Federal Social Welfare Act
|Title:||Federal Social Welfare Act|
|Scope:||Federal Republic of Germany|
|Legal matter:||Social law|
|References :||2170-1 a. F.|
|Original version from:||June 30, 1961
( BGBl. I p. 815 , ber.p. 1875 )
|Entry into force on:||June 1, 1962|
|New announcement from:||March 23, 1994
( BGBl. I p. 646 , ber.p. 2975 )
|Last change by:||
Art. 25 G of December 23, 2003
( Federal Law Gazette I p. 2848, 2895 )
|Effective date of the
|January 1, 2004
(Art. 124 G of December 23, 2003)
|Expiry:||predominantly January 1, 2005
(Art. 68 G of December 27, 2003,
Federal Law Gazette I p. 3002, 3070 )
|Please note the note on the applicable legal version.|
The Federal Social Welfare Act came into force on June 1, 1962 and replaced the 1924 Reich Principles on Requirements, Type and Measure of Public Welfare (RGr) and the Ordinance on Duty of Care (RFV) . The law was prepared in the Federal Ministry of the Interior by Gerhard Scheffler , a lawyer who used to belong to the NSDAP and head of the social department .
Since 1976, the Federal Social Welfare Act has been part of the Social Code (SGB). Since then, the general regulations of the SGB (especially SGB I and SGB X ) have also been applied to social assistance.
As of January 1, 2005, the provisions of the BSHG have been replaced by the provisions in Book Twelve of the Social Code (SGB XII).
When the Federal Social Law was introduced, the legislature hoped that, due to the economic miracle , fewer and fewer people would be dependent on state welfare benefits, and if so, then only temporarily. This should also apply initially, expenditure on social assistance benefits rose only slightly in absolute terms and even fell relatively, so that benefits were gradually expanded and maintenance obligations relaxed.
However, that was to change with the emergence of the phenomenon of mass unemployment at the end of the 1970s. Previously, the focus was on personal help, but more and more people were dependent on services to secure their livelihood, which, contrary to the legal concept, developed into a permanent condition. In addition, due to the increase in the number of disabled people in Germany since the mass extermination of disabled people under National Socialism, the costs, especially for the home accommodation of this group of people, rose massively, so that the legislature was forced to counteract the increase in costs through changes in the law. Savings in the priority social security systems put an additional burden on the social assistance agencies.
The greatest savings concerned the standard rate , which was increased further in absolute terms, but the increases regularly lagged behind the general price trend. In addition, there was a change from the basket model to the statistical model and the introduction of the wage gap rule , according to which social assistance may not be higher than the average wage of a single-earner family with three children. In order to create incentives for self-help, the obligations to make efforts and to take up reasonable work have been expanded. The possibility of funding training from social assistance funds ( training assistance ) was dropped without replacement in favor of priority benefits (BAB / Bafög). Additional requirements were either deleted or the requirements tightened.
In the area of personal help, the needy person's right to wish and choose was initially restricted to the effect that outpatient help always takes precedence over inpatient help and inpatient help can only be provided if outpatient help does not meet the needs of the needy. This was adjusted in 1996 so that outpatient help was excluded if it would involve disproportionate additional costs compared to inpatient help. Due to a transitional regulation that is still in force today, people who received outpatient assistance without a proportionality test in 1996 continue to have an unrestricted right to this assistance. (SGB XII)
A further saving was made through the introduction of service agreements between the social assistance providers and the service providers, in particular the operators of fully inpatient homes, as well as the restriction of the needy’s right to wish and choose to service providers with such a service agreement. This strengthened the possibility for social welfare providers to specify the level of benefits unilaterally and thus trigger cost pressure on the part of the home operator, resulting in competition, since home operators without such a service agreement actually had no more chance on the market.
Individual help (Section 3), the ability of those in need to help themselves (Section 1, Paragraph 2) and the principle of subordination of social assistance (Section 2) were defined as the principles of social assistance in the Federal Social Assistance Act.
An important principle was the subordination of social assistance: Own assets had to be used primarily for subsistence, claims against other social benefit providers, maintenance claims etc. had to be asserted, reasonable work had to be accepted.
Demand coverage principle
According to the case law of the Federal Administrative Court, the principle of covering needs was also known under the sentence “no social assistance for the past”. According to jurisprudence, social assistance was regarded as a service intended to remedy a current plight of the needy. If the needy has eliminated the emergency situation in the past, in the same way as, he had no right to a retroactive grant of social assistance for the past or the assumption of any debts that may arise due to the non-granting of social assistance.
The Federal Administrative Court made an exception if the social welfare institution refused the requested benefit or, after a reasonable processing time, did not make a decision at all on the application and the needy procured this benefit himself by means of self-help. There was an exception when a third party performed in the expectation that the social welfare provider would cover his expenses (e.g. by admitting the needy to a nursing home), in this case also after the death of the needy.
Approval of social assistance
According to the case law of the Federal Administrative Court, the granting of social assistance did not, in principle, constitute an administrative act with permanent effect that the needy could invoke; social assistance was "not a permanent benefit equivalent to a pension and, as it were, in need of new regulation every day". The prerequisites for the granting of social assistance had to be present on each day the benefit was granted; if this was not the case, the law lapsed the entitlement without the need for an express notice of annulment by the social welfare agency. As a result, there was also no suspensive effect of objections and lawsuits against the refusal of current benefits for social assistance.
In the Federal Social Welfare Act, a distinction was made between assistance with subsistence (ongoing assistance and one-off assistance in the event of economic emergencies) and assistance in special situations (primarily assistance with care and integration assistance for disabled people). The biggest difference was in the different income and assets offsetting, for example, quite generous allowances were granted on the income for assistance in special life situations. If help was given in the form of inpatient accommodation in special situations, the benefits covered the entire need, including subsistence and one-off benefits. (Section 27 Paragraph 3 BSHG)
Help with living
The support for livelihood should primarily cover the necessary livelihood. According to § 12 BSHG, the necessary livelihood includes food, accommodation, clothing, personal hygiene, household effects, heating and personal needs of daily life, especially cultural participation.
The necessary livelihood was granted in the form of standard rates that covered the current living needs. All needs that did not represent an ongoing need were granted as a one-off service, such as clothing and shoes, household items, repairs to the apartment, procurement of fuel, school supplies and services for special occasions (e.g. Christmas allowance ). Accommodation costs were primarily covered by the housing benefit , although no separate application was necessary since 1991, but housing benefit was granted together with the support for living expenses. In individual cases, the social welfare agency was also able to cover costs that exceeded the housing benefit. If the apartment was unreasonably expensive, the beneficiary had six months to rent a suitable apartment, otherwise all services were completely discontinued.
In the case of families, the office appointed a head of the household (usually the father) who received the full standard rate. All other household members received only 80 percent of the standard rate, and underage children sometimes received less. Young people, on the other hand, received higher benefits than adults because they were granted a so-called need for growth. The level of the standard rates was determined by the individual federal states; the office could set a different standard rate if this was necessary due to the special situation of the individual case. For certain groups of people, the law stipulated additional needs across the board, for example for people with walking difficulties, pregnant women, single parents and people who were dependent on medically prescribed health food.
In addition to the necessary livelihood, the support for livelihood also included the assumption of health and long-term care insurance contributions (Section 13 BSHG), the coverage of contributions for a death benefit insurance and old age insurance (Section 14 BSHG) as well as the assumption of funeral costs (Section 15 BSHG).
The subordination of assistance to livelihood was also expressed in extensive work and maintenance obligations. Parents and children were fundamentally obliged to cover the needs of the beneficiary as part of their maintenance obligations and could, if necessary, be called upon in court by the social welfare agency. The beneficiary himself had to contribute to reducing his need by taking up a reasonable job; if he refused, the benefits could be reduced or, in individual cases, even completely canceled.
In the early days the BSHG saw in § 26 is still the possibility of people who are persistently refused, despite repeated requests to make reasonable work against their will in a closed institution ( workhouse ) accommodate . The Federal Constitutional Court declared the legal right of placement to be constitutional, but only to the extent that ongoing maintenance assistance had to be granted to dependents as a result of the refusal to work. In this case, the norm serves to protect the general public, since they ultimately have to support the family. With the abolition of the workhouse in criminal law and the closure of such institutions, the regulation increasingly came to nothing and so it was deleted again in the early 1970s.
Help in special situations
Help in special situations included:
- Help to build up or secure a livelihood
- Training aid (not applicable in 1983)
- Help with illness
- Integration assistance for disabled people
- Tuberculosis Aid (dropped in 1987)
- Help for the blind
- Help with care
- Help to keep the budget going
- Help for those at risk (declared unconstitutional and void by the Federal Constitutional Court in 1967)
- Help to overcome particular social difficulties
- Elderly care
- other aids not mentioned above
Income and assets credit
The tax allowances for assistance with subsistence amounted to € 1,279 (previously DM 2,500), aid in special situations was € 2301 (previously DM 4,500), and for blind people and those in need of extreme care (care level III) € 4,091 (previously DM 8,000).
Due to a special regulation (Section 88 (3) sentence 3 BSHG), disabled people who worked in a workshop for disabled people were subject to an increased asset tax allowance of € 23,010 (ten times the tax allowance that would otherwise apply to help in special situations).
The urban and rural districts were responsible for social assistance benefits; in certain cases also supra-local authorities (for example in North Rhine-Westphalia the regional associations).
As part of the Hartz IV concept, on January 1, 2005, the previous unemployment benefit was merged with social assistance under the BSHG for job seekers and their relatives to form unemployment benefit II. The new benefits under SGB II are flat-rate and are essentially only slightly more than the level of the previous social assistance under the BSHG.
The previous regulations of social assistance according to the BSHG became part of SGB XII . At the same time, the basic security for old age and reduced earning capacity introduced in 2003 with its own law (GSiG Basic Security Act) was added to SGB XII . According to this law, people over the age of 65 and people with permanent or temporary disability receive support. The prerequisite for receiving benefits is need , which SGB II mentions and expressly defines need for help in Section 9. Those who are not covered by ALG II and basic security in old age can still be entitled to benefits for subsistence support (social assistance according to SGB XII).
Services under the laws mentioned here are largely flat-rate. Help related to individual cases, e.g. B. for defective furniture or other household items are only granted as loans in special cases, other needs such as the Christmas allowance are no longer recognized separately. In SGB XII there is the rarely used option of setting the standard rate higher or lower if the need is significantly different. In SGB II, the obligation to also take permanent special needs into account was created by judgment 1 BvL 1/09 of the Federal Constitutional Court of February 9, 2010 and was later adopted by the legislature.
- Ulrich-Arthur Birk: Federal Social Welfare Act. Teaching and practice commentary . 4th edition. Nomos Verlagsgesellschaft, Baden-Baden 1994, ISBN 3-7890-3314-6 .
- Friederike Föcking: Care in the economic boom. The creation of the Federal Social Welfare Act of 1961 . Oldenbourg Verlag, Munich 2007, ISBN 978-3-486-58132-4 .
- Reich principles on the prerequisites, type and degree of public welfare of December 4, 1924, RGBl. I p. 765
- Ordinance on the duty of care of February 13, 1924, RGBl. I, p. 100
- Christiane Habermalz: How Nazis in the Interior Ministry made career. Deutschlandfunk, November 5, 2011 
- BVerwG, June 30, 1965, AZ VC 29.64
- BVerwG, May 5, 1994, AZ 5 C 43.91
- BVerwG, June 27, 2002, AZ 5 C 65.01
- BVerfG, December 15, 1970, AZ 2 BvL 17/67