Help with care

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Help for care is a needs-based social service in Germany to support people in need of care who cannot ensure the necessary care expenditure from their own resources. Nursing assistance is part of social welfare and is regulated by law in §§ 61 ff. SGB XII. Since practically all benefits of the statutory long-term care insurance are budgeted , social assistance has to take over the otherwise uncovered need for care assistance due to the basic right to the protection of human dignity (fallback function). Because it is classified in social welfare, care assistance is only granted depending on income and wealth.

With the introduction of long-term care insurance on January 1, 1995, care assistance was fundamentally reformed. The main changes concerned the care levels and the benefits, which were adapted to the levels and benefits of SGB XI, as well as the extensive application of the procedural regulations and guidelines of the long-term care insurance to help with care. Future changes in the law of long-term care insurance will therefore also have an impact on care assistance. In 2017, around 3.9 billion euros were spent on care assistance, which corresponds to around 15% of social assistance expenditure.

The supra-local social welfare agency is responsible for providing care assistance (Section 97 (3) No. 2 SGB XII). The above local carrier are determined by the states (z. B. NRW the Landschaftsverbände ).

For those seeking help who turn to the local social welfare office, there are no deadline disadvantages ( Section 18 (2) SGB XII), because the incompetent, first approached social welfare provider can or must provide benefits ( Section 43 (1) SGB I). At least the known circumstances must be communicated immediately to the responsible social welfare agency.

Authorized group of people

Provided that the economic conditions for receiving social assistance are met, the following people are entitled to care help:

  • People who, due to the peculiarity of the individual case, cannot cover their care needs from priority sources of benefits, especially long-term care insurance, e.g. B. if the benefits in kind of long-term care insurance have been fully exhausted and there is further need for care by relatives who are, for. B. Care allowance is to be allocated.
  • People who need care according to care levels 2-5 of the long-term care insurance, but who do not meet the requirements of Section 14 (1) SGB XI because their need for help is likely to exist for less than six months,
  • People in need of care who are not entitled to long-term care insurance benefits because they are not required to be insured according to Sections 20 et seq. SGB XI or for other reasons are not entitled to long-term care insurance benefits.

Since April 1, 2007, there has been an extensive compulsory insurance in the statutory health insurance (Section 5 Paragraph 13 SGB V in conjunction with Section 186 Paragraph 11 SGB V), thus also compulsory membership in the statutory long-term care insurance. This means that the last-mentioned group of people is only limited to a few cases, e.g. B. to those people who are not entitled to long-term care insurance benefits due to insufficient previous insurance periods according to Section 33 (2) SGB XI.

With the introduction of care levels on January 1, 2017, the benefits of care assistance were also linked to the existence of at least care level 2. The subordinate granting of care assistance to people with minor care needs who do not meet the criteria for long-term care insurance benefits is no longer possible - contrary to the previous legal situation. It has not yet been clarified whether this is compatible with the fundamental right to human dignity.

Determination of the care level, commitment of the social welfare agency to the decision of the care fund

Section 61 (6) of the SGB XII stipulates that certain long-term care insurance regulations also apply to social assistance. The legislature wants to prevent double assessments and exclude that social assistance and long-term care insurance diverge with regard to the benefits and the guidelines of the long-term care insurance funds that have so far been decided at the level of self-administration . Thus, the decision of the long-term care insurance fund on the care level determined by the medical service (MDK) is directly binding for the social welfare provider (Section 62 of SGB XII). According to the wording of the regulation, the binding effect only applies with regard to the extent of the need for care, not with regard to the desired services.

The binding effect only exists with regard to decisions already made by the care insurance fund. If such a decision is still pending, the social welfare institution must determine the facts according to §§ 20 and 21 SGB X itself.

If the assessment is not carried out by the MDK, but by the local health department , because z. For example, if there is no membership in a long-term care insurance company, the guidelines of the long-term care insurance company also apply to the health department's expert.

Services

Performance principles, subordination

Due to the requirement coverage principle in Section 9, Paragraph 1 of Book XII of the Social Code, all services required for the necessary care are to be paid in full by the social assistance provider, minus any co-payment from the income , assets or means of a relative who is used for maintenance . The expert determines which services are required and to what extent. Priority benefits from long-term care insurance and other priority benefits, e.g. B. the statutory accident insurance are to be exhausted. The help for long-term care does not include budgeting of the services as in long-term care insurance. However, Section 9, Paragraph 2 of Book XII of the Social Code (SGB XII) (right to choose and wish) sets limits on the amount of benefits;

  • Example: If the implementation of home outpatient care is in individual cases significantly more expensive than full inpatient care, the social welfare provider may refuse to assume the costs as a whole. A partial assumption of the outpatient care costs up to the appropriate amount is usually not lawful because the need for care is not covered and thus the help with care is not suitable to ensure the necessary care.

In the area of ​​care assistance, outpatient home care generally takes precedence over partial or full inpatient care services (Section 63 of Book XII of the Social Code); the priority of outpatient over inpatient is already formulated for social assistance as a whole in Section 13 (1) of Book XII of the Social Code. The social assistance providers are obliged to work towards home care, that is to say specifically to initiate and maintain the care resources of the social environment. For the amount of specific benefit entitlements, this means that the authority must make all discretionary decisions - e.g. B. with the reduction of the care allowance (see below) - must check whether the goal of the respective regulation with regard to the maintenance or enabling of home care has (still) been achieved.

Tools

Aids are all nursing aids and technical aids from long-term care insurance within the meaning of Section 40 SGB XI. Because of the catching function of social assistance, depending on the specifics of the individual case, aids other than those in the list of aids in long-term care insurance according to Section 78 of Book XI of the Social Code must be approved.

Care allowance

The care benefit of the assistance for nursing care is due to the direct reference in § 64 with the care benefit from the SGB XII to the current care amounts of money to the amount of long-term care identical to § 37 SGB XI. It is also flat-rate according to the three care levels. Insofar as care allowance is paid by long-term care insurance, this must be offset in full (Section 66 (1) SGB XII). There is therefore no double receipt of care allowance from social assistance and care allowance from long-term care insurance.

In the case of simple care needs ("care level 0") there is no entitlement to care allowance from the care help. The legislator has adopted the criteria for the classification from Section 15 of the Book XI of the Social Code. Since the guidelines in accordance with Section 17 of the German Social Code Book XI ( Long-Term Care Guidelines (PflRi)) also apply to care assistance, the same amount of time spent on care assistance by lay carers as in long-term care insurance must be taken into account for classification in the care levels.

According to the previous case law on the Federal Social Welfare Act (BSHG), the care allowance serves to promote and maintain the willingness to care (see BVerwG 5 C 7.02). Care allowance is neither counted as income for the person in need of care (Section 82 (1) SGB XII) nor is it the caregiver's income because it is not a wage but a motivational one.

Costs for a special nurse (nurse, outpatient nursing service )

In the regulation of § 65 SGB ​​XII, which the legislature has taken over from the former § 69b BSHG, the use of a special nurse is regulated. This means a professional caregiver, this roughly corresponds to the “ care benefit in kind ” of long-term care insurance, which is actually a care service. The special care worker does not have to be employed by a social station , for example , but can also be employed directly by the person in need of care within the framework of the so-called “employer model” ( Section 66 (4) sentence 2 SGB XII). All those in need of care are entitled to this benefit , including those with “care level 0”. It is a compulsory benefit, the social welfare agency does not have any discretion . The only requirement is that a special carer must be called in, ie if home care by a carer is insufficient to cover the necessary need for care assistance. The reasonable costs of a special nurse are based on the remuneration rates that have been agreed between the contracting parties in accordance with Section 89 SGB XI. The benefit must be granted in addition to the care allowance if the person in need of care is also dependent on the help of one or more (lay) caregivers to ensure home care. In this case, however, the care allowance can be reduced by up to 2/3 (see below).

expenditure

The person in need of care has a legal right to reimbursement of the reasonable expenses incurred by a carer, regardless of a care level. The expenses must be proven in detail. Examples of expenses incurred by the caregiver include: travel costs, costs for care clothing and their cleaning (Section 65, Paragraph 1, Clause 1, Clause 1, SGB XII). In the case of the employer model, reasonable expenses also include the social security contributions to be paid by the person in need of care .

Aid

There is no legal entitlement to subsidies in accordance with Section 65, Paragraph 1, Clause 2 of SGB XII; this is at the discretion of the social welfare agency. When exercising discretion, the social welfare agency must give priority to home care over inpatient care, ie financial aids that strengthen the willingness to provide home care must be taken into account when exercising discretion. If domestic care is not ensured without subsidies because there is neither a carer nor neighbors who take care of the care free of charge, the discretion is regularly reduced to zero.

People in need of care of “care level 0” can apply for a so-called “small care allowance” in some municipalities, as there is no entitlement to care allowance according to Section 64 of the Social Code Book XII. This “small care allowance” is based on the amount below the care allowance for care level I (€ 235). As with the care allowance according to Section 64 of Book XII of the Social Code, the purpose of the "small care allowance" must also be to maintain the willingness of close people to care; it is therefore not to be counted as income for them like care allowance.

Old-age insurance for the carer

Contributions for an adequate old-age security (contributions to the statutory pension insurance of the carer) can be taken over in the case of simple need of care ("care level 0"). You have to be taken over if the care level I - III is present. The prerequisite in each case is that the assumption of pension contributions is not otherwise ensured, e.g. B. through long-term care insurance in § 44 SGB XI, employment or not already receiving a pension.

In the statutory pension insurance , however, these persons are not compulsorily insured because insurance is only compulsory according to Section 3 Clause 1 No. 1a SGB ​​VI if the caregiver looks after someone in need of care who receives benefits from social long-term care insurance or private long-term care insurance . Therefore, caregivers who care for someone in need of care who only receives benefits in accordance with SGB XII (social assistance) are not required to be insured. Therefore - provided the requirements of § 7 SGB VI (voluntary insurance) are met - only voluntary contributions can be made by the social welfare office. However, this has the disadvantage for the caregiver that, through voluntary contributions, they neither meet the requirements of Section 43 SGB VI ( disability pension ), nor the special requirements for old-age pensions (in particular old-age pensions for women for more than 121 calendar months with compulsory contributions from the 40th birthday etc.) can meet or maintain. Only a small group of people will not lose their existing insurance cover in cases of reduced earning capacity through voluntary contributions through the transitional provision of Section 241 SGB VI . Caregivers should definitely seek advice before starting care of a person in need of care who only receives benefits under SGB XII (social assistance) and not under SGB XI (long-term care insurance) or from private long-term care insurance. The social service providers are obliged to provide advice in accordance with Section 14 SGB I.

Relief for the carer

Insofar as there is no entitlement, no entitlement or entitlement to the priority benefit of long-term care insurance to relieve the caregiver from the work of caring, the so-called preventive care according to § 39 SGB ​​XI, or the maximum amount of this benefit of 1612 € (or 2418 €) is not sufficient, according to § 65 Abs. 1 Satz 2 SGB XII the social welfare has to cover the costs of the substitute care as a compulsory benefit, if there is a need according to social welfare standards. In contrast to long-term care insurance, there is no six-month waiting period.

Housekeeping

Housekeeping help within the scope of the activities mentioned in Section 61 (5) No. 4 SGB XII is also a service of care help, even below care level I. If housekeeping help is required without a simultaneous need for care, it must be checked whether whether the social welfare provider has to take over benefits according to § 70 SGB ​​XII (so-called "large domestic help") or § 28 paragraph 1 sentence 2 SGB XII ("small household help" - needs deviating from the standard rate due to the particularity of the individual case).

Care allowance reduction

If, in addition to care by a special carer or the care benefit in kind from the long-term care insurance, care allowance is received, the care allowance can be reduced by up to 2/3 (Section 66 (2) sentence 2 SGB XII). The reduction of the care allowance is left to the discretion of the social welfare agency. The scope for the reduction ranges from zero - no reduction - to two thirds, ie one third of the care allowance remains with the person in need of care. Based on the purpose of the care allowance as a motivational service for the caregiver, the guideline for exercising discretion is the extent to which the caregiver is relieved by the professional caregiver. In individual cases, this relief may be minimal; in this case, the possibility of reduction is not to be used.

  • Example: The single mother of a child in need of extreme care is supported three times a day by a nursing service who uses the benefit in kind of € 1,432 as part of care level III. However, since the mother has to provide care several times during the night and has to be available practically at all times during the day, the relief provided by the care service is low compared to the rest of the time. There is no discretion to reduce the care allowance of € 665.

There is a further possibility of reducing the care allowance in the case of day-care care (Section 66 Paragraph 3 SGB XII), whereby it does not matter whether the day-care care is financed as part of care assistance or as part of long-term care insurance. Here, too, the extent of the reduction is based on the relief of the caregiver through day-care inpatient care. It should be noted that the person in need of care with day care must be regularly looked after at home in the mornings, evenings and on weekends and public holidays.

Partial inpatient and short-term care

Partial inpatient care is the temporary care during the day in a facility. Partly inpatient care can be designed as day or night care . The long-term care insurance service, which has priority over help with care, is budgeted depending on the care level. If the long-term care insurance benefits are exhausted, there is a remaining claim to care allowance reduced by half or, alternatively, to care benefits in kind according to Section 41 Paragraphs 4-6 SGB XI (legal situation from July 1, 2008, until June 30, 2008 no longer exists care allowance or care benefits in kind from long-term care insurance). In practice, this leads to the problem that long-term care insurance funds for home care are reduced. However, these are regularly necessary because the person in need of care has to be looked after at home for the rest of the day or night and on weekends, by the caregiver and / or by a care service. Insofar as the funds of the long-term care insurance do not cover the need to ensure home care, these must be covered by social assistance within the framework of Section 61 of Book XII of the Social Code if the person in need of care does not have sufficient own funds. In addition, the costs for a professional caregiver must be covered, plus the (possibly reduced) care allowance for the respective care level.

Full inpatient care

People in need of care are entitled to care in fully inpatient facilities if home or part inpatient care is not possible or is not possible due to the special nature of the individual case (so-called need for home care ). Long-term care insurance only contributes to the care costs incurred (for care expenses, for medical treatment care, as well as for social care in the home). This is a flat-rate, rigidly limited grant per month that covers the actually incurred - and continuously increasing - care costs to an ever smaller extent (partial benefit insurance). At the same time, the self-contribution of those in need of care increased continuously (in this way a gradual privatization of costs was brought about).

The (average) monthly pure care costs (i.e. without the additional costs for accommodation and meals as well as investment costs for inpatient care) were in Germany in 2011:

for care level I - 1369 euros

for care level II - 1811 euros and

for care level III - 2278 euros.

In 2011, however, the statutory insurance only paid lump sums (maximum in each case):

for care level I - 1023 euros

for care level II - 1279 euros and

for care level III - 1510 euros. (From January 1, 2012 this amount was increased to 1550 euros).

This meant that in 2011 the person in need of care had to pay considerable contributions themselves:

for care level I - 346 euros

for care level II - 532 euros and

for care level III - 768 euros.

The so-called "hotel costs" of the care facility - costs for accommodation and meals as well as the investment costs incurred (purchase, rent and maintenance of the home building) - are not covered by the care insurance. ( Section 4 (2) sentence 2 SGB XI). If the person in need of care is not in a position to raise these "hotel costs" from their own income, these are covered by social assistance under certain conditions ( Section 35 (1) SGB XII).

If the social welfare institution applies for the assumption of costs, the social welfare office checks whether children are dependent on maintenance and can therefore be used to pay. The so-called " parental maintenance " is the obligation of the child towards his parents according to BGB (§§ 1601ff.). In order to determine whether the child is able to do so, the social welfare office can request information from the child about his income and financial situation. These must be disclosed according to § 1605 BGB. If the child's ability to perform is determined, his or her income can be used up to the so-called “ reasonable deductible ”. If the children have other maintenance obligations (e.g. children, divorced spouses), Section 1609 of the German Civil Code defines a ranking of the dependent.

As long as the maintenance obligation is unclear or no maintenance is actually paid, the social welfare provider must provide benefits. For the time for which services are provided, a maintenance claim under civil law up to the amount of the expenses incurred, together with the maintenance law information claim, is transferred to the social welfare institution according to Section 94 of the Social Code Book XII.

The amount of the cost of living in institutions to be borne by the social welfare institution is based on the basic security benefits and therefore cannot be allocated to care assistance. If the costs for accommodation and meals of the facility exceed the basic security benefits, they are nonetheless to be covered in full due to the requirement coverage principle. The assumption of costs by the social welfare provider requires that an agreement has been concluded with the care facility in accordance with Section 75 ff. SGB XII; exceptions are possible in individual cases (Section 75, Paragraph 4, SGB XII).

In addition, the other necessary livelihood must be taken over. This includes, in particular, a clothing allowance and a cash amount for personal use (colloquially “pocket money”). The cash amount is at least 27% of standard requirement level 1 (= € 110.42). The cash amount also includes expenses for personal hygiene and cleaning, for the maintenance of shoes, clothes and laundry on a smaller scale and for the procurement of laundry and household items on a smaller scale (BVerwG 5 C 42/03).

If there is no entitlement to benefits from the statutory long-term care insurance or if the budget of the long-term care insurance is insufficient to cover the full care costs, social assistance will also cover the (excess) care costs according to Section 61 (2) sentence 1 SGB XII.

Crediting of income and assets

The use of the income and assets of the person seeking help results from § 2 SGB XII, according to which social assistance benefits are only given to those who cannot cover their needs themselves through the use of their income and assets, among other things. In principle, certain types of income are not taken into account in social assistance, including:

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).

In the case of care assistance, the income is used, unlike, for example, with basic security and support for living , usually only above a certain amount, the so-called income limit , which is calculated individually in each case (Section 85 SGB XII).

  • Example: If the income limit in an individual case is EUR 1,000, the person in need of care is usually only credited with the part of his income that exceeds EUR 1,000.

The income limit is made up of the sum of three individual amounts:

  • a basic amount equal to twice the applicable standard requirement level 1: 2 times EUR 409 = EUR 818 (from January 1, 2017),
  • the reasonable cost of accommodation, excluding heating costs, because according to Section 27 (1) SGB XII, heating is a requirement separate from accommodation
  • a family allowance in the amount of 70% of the standard requirement level 1, rounded up to the nearest full euro, for the spouse or partner who is not separated (as well as other persons according to Section 85 (1) No. 3 SGB XII): EUR 286.30.

If the adjusted income exceeds the income limit, an appropriate amount of income can be expected (Section 87 of the Social Code Book XII). The concept of the appropriate scope is an indefinite legal term , the design of which is to be geared to the specifics of the individual case. In some special cases, the use of income below the income limit can also be required (Section 88 of Book XII of the Social Code). If care assistance is provided for people in a day-care or in-patient facility, Section 92a of the Social Code Book XII, which was newly inserted from January 1, 2007, limits the use of the non-separated spouse or partner to the savings for domestic subsistence. Access to the entire income is possible for single people who will probably have to be cared for in a fully inpatient facility for a longer period of time. A period of one year or longer is given in the literature as a period in this sense.

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 not taken into account up to an amount of € 2,600; for the spouse or partner , an additional € 614 remains exempt. If both spouses or life partners receive the care allowance of care level III according to Section 64 (3), € 1,534 remains for the partner instead of the aforementioned amount of € 614.

Reimbursement of costs by heirs

The heirs are left with an allowance of 15,340 EUR from the estate ( Section 102 (3) No. 2 SGB XII). A prerequisite here is u. a. that the heir, as a spouse, partner or relative, has looked after the recipient of assistance and lived with him / her in a community.

Procedure and remedies

Help for care starts as soon as the social welfare institution becomes aware that the prerequisites 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 social welfare provider has to determine the facts ex officio in accordance with § 20 SGB X after it becomes known (principle of official investigation) if there are indications of a need for help with care. For reasons of evidence, it is advisable to submit a formal (written) application.

Anyone who believes their rights have been violated can appeal against the decisions of the authority (Sections 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 (§ 51 Paragraph 1 No. 6a SGG ).

Reasons for an objection / a lawsuit can include:

  • the approved care level does not correspond to the expected care level;
  • a requested service was rejected with regard to the scope or type of service;
  • the person seeking help believes that his or her rights with regard to procedural or jurisdiction decisions by the authority have been violated.

The parties involved have (not only) the right to inspect files (Section 25 SGB ​​X ), including the respective maintenance reports, in objection / complaint proceedings . Section C 2.8.3 of the assessment guidelines contain special statements on assessment in the objection procedure.

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

See also

Individual evidence

  1. ↑ Exceptions: care aids, care courses
  2. ↑ Expenditure and Income Federal Statistical Office, accessed on September 24, 2018.
  3. ↑ Expert opinion of the German Association for Public and Private Welfare: On the application of the additional cost reserve in social assistance (October 6, 2005)  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF file; 60 kB)@1@ 2Template: Toter Link / www.deutscher-verein.de  
  4. ↑ Long- term care guidelines ( memento of the original from September 25, 2008 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 / infomed.mds-ev.de
  5. ↑ a b BSG, August 26, 2008, AZ B 8 / 9b SO 18/07 R
  6. ↑ Barmer GEK: Barmer GEK care report 2013. November 2013, p. 122 / Tab. 23 ( Memento of the original from December 24, 2013 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 / presse.barmer-gek.de
  7. ↑ Barmer GEK: Barmer GEK care report 2013. November 2013, p. 122 / Tab. 23 ( Memento of the original from December 24, 2013 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 / presse.barmer-gek.de
  8. ↑ Barmer GEK: Barmer GEK care report 2013. November 2013, pp. 12 + 122 / table 23; The table also shows the increase from 1999 to 2011 ( memento of the original from December 24, 2013 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 / presse.barmer-gek.de
  9. ↑ Spiegel-Online February 2, 2011: Everything you need to know about long-term care insurance. - Here: Point 3: When children have to pay for their parents; Point 4: Why sons and daughters-in-law also have to pay