Help with living

from Wikipedia, the free encyclopedia

The assistance for subsistence (HLU, partly: HzLu, HzL) is an existing in Germany needs-based social performance to ensure the socio-cultural subsistence minimum , legally regulated in the same third chapter SGB XII - welfare . In addition to unemployment benefit II ( SGB ​​II ) and basic security in old age and reduced earning capacity, it forms the lowest level in the social security network.

Group of people

With the introduction of Unemployment Benefit II , Section 21 of Book XII of the Social Code (SGB XII) made a distinction between it and social assistance benefits. Accordingly, anyone who is able to work or a member of such a person (with the right to social allowance ) is basically entitled to benefits is not entitled to assistance with living expenses . This means that on the one hand persons who are fully disabled and cannot receive benefits under SGB II as relatives and on the other hand persons who are subject to a reason for exclusion under Section 7 SGB ​​II and who are therefore not entitled to unemployment benefit II on the basis remain as potential beneficiaries . Since, due to the subordination of social assistance, subsistence assistance is subordinate to other social assistance benefits, an entitlement also requires that there is no entitlement to basic security in old age and in the case of reduced earning capacity .

While in 2004, before the entry into force of SGB II, 9.981 billion euros were still spent on assistance with subsistence, the expenditure fell significantly afterwards. In 2006 it was still 1.065 billion euros. This corresponds to a decrease in the share of all social assistance expenditure from just under 38% to 5.2%.

The following groups of people remain as potentially beneficiaries:

Fully disabled persons for a limited period

This includes people for whom either the Deutsche Rentenversicherung ( German Pension Insurance) only found a temporary full reduction in earning capacity (usually over three years) in its assessment, regardless of whether a pension is actually being drawn or not, or people for whom no assessment was carried out from the outset, because the responsible social welfare office has not contradicted the opinion of the primarily responsible service provider (usually the job center ).

Since a permanent full reduction in earning capacity is necessary to receive basic security according to § 41 SGB ​​XII , these persons cannot receive basic security. On the other hand, as fully disabled people, they are also excluded from unemployment benefit II. So if there is no entitlement to social allowance, these people can receive support for their living.

Stay in an inpatient facility

Those who stay in an inpatient facility are excluded from unemployment benefit II and instead receive help with their livelihood if necessary. This is the case, for example, when staying in a home for the elderly, nursing home or the disabled, or when staying in a hospital if this stay lasts longer than six months.

Children under 15 years

Children under the age of 15 are not able to work. If they cannot be considered as relatives by their parents, they can be entitled to assistance with their livelihood. This constellation can occur either if the parents themselves are fully disabled or if the child does not live with the parents, but with other relatives (e.g. with the grandparents).

Fully disabled children between 15 and 18 years of age are not entitled to basic security, as this requires a minimum age of 18 years according to Section 41 (3) SGB XII; these children can also claim help with their livelihood.

No actual entitlement to basic security

If there is a basic right to basic security, but the application is actually rejected, the social welfare office has to provide assistance with subsistence instead. This can happen in the following cases:

  • According to Section 41 (4) SGB XII, the need for social assistance was brought about intentionally or through gross negligence over the past ten years . In this case, however, the social welfare office can, according to Section 26 of Book XII of the Social Code, restrict benefits to what is “essential for subsistence”; in practice, the standard rate is reduced by 20 to 30 percent.
  • The dependent relatives (parents and children) earn more than 100,000 euros a year. According to Section 43 (5) SGB XII, this also leads to an exclusion of benefits, which means that the social welfare office has to provide assistance with living expenses and can then assert claims against relatives who are obliged to provide maintenance. According to a decision by the Federal Court of Justice, however, this only applies to the relatives with a correspondingly high income; a transfer of the entitlement to the other relatives with a lower annual income constitutes undue hardship.

Drawing of retirement pension

The receipt of old-age pension excludes entitlement to unemployment benefit II. This also applies if the person receives a foreign pension that is comparable to the German old-age pension. If the standard retirement age has not yet been reached, there is no entitlement to basic security, so that help with living costs can be obtained if necessary.

In practice, this entitlement basis became more and more important, as the job center beneficiaries from 63 years of age asked to apply for a pension early (“compulsory retirement”). Due to the considerable deductions, this could mean that the pension was no longer sufficient to cover a living and had to be topped up with social assistance benefits. In order to counteract this, Section 6 of the Inequity Ordinance was introduced: As of January 1, 2017, as a result of the Flexirentengesetz, the obligation in SGB II to claim an early retirement pension is unreasonable even if this would result in the expected pension being so low that additional benefits are still available Social assistance according to SGB XII would have to be drawn in order to secure a living.

EU foreigners

In 2015, the Federal Social Court ruled that it is legal to exclude foreigners who are only staying in Germany for the purpose of looking for work from unemployment benefit II. At the same time, however, the court ruled that for the purpose of securing the socio-cultural subsistence level, assistance with subsistence needs to be granted if there is a permanent stay in Germany, which is the case after six months at the earliest.

However, the State Social Court of Rhineland-Palatinate did not follow the arguments of the Federal Social Court in August 2016.

However, compare: European Welfare Agreement # 2016 introduced new regulation: Restriction of social assistance for EU citizens

Asylum seekers

Foreigners who fall within the scope of the Asylum Seekers Benefits Act (AsylbLG) initially receive basic benefits in accordance with Section 3 AsylbLG, the amount of which is slightly below the benefits of SGB XII. If you have not improperly influenced the length of your stay in Germany yourself, after 15 months of receiving basic benefits you have a legal right to benefits in accordance with the rules of Chapter 3 SGB XII as well as benefits (partly as compulsory, partly as discretionary benefits, cf. § 23 Paragraph 1 SGB XII) corresponding to the 5th to 9th chapter of SGB XII. This results from Section 2 (1) AsylbLG, which orders analogous application of SGB XII. According to the prevailing opinion, this is not a legal reason , but a legal consequence . In terms of legal methodology, this has the consequence that beneficiaries under the AsylbLG continue to be governed by the provisions of the AsylbLG on administrative procedures and they do not become beneficiaries under SGB XII. The form, amount and scope of the benefits are based on social assistance law.

Eligibility requirements

According to Section 27 of the SGB ​​XII, those who cannot earn their own living receive support. Here, income and wealth are the applicant and the persons in the use of community to consider, these are the not permanently separated spouse of the applicant and, if the applicant is a minor and unmarried, whose parents. If the need for help is expected to only exist for a short period of time, benefits according to Section 38 SGB ​​XII can also be provided as a loan, which is to be repaid after the need for help has ended.

If the applicant lives with other people in an apartment or accommodation, it is assumed according to Section 39 SGB ​​XII that he forms a household community with these people and is financially supported by these people. In contrast to SGB II, this assumption applies not only to relatives or by-laws, but also to total strangers. However, the presumption can be refuted by the applicant. The presumption of a household community is not permissible if the applicant is pregnant or is caring for their biological child who is up to six years old, or if the applicant is disabled or in need of care.

Section 27 (3) of the SGB XII regulates what is known as small household help . If people are not in need of help, but have a need for household services, support for livelihood can be granted. The practical relevance of this regulation has hardly existed since the introduction of SGB II.

Section 39a of the SGB ​​XII standardizes a sanction regulation similar to that of SGB II, but which is no longer of any practical relevance, because a recipient of social welfare can usually not be expected to work from the outset.

Services

Standard requirement

The standard requirement for recipients of assistance for subsistence is regulated in Section 27a of the Social Code Book XII and results specifically from the standard requirement levels specified in the Standard Requirements Determination Act. However, paragraph 4 also allows a different determination of the standard need upwards if there is a special need in a specific case, as well as downwards if individual needs are already covered by other social assistance benefits, such as free lunch in a workshop for disabled people .

According to Section 29 of Book XII of the Social Code, the federal states may set the standard requirement levels in the legal family of Book XII in a flat-rate way. This is currently only used by the Free State of Bavaria, which has passed responsibility on to the municipalities; As a result, service recipients in the Munich metropolitan area (city of Munich , district of Munich , district of Fürstenfeldbruck ) have a higher standard requirement than in the rest of Germany.

If the beneficiary is housed in an inpatient facility (such as a retirement or nursing home), the calculation of the standard requirement is based on Section 27b SGB ​​XII. Since most of the needs are already covered by the facility, beneficiaries only receive a clothing allowance in kind as well as personal cash needs at their disposal. For adults, this amounts to 27 percent of the standard requirement (currently 110.43 euros); for children, the individual federal states regulate the amount of cash required. However, a personal need for cash is excluded for blind people. ( § 72 Abs. 4 SGB XII)

Since 2004, the additional payment to statutory health insurance has to be paid from this personal cash requirement. However, since this can hardly be done financially, the social welfare agency grants a loan according to Section 37 (2) SGB XII, which is to be repaid evenly over the year.

Additional requirement

Certain additional requirements are taken into account from the outset according to Section 30 of Book XII of the Social Code, and thus increase the requirement. They are largely regulated as in SGB II. This concerns the additional requirement during pregnancy, the additional requirement for single parents, the additional requirement for disabled people, the additional requirement for necessary health food and the additional requirement for decentralized hot water supply.

An additional need that only exists in social assistance is the additional need for people with walking difficulties. This additional requirement, amounting to 17 percent of the relevant standard requirement, is received by people who have a severely handicapped ID with the mark G. Employable people do not receive this additional requirement; this discrimination was approved by the Federal Social Court.

cost of accommodation

The consideration of the costs of accommodation and heating is based on § 35 SGB ​​XII and corresponds to the relevant regulations in SGB II. In deviation from SGB II, however, the social welfare institution can also set a flat rate for the costs of accommodation, but this is not used in practice.

Benefits for education and participation

The services for education and participation according to § 34 SGB ​​XII are provided largely analogous to the regulations in SGB II.

One-time needs

One-off requirements in accordance with Section 31 of Book XII of the Social Code are also granted analogously to the provisions of Book II of the Social Code. Specifically, these are the initial equipment of an apartment with household items, the initial equipment for clothing, during pregnancy and childbirth, and finally the initial equipment of orthopedic shoes.

This does not include a replacement. If a requirement that is intended in and of itself as part of the standard requirement cannot be met, the social welfare provider should provide a loan in accordance with Section 37 (1) SGB XII, which may be offset against a maximum of 5 percent of the standard requirement.

Contributions to health and long-term care insurance

Subsistence assistance recipients are not covered by statutory health insurance. Under certain circumstances, however, the contributions for health and long-term care insurance according to § 32 SGB ​​XII can be considered as a requirement.

For those who are still insured within the meaning of Section 9 (1) SGB V, the contributions for voluntary health insurance are to be paid. If a person is affected by the mandatory safety insurance and is only in need of help because of the contributions due, these contributions must also be covered. The contributions can be taken over for all other recipients of voluntary health insurance. It is controversial in the jurisprudence whether in times of mandatory health insurance for all German citizens the discretion is reduced to zero in all cases.

If the beneficiary has private health insurance, the insurance premiums will be paid insofar as they are appropriate, i.e. half of the premium at the basic rate as a rule . A limitation to the costs for a person with compulsory insurance in the GKV is not applicable to social welfare benefits in terms of the wording alone.

Section 32a SGB ​​XII stipulates that the contributions must always be taken into account in the month for which the insurance exists. This new regulation, introduced in 2016, closes a gap in coverage that could occur under previous law if a beneficiary switched from SGB XII to SGB II.

Pension contributions

Section 33 SGB ​​XII enables contributions to old-age provision and contributions to private death benefit insurance to be recognized as additional requirements. This is particularly relevant in cases in which the beneficiaryhas not yet completedthe general waiting period for claiming the standard old-age pension and would have to cover their entire livelihood in old age without taking into account the contributions made by social assistanceproviders.

Income and assets credit

The entitled persons are only entitled to HzLu if their livelihood cannot be secured from their income and / or assets. The use of income is based on Section 82 of Book XII of the Social Code and the related implementation ordinance . According to this, essentially all monthly income accruing in the required period is to be offset against the HzLu. Certain amounts are to be deducted from the income, especially taxes and social security contributions and other expenses related to the generation of the income (so-called "adjusted" income). Furthermore, a share of 30 percent of the adjusted income from self-employed and salaried work must be deducted. The deductible amount must not exceed half of the applicable basic standard rate (new regulation from January 1, 2007).

For employees of a workshop for disabled people , a special regulation applies to the calculation of the deductible amount. The legislature intended to create an incentive for gainful employment and workshop employment with the option of deduction.

The following are not counted towards the HzLu:

In contrast to childcare allowance, parental allowance has been counted as income since January 1, 2007 , but only the part that is above 300 euros per month.

The credit of the beneficiaries' assets is based on § 90 SGB ​​XII and the related implementing ordinance. In principle, the entire realizable assets must be used, with numerous exceptions to the law that can make asset accounting very difficult in practice. Smaller amounts of cash or other monetary values are up to an amount of 1,600 € not count, in individuals 60 years and in full working impaired people 2,600 euros, for the marriage - or life partners remain additional 614 € qualifying free.

Procedure and remedies

Aid for subsistence starts as soon as the social welfare institution becomes aware that the conditions for the benefit are met ( Section 18 (1) SGB XII). This "becoming known" can z. B. by a phone call by the person concerned or by third parties, e.g. B. Neighbors, happen at the social welfare office. This regulation is a special feature of social assistance and enables citizens to have low-threshold access to social assistance benefits. The welfare agency has after the announcement according to § 20 SGB X ex officio to determine (the facts ex officio investigations principle ), if there are indications of a need for help for livelihood. For reasons of evidence, it is advisable to submit a formal (written) application.

Anyone who believes that their rights have been violated can appeal against the decisions of the authority (Section 78 ff. Social Court Act ). The objection must be submitted in writing or for recording within one month. After the notice of objection has been issued, an action can be brought if the objection has not been remedied. The courts of social justice are responsible for disputes in matters of social welfare (Section 51 (1) No. 6a SGG).

Objections and lawsuits generally have no suspensive effect in social welfare. The constant jurisprudence of the Federal Administrative Court on the earlier social welfare under the Federal Social Welfare Act said: "Social welfare is not a permanent benefit equivalent to a pension and needs to be regulated every day."

See also

swell

  1. ↑ § 27 to § 40 SGB ​​XII
  2. ↑ Time series: gross expenditure according to SGB XII ( Memento of the original from April 23, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.destatis.de
  3. ↑ BGH, July 8, 2015, AZ XII ZB 56/14
  4. ↑ Press release of the Federal Social Court
  5. ↑ "No social welfare entitlement for EU foreigners" ( Memento of the original from July 17, 2019 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Ref .: L 3 AS 376/16 B ER article from 23 August 2016 @1@ 2Template: Webachiv / IABot / www.deutschlandfunk.de
  6. ↑ Wahrendorf in: Grube / Wahrendorf, SGB XII Commentary, § 2 AsylbLG, paragraph 25.
  7. ↑ BSG, December 11, 2007, AZ B 8 / 9b SO 21/06 R
  8. ↑ Because of the high cost of living: District increases social welfare - Münchner Merkur
  9. ^ BSG, December 15, 2010, AZ B 14 AS 44/09 R
  10. ↑ BSG, November 15, 2012, AZ B 8 SO 3/11 R
  11. ↑ BSG, November 10, 2011, AZ B 8 SO 21/10 R
  12. ^ LSG Lower Saxony-Bremen, March 22, 2007, AZ L 8 SO 39/06
  13. ↑ Implementation ordinance for § 82 SGB XII
  14. ↑ Help for subsistence Hamburg.de, accessed on September 24, 2018.