of need are not taken into account. Only actual repayments can trigger a reduction in needs; Taking into account a fictitious repayment based on the fact that the beneficiary has used the costs of the accommodation inappropriately is illegal. Has highest court ruled that when benefit recipients repayment due to § 394 not existing debt BGB offset may be, the repayment affect demand reducing in this case.

Conversely, in the case of additional claims, these must also be taken into account if the additional claim relates to periods during which the service recipient did not receive any benefits as long as the request for additional payment is received while the service is being received. Additional claims that relate to an apartment that is no longer occupied because the beneficiary has moved in the meantime can only be taken into account if the beneficiary was receiving benefits in the period to which the additional claim relates and because of a cost reduction request by the service provider or has moved based on an assurance given. If, on the other hand, the beneficiary was not in need of help during the period in question, the additional payment cannot be taken into account.

Since the electricity costs are already included in the standard requirement, they are not considered accommodation costs. In the case of utility billing, the electricity costs are therefore regularly deducted. In principle, the costs for operating the stove are also included in the standard requirement, but the apartment has a gas stove and if the gas consumption of the stove cannot be determined individually, no fictitious amount may be deducted. The same applies if an inclusive rent has been agreed and therefore no operating cost bill is drawn up so that the actual electricity consumption cannot be determined; In this case, too, no fictitious costs may be deducted.

Heating costs and water heating

Heating costs are to be assumed in the actual amount, for example as monthly installments or as one-off heating costs, provided they are not unreasonably high. If the heating medium is procured by the service purchaser himself, a stockpiling for the duration of the current approval period is generally appropriate, in addition, if further service purchases are expected. Since January 1, 2011, heating costs have also included the costs of hot water preparation if the hot water is provided centrally.

The additional demand for hot water production is part of the cost of the accommodation and is not to be paid from the control benefit, because it does not include a share for hot water production. Already the judgment of the State Social Court of Saxony v. March 29, 2007, L 3 AS 101/06 2007, it could be seen that the control power had never included a share for hot water preparation. This fact led to the introduction of an additional expense allowance for hot water preparation for the first time on 01/01/2011.

With "decentralized hot water preparation" the costs are recognized as additional requirements. The additional requirement for decentralized hot water generation is initially only a basic amount. This is based on the amount of the annual standard requirement . The actual costs (different requirements) are, however, significantly higher and must also be assumed. In SGB II, Section 21, Paragraph 7, it says: “In the case of beneficiaries, an additional requirement is recognized as long as hot water is generated by the devices installed in the accommodation (decentralized hot water generation) .... Unless there is a "different need" in individual cases or part of the appropriate hot water requirement is recognized in accordance with Section 22 (1). ”In SGB II, Section 22, Paragraph 1, it says:“ (1) Requirements for accommodation and heating are in the amount of "Actual expenses" recognized, insofar as these are reasonable. "

As the verdict of the State Social Court of Lower Saxony-Bremen v. May 22, 2019 - L 13 AS 207/18 ZVW, 700 kWh of electricity per person are appropriate for decentralized hot water generation using an electric instantaneous water heater . In the meantime there is another judgment of the Social Court Augsburg, judgment v. January 31, 2020 - S 11 AS 223/19 according to which 800 kWh of electricity is appropriate for one person annually. At a price of 0.30 euros per kWh of electricity, each adult is entitled to 240 euros a year for decentralized hot water production.

According to the judgment - L 10 AS 584/15 - of the State Social Court of Mecklenburg-Western Pomerania, v. 01/28/2020, the actual consumption for decentralized hot water generation must be taken into account. According to this, as early as 2014 900 kWh of electricity for one person were appropriate for an electric water heater, or in the judgment 1285.71 kWh of gas were recognized for a gas water heater. In the judgment it says: "In addition to the standard requirement, the plaintiff is entitled to an additional requirement for decentralized hot water generation according to Section 21 (7) sentence 2 SGB II in the amount of 17.44 € per month. The BSG has clarified According to the legislative conception, the actual consumption should take precedence over the flat-rate assessment rates in all cases (BSG, judgment of December 7, 2017 - B 14 AS 6/17 R -, BSGE 125, 22-29, SozR 4-4200 § 21 No. 28, Rn. 27) This means that recourse to the flat rates in § 21 Paragraph 7 Clause 2 No. 1 - 4 SGB II is usually not possible. "

Any coherent concept such as rent is not required when determining the appropriate heating costs, since the amount of heating costs in individual cases depends on too many factors. Estimating the appropriate heating costs in the dark is not permitted. In case of doubt, heating cost tables such as the nationwide heating cost table can be consulted. However, if the heating costs exceed the values ​​in the heating cost table, this does not automatically mean that the heating costs are inadequate. In this case, the beneficiary must explain why the heating costs were so high and why they are still reasonable in his case. The fact that an apartment is heated with a stove, but the heating cost table only includes apartments with central heating, does not matter here. It also does not matter whether the apartment is poorly insulated and therefore high heating costs, in this case too the heating costs are inadequate.

If the beneficiary does not have to pay any ongoing deductions for heating costs to the landlord or the energy supplier, but instead procures the fuel ( wood , coal , heating oil or liquid gas) himself directly if necessary, he is entitled to assume the costs of procuring the fuel (so-called fuel subsidy) in the actual amount, provided the costs are reasonable. The appropriateness also depends on the national or municipal heating level .

The recipient of the basic security can generally claim the actual heating costs up to the upper limit from the product of the value for extremely high heating costs with the appropriate living space (in square meters). In contrast to social assistance according to SGB XII, SGB II does not give the service provider any flat-rate options.

If the heating costs are inadequate in a specific case, the basic security provider, as in the case of an inadequate rent, must first send the service recipient a request to reduce costs. If it is not possible to reduce heating costs in any other way, the service recipient can also be obliged to move. A move solely because of inappropriately high heating costs is only reasonable if the total costs in the new apartment, including the rent, are lower.

Other accommodation costs

If the tenant has other obligations arising from the rental agreement, these may be considered. These include costs for cosmetic repairs in the home; these are not included in the standard requirement and therefore the reasonable costs must be assumed in any case. The costs for a move-out renovation can also be taken into account. A move-in renovation, on the other hand, can only be taken into account if it is customary for the location, because there is no significant number of renovated apartments on the local housing market and if it is necessary to produce an apartment in the lower market segment. Compensation for use that a co-owner of a self-used apartment has to pay to the other co-owners can also be taken into account .

If the basic security provider considers individual clauses of the rental contract to be ineffective, it may not simply reduce the benefits. Rather, he must make a cost reduction request to the service recipient and in this present the legal position of the authority in a way that enables the service recipient to take legal action against the landlord. Something else only applies if the ineffectiveness of the clauses was known or should have been known to the service recipient. If this leads to a legal dispute with the landlord, the procedural costs are to be reimbursed by the basic security provider.

Accommodation costs for home ownership

In the case of apartment ownership, the actual expenses up to the amount of the reasonable costs for a rental apartment must be taken into account. Expenses include all costs that can be deducted from income from renting and leasing in accordance with Section 7, Paragraph 2 of the Implementing Ordinance to Section 82 of the SGB ​​XII. The costs of operating the heating system must be considered separately as part of the heating costs. Repayment installments are only taken into account in exceptional cases, for example if the financing is about to be concluded and the beneficiary would otherwise lose their home.

When checking whether the costs of owner-occupied residential property are still reasonable, the costs incurred in the calendar year must be taken into account. Costs that are not incurred monthly but at longer intervals (such as property tax ) must be taken into account in full in the month in which they are incurred; there is no legal basis for dividing the cost of condominium accommodation evenly over twelve months.

According to Section 22 (2) SGB II, only irrefutable expenses for maintenance and repairs are covered. The expenses are only irrefutable if they would otherwise be dilapidated or uninhabitable and the work can no longer be postponed. Under no circumstances should these repairs lead to an improvement in living standards. These expenses actually have to be incurred; the creation of an investment reserve can not be taken into account, unless the owner is legally obliged to create reserves through a homeowners association .

Adequate living space

On the one hand, the state must guarantee a decent subsistence level, on the other hand it must not finance “any kind of accommodation” in the event of need and not reimburse the rental costs indefinitely. The amount of expenses for accommodation is largely determined by the living space.

There are no nationwide uniform criteria for living space. In addition to Section 22 of the Second Book of the Social Code, the secondary norms of the federal states provide orientation.

state Secondary norms
Bavaria Section 5.8 of the administrative regulations for the implementation of the law on tied housing (VVWoBindR)
Section 20.2 of the 2008 housing subsidy provisions (WFB 2008)
North Rhine-Westphalia Section 18 Law on the Promotion and Use of Housing for the State of North Rhine-Westphalia (WFNG NRW),
Section 8.2 of the Housing Use Regulations (WNB)

The following guide values ​​apply from January 1, 2018 (case study Wuppertal, North Rhine-Westphalia):

Household size Adequate
living space
1 person 1 room, up to 50 m²
2 persons 2 rooms, up to 65 m²
3 persons 3 rooms, up to 80 m²
4 people 4 rooms, up to 95 m²
every additional person + 1 room, + 15 m²

In one case, the Schleswig-Holstein State Social Court ruled in 2011 that those receiving basic security benefits under SGB II would also be “reasonable” with renting 25 m² small apartments.

In another case, the Federal Social Court ruled in 2012 that the regional provisions of the Housing Promotion Act (WNG) were relevant with regard to the appropriateness of the accommodation costs. When determining the abstract adequacy of the apartment size, a recipient of ALG II in NRW should assume 50 m² for one and another 15 m² for each additional person in the community of need. It thus confirmed its case law from 2009.

In 2010, the Dortmund Social Court awarded a father whose child came to visit a larger apartment. In 2014, the Kiel Social Court granted an unemployed father who exercised his rights of contact with his two children 55 days a year, a right to a larger apartment and thus higher benefits for accommodation. According to a decision by the Munich Administrative Court in 2017, children who do not stay exclusively, but regularly in their parents' household on weekends and during holidays, are to be taken into account when making a reservation for larger social housing under certain conditions.

Additional living space is to be granted for people with disabilities who are dependent on an additional room or additional space due to their disability or illness.

In contrast to the apartment sizes for rented apartments, separate appropriate sizes apply for owner-occupied residential property, which do not require an examination of appropriateness (Federal Social Court 2006). However, these are not fixed values; it depends on the individual case.

Number of
people living in the household		 Condominium Home
1-2 80 m² 90 m²
3 100 m² 110 m²
4th 120 m² 130 m²
for each additional person + 20 m² + 20 m²

The reasonable expenses for the accommodation are to be determined according to the so-called product theory, according to which both factors (apartment size, apartment standard - expressed by the price per square meter) do not have to be considered individually as long as the product of living space (number of square meters) and standard (rental price per square meter) results in an overall reasonable apartment rent (reference rent). This allows the overall adequacy limit to be determined.

In Wuppertal, North Rhine-Westphalia, for example, the maximum amount for a reasonable gross rent is calculated as the product of the individual apartment size to be claimed and the average amount according to the rent price index for the city of Wuppertal and the current operating cost index in North Rhine-Westphalia.

Cost regulation by statute

Until April 1, 2011, Section 27 SGB II a. F. an authorization to issue ordinances that would have enabled the legislature to determine the reasonable costs of accommodation across the country. Mainly for reasons of practicability, the legislature never made use of this and the authorization to issue ordinances no longer applies with the amendment to the law. Instead, through Sections 22a to 22c of the Second Book of the Social Code , the legislature created the possibility of determining the locally appropriate costs by statutes (or ordinance in the case of city states) in the legal system of SGB II and to set a flat rate for the appropriate costs. If the interests of disabled and elderly people are also taken into account in these statutes, it also applies to the legal system SGB XII. With this, the legislature hoped for greater legal certainty and relief for the social courts. In practice, these hopes were not confirmed, only very few federal states and municipalities made use of the possibility of regulating the accommodation costs by statute, the possibility of the flat-rate consideration of the accommodation costs was never used.

The Federal Social Court decided that such a statute or ordinance must meet the same requirements with regard to a coherent concept as a “normal” determination of the appropriateness limit. In the specific case relating to the Berlin Housing Expenditure Ordinance (WAV), the court first ruled that it did not apply to SGB XII, as it only provides for a surcharge of up to 10 percent on the reasonable rent for elderly people, which is what concerns them Do not take sufficient account of group of people. On June 5, 2014, the court finally declared the entire WAV to be unlawful and ineffective, as the reasonable heating costs determined are not based on local determinations, which is absolutely necessary in the case of a statute / ordinance (unlike a normal determination of reasonable costs) , but only the values ​​from the nationwide heating cost index were taken over. The entire calculation is not conclusive.

In order to directly contest a statute, the legislature introduced the instrument of norm control, for which the regional social courts are responsible in the first instance. ( § 55a SGG) In the only norm control procedure carried out to date, the Schleswig-Holstein State Social Court declared the statutes of the independent city of Neumünster to be unlawful because the appropriate living space was reduced for no objective reason compared to the regulations in social housing.

Change of residence

According to Art. 11 GG, a change of residence is possible and permitted without the prior consent of the office. A prior "assurance for the provision of the service" gives the security that the assumption of the (higher) costs by the service provider cannot be refused in the future on the grounds that the need for help is self-inflicted without a justification.

The assurance should be given prior to the conclusion of the rental agreement. The basic insurance carrier is obliged to guarantee if the cost of new housing are reasonable and the move is (required to § 22 para. 4 SGB II). A necessary move within the meaning of the law is given in particular if:

  • the basic security provider has asked to reduce the cost of accommodation
  • work has been started that is outside the reasonable pendulum range
  • there are structural defects in the apartment such as mold
  • the apartment is too cramped for the community of need
  • an over-25-year-old wants to move out of his parents' apartment for the first time
  • Health or personal reasons make it necessary to move, for example when a married couple separates or the need to care for a close relative
  • the service recipient is living under the sublet and the main tenant cancels the apartment
  • the eviction is imminent

The granting of the assurance generally requires a concrete offer of accommodation, which can be used to determine the appropriateness of the new accommodation. An assurance cannot be given in the dark. Another prerequisite for an assurance is an actual move; there is no entitlement to an assurance for the currently occupied accommodation.

If the cost of the accommodation increases due to an unnecessary change of residence, the costs of the accommodation will only be covered in the amount of the previous costs for the old accommodation ( Section 22 Paragraph 1 Sentence 2 SGB II). This presupposes that the service recipient only moves within the spatial comparison area; If he moves further away, for example into the area of ​​responsibility of another basic social security provider, the regulation does not apply. A coherent concept of the basic security provider must also be available; if this is not the case, the cost of accommodation cannot be limited to the previous costs. The cost limit is not static, but must be dynamically adjusted in accordance with the development of the adequacy limit. If the need for assistance ceases to exist for a short time after the move, for example due to temporary employment, the restriction to the previous costs of accommodation is also no longer applicable. There is no legal basis for the limitation to the previous costs of accommodation if the beneficiary did not receive any benefits in his old apartment and only became in need of help after moving.

Housing procurement costs and moving costs are only recognized if the service provider has given an assurance ( Section 22 (6) SGB II). The law mentions two cases in which the costs should be recognized, in these cases the discretion is regularly reduced to zero: on the one hand, if the move was initiated by the basic social security provider, on the other hand, if the move is necessary for other reasons and accommodation cannot be found within a reasonable period of time without the assurance. Other reasons within the meaning of the law can on the one hand be an integration measure, on the other hand a termination or eviction by the landlord. If the beneficiary moves unauthorized because the basic security provider has unlawfully refused the assurance, he can request reimbursement of the costs he has incurred. Moving costs can also be claimed if the beneficiary can no longer live alone in an apartment due to illness and has to be housed in a nursing home .

A move must be carried out by yourself with the help of family members and friends. As a rule, only the cost of renting a moving van and moving boxes, the disposal of bulky waste and a tip for the helpers are recognized as moving costs. Only if the move cannot be carried out by yourself, for example due to age, disability, physical constitution or caring for small children, can the costs for a commercial moving company be recognized.

The moving costs also include the basic fee for setting up a new telephone connection at the new place of residence and the costs for a forwarding order from Deutsche Post.

Rental deposit

The assumption of the cost of a rental deposit has long been controversial. Until 2011 there was no legal basis for granting rental deposits only as a loan, the repayment installments of which are deducted from the standard rate, so that a necessary rental deposit had to be provided as a subsidy. In 2011, however, the new version of Section 22 of the Second Book of the Social Code and the introduction of Section 42a of the Second Book of the Social Code made it clear that a rental deposit should be provided as a loan, which is repaid in monthly installments of 10 percent of the standard rate. However, this is controversial as the standard rate does not provide for an amount for loan repayment; The withholding of the repayment installments means that benefit recipients cannot save any amounts for necessary expenses and are then in turn dependent on loans, which then extend the duration of the repayment. In a court case by the Federal Social Court that ended due to the death of the plaintiff, the court raised doubts in its decision on costs as to whether rental deposits from the standard requirement should be repaid.

Takeover of rental debts

Rent debts can be taken over according to § 22 Abs. 8 SGB II or § 36 SGB ​​XII, if this is necessary to secure the accommodation. The decision is at the discretion of the authority. Rent debts should be assumed if homelessness would otherwise occur and the rental relationship can be continued or a new rental relationship can be established with the landlord once the rental debts have been settled. In such a case, the discretion is regularly reduced to zero. Rent debts are to be reimbursed as loans; Granting a subsidy is possible if the rental debts were not caused by the behavior of the beneficiary, but by illegal behavior of the basic security provider.

In principle, every member of the community of needs can apply for the full amount of rental debts; the headboard principle does not apply here. The rental debts are to be assumed in full. The rental debts are also to be assumed if uneconomical behavior or misconduct on the part of the service recipient led to the creation of the rental debts. Only in an "atypical exceptional case" can the assumption of the rental debt be refused. However, such a case is generally only to be assumed if the recipient of the service caused the rental debt intentionally or through gross negligence in order to trigger a payment obligation on the part of the authority.

The assumption of the rental debt assumes that the apartment itself is appropriate. The assumption of rent debts is also out of the question if the authority offers the beneficiary a specific replacement apartment. A general reference to the fact that the housing market is relaxed is not permitted, as is the reference to a homeless shelter as a replacement home. If the beneficiary takes out a private loan to settle the rental debt, this is also refundable.

Due to an explicit exception in Section 21, Sentence 2, SGB XII, the assumption of rental debts according to SGB XII is also possible for those people who are able to work but do not need help within the meaning of SGB II if they are threatened with homelessness.

Appeal

In disputes about the cost of accommodation, legal recourse to the social courts is given.

An interim order comes at the cost of accommodation only be considered if homelessness or a similar plight threatens. The courts assess differently when there is a risk of homelessness. Some courts consider the threat of termination without notice to be sufficient, while other courts consider it reasonable to wait until the eviction. This is viewed as problematic by the literature, as this means that the beneficiary only has a very narrow time frame in which to apply for provisional legal protection before the apartment is finally lost, and this knowledge cannot be expected from a legally unfamiliar citizen. On August 1, 2017, the Federal Constitutional Court ruled that the social courts may not refuse to pay the costs of accommodation under temporary legal protection on the general grounds that urgency only exists if the eviction action is pending.

An exception only applies if the earning capacity of the beneficiary is doubtful and benefits under SGB II are only provided on the basis of Section 44a SGB ​​II, since the principle applies here that disputes over jurisdiction may not be carried out on the back of the beneficiary.

criticism

Limiting the cost of accommodation to reasonable costs, which are determined by the basic security providers themselves, is considered problematic. Some courts see the use of an indefinite legal term for an elementary part of the subsistence level as unconstitutional. In this regard, the Mainz Social Court had submitted two proceedings to the Federal Constitutional Court in order to clarify the constitutionality of the regulations on the cost of accommodation; the Federal Constitutional Court rejected the two preliminary proceedings as inadmissible due to deficiencies in content. In individual cases, courts decided in favor of a constitutional interpretation of the accommodation costs, in which the basic social security providers should not decide on the appropriateness as before, for example by referring to the housing benefit table in principle in all cases.

But the case law of the Federal Social Court on the conclusive concept is also under criticism. With each decision, the court set additional criteria, so that today it is almost impossible to draw up a legally sound and conclusive concept. Only a few basic security providers have succeeded in drawing up such a coherent concept that was valid before the Federal Social Court.

Since the refugee crisis in particular, it has also been criticized that although the basic security providers calculate the appropriateness of the cost of accommodation, due to the lack of a legal basis they cannot check whether the apartment is actually in a habitable condition. Due to their difficult situation on the housing market, the tenants themselves are usually not in a position to take action against the landlord themselves in such cases, because otherwise they would have to fear termination and, in the worst case, risk of homelessness. In addition, due to the current product theory, even extremely small apartments, sometimes even individual rooms, can only be rented for shared use at prices per square meter that are well above average.

Fiscal consequences for the municipal sponsors

The costs of accommodation within the framework of SGB ​​II are generally borne by the municipalities (districts and urban districts). The federal government supports this task with a share of expenditure that fluctuates over the years. In the broad catalog of communal social expenses , the cost of accommodation is the only task that is clearly related to the local social situation and has the same communal funding structure in all countries. The expenses are relatively stable over the years. In 2014 they totaled 11.6 billion euros nationwide. The communal expenditure mainly reflects the different SGB II shares in the population. The local rent level and the local discretion of the authorities play a relatively minor role. As a result, this social benefit automatically puts a much greater burden on economically weak municipalities than economically strong ones. The differences in expenditure between the 398 districts and independent cities are enormous: In the Bavarian district of Eichstätt they are the lowest at 16 euros per inhabitant. They are highest in the city of Offenbach with 388 euros per inhabitant. These disparities persist and deprive municipalities of funds for other tasks, especially investments .

literature

  • Uwe Berlit: Current developments in case law on the cost of accommodation (part 1) . In: info also . No. 6 , 2014, ISSN  1862-0469 , p. 243-257 .
  • Uwe Klerks: Provisional judicial protection in the event of disputes about accommodation costs . In: info also . No. 5 , 2014, ISSN  1862-0469 , p. 195-198 .
  • Eckart Grossmann: Social welfare - SGB XII: SGB I, II, IX, X, AsylbLG. W. Kohlhammer Verlag 2009, ISBN 3-170-20853-5 .

Web links

Individual evidence

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  2. ↑ BVerwG, June 27, 2002, Az. 5 C 65.01.
  3. ↑ Piepenstock in jurisPK-SGB II, 3rd edition 2012, § 22 Rn. 36.
  4. ↑ Federal Social Court, judgment of November 23, 2006, Az.B 11b AS 1/06 R. Bavarian State Social Court , accessed on June 20, 2019 . Marg. 14 and 28.
  5. ^ Federal Social Court, judgment of November 29, 2012, Az. B 14 AS 36/12 R. Bavarian State Social Court , accessed on June 20, 2019 . Marg. 28.
  6. ↑ Federal Social Court, judgment of November 29, 2012, Az. B 14 AS 161/11 R. Bavarian State Social Court , accessed on June 20, 2019 . Marg. 16.
  7. ↑ Federal Social Court, judgment of May 23, 2013, Az. B 4 AS 67/12 R. Bayerisches Landessozialgericht , accessed on June 20, 2019 . Marg. 22nd
  8. ↑ Landessozialgericht Rheinland-Pfalz , judgment of July 2, 2014, Az. L 3 AS 315/14 B ER. Bavarian State Social Court , accessed on June 20, 2019 . .
  9. ↑ Federal Social Court , judgment of November 23, 2006, Az. B 11b AS 3/05 R. Bavarian State Social Court , accessed on June 20, 2019 . Marg. 15th
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  62. ↑ Unemployment benefit II - additional requirement for decentralized hot water generation - gas flow heater - impossibility of recording consumption or determining the share of hot water and cooking gas - assumption of the actual costs minus the standard requirement share for cooking energy - appropriateness check using the current level. In: Mecklenburg-Western Pomerania service portal. Service portal Mecklenburg-Vorpommern, accessed on July 15, 2020 .
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  67. ↑ Federal Social Court, judgment of June 12, 2013, Az. B 14 AS 60/12 R, Rn. 27.
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  72. ↑ Federal Social Court, judgment of December 16, 2008, Az. B 4 AS 49/07 R.
  73. ↑ Federal Social Court, judgment of August 19, 2015, Az. B 14 AS 13/14 R.
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  75. ^ Federal Social Court, judgment of November 24, 2011, Az. B 14 AS 15/11 R.
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  77. ↑ a b Federal Social Court, judgment of August 22, 2012, Az. B 14 AS 1/12 R.
  78. ↑ Federal Social Court, judgment of November 29, 2012, Az. B 14 AS 36/12 R.
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  81. ↑ Administrative regulations for the implementation of the law on tying up residential property, Bavaria
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  90. ↑ Exemption from offsetting of property see Section 13 Paragraph 3 No. 4 SGB II.
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  92. ↑ Federal Social Court, judgment of February 19, 2009, Az. B 4 AS 30/08 R at openJur e. V. or at Sozialgerichtsbarkeit.de.
  93. ↑ Federal Social Court, judgment of May 16, 2012, Az. B 4 AS 154/11 R at openJur e. V. or at Sozialgerichtsbarkeit.de.
  94. ↑ Harald Thomé: Working aid for determining the reasonable expenses for accommodation within the framework of municipal statutes (PDF; 1.0 MB)
  95. ↑ § 35a SGB ​​XII.
  96. ↑ German Bundesrat, printed matter 661/10.
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  98. ↑ Federal Social Court, judgment of October 17, 2013, Az. B 14 AS 70/12 R.
  99. ↑ Federal Social Court, judgment of June 4, 2014, Az. B 14 AS 53/13 R.
  100. ↑ Landessozialgericht Schleswig-Holstein, May 30, 2016, Az. L 11 AS 39/14 NK.
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  124. ^ SG Lüneburg, April 20, 2015, Az. S 17 AS 1452/09.
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  126. ↑ Bayerischer Rundfunk: Housing shortage exploited: Landlords pull refugees over the table. ( Memento from January 6, 2018 in the Internet Archive )
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