Need for help
In German social law, the need for assistance is a requirement for tax-financed transfer payments . Avoiding or overcoming the need for assistance contributes significantly to social security and is a result of the welfare state principle . The services originally supported primarily by the idea of welfare now also serve to participate in social, cultural and political life and thus to secure a socio-cultural subsistence level .
The maintenance law of the German Civil Code speaks of neediness ( § 1602 BGB) and follows its own rules.
meaning
As part of social policy , the state ensures secondary redistribution , as primary redistribution does not work completely and leads to social injustices. As part of this secondary redistribution, benefit laws aim to ensure that a certain group of people receive state aid. In order to identify these persons and windfall gains largely excluded, the legislature has the vague legal concept of the need for assistance coined.
However, the need for assistance is subject to the principle of subsidiarity and only takes effect if neither earned income nor assets , relatives or spouses liable to depend, nor priority social benefits are available to meet needs. Because everyone is primarily responsible for their financial or material needs and thus for covering them according to the principle of personal responsibility .
Federal Social Welfare Act
According to Section 1 (2) of the Federal Social Welfare Act (BSHG), which was repealed with effect from January 1, 2005 by the Act on Classification of Social Welfare Law in the Social Security Code , it was the task of social welfare to enable the recipient of the help to lead a life that was in keeping with the dignity of People corresponds. Forms of social assistance were personal assistance, cash benefits or benefits in kind (Section 8 (1) BSHG). Support for livelihood was to be granted to those who could not or insufficiently obtain the necessary livelihood from their own resources and resources, especially from their income and assets (Section 11 (1) sentence 1 BSHG). The necessary livelihood included food, accommodation, clothing, personal hygiene, household items, heating and personal needs of daily life (Section 12 (1) BSHG). Current cash benefits for living expenses were granted according to standard flat rates (Section 22 (1) sentence 1 BSHG).
The BSHG referred to the beneficiaries as those seeking or receiving help .
Right of basic security
SGB II
SGB II , which came into force on January 1, 2005, contains a legal definition in Section 9 SGB II . According to this, people are in need of help who cannot or cannot sufficiently secure their livelihood from the income or assets to be taken into account and who do not receive the necessary help from others, in particular from relatives or other social benefits providers (Section 9 (1) SGB II). Also in need of help is someone who is unable to use or realize the assets to be taken into account immediately or for whom this would mean particular hardship (Section 9 (4) SGB II).
More details on determining the need for assistance and calculating the benefits to be granted are contained in the technical information SGB II of the Federal Employment Agency (BA).
The need for help must be demonstrated by the applicant. The courts, in turn, are obliged to ensure a decent subsistence level through effective legal protection, regardless of the reasons for the need for assistance.
The BA and the responsible Federal Ministry of Labor and Social Affairs regularly conduct socio-political studies on the economic, social and institutional conditions that affect the need for assistance.
In the absence of any prospect of overcoming the need for help, there can be no entitlement to certain services. This applies in particular to benefits that require the unemployment category to be applicable . However, those classified as fully disabled (this applies to many people with disabilities) cannot, by definition, become unemployed.
SGB XII
The definition in Section 9 SGB II, which applies directly to the basic security for job seekers , also applies accordingly to SGB XII , which came into force on January 1, 2005 and has since regulated social assistance as well as basic security in old age and in the event of reduced earning capacity . Like SGB II, SGB XII speaks of beneficiaries . These are people who cannot or insufficiently meet their necessary livelihood from their own resources and resources. Your own resources are in particular your own income and assets ( Section 27 SGB XII). The necessary livelihood includes in particular food, clothing, personal hygiene, household effects, household energy, personal needs of daily life as well as accommodation and heating and should guarantee the subsistence level ( § 27a SGB XII). The standard rate granted for this represents a monthly lump sum, the use of which the beneficiaries decide on their own responsibility.
In the course of the gradual implementation of the law to strengthen the participation and self-determination of people with disabilities , in short Federal Participation Act (BTHG), provisions of SGB XII that affect people with disabilities will be transferred to SGB IX. This is to make it clear that people with disabilities belong to their own category. The logic of measures that were designed for people in a possible and desirably only temporary emergency should not be applied to them in full . This applies in particular to the dismantling of externally determined definitions of the needs of a person with a disability.
social insurance
When receiving contribution-financed social benefits such as unemployment benefits or an old-age pension , the amount of which does not guarantee the minimum subsistence level, the recipient is also in need of assistance and can also receive basic security benefits. The same applies to low income ( top-ups ).
Benefits from the statutory social insurance may not be reduced by way of offsetting ( Section 51 SGB I) to such an extent that the need for help according to SGB XII or SGB II occurs.
People with significantly limited everyday skills without a care level (so-called care level "0") are also designated as in need of help in social long-term care insurance law ( Section 45a, Paragraph 1, No. 2 of the Social Code Book XI) and can claim additional care and relief services to finance care assistance.
Other laws
Without mentioning the term itself, a need for help is also assumed in § 1 , § 11 BAföG , for certain employment promotion services such as vocational training allowance or in § 7 AsylbLG .
Income and property
Since existing income and assets exclude the need for assistance, the relevant income and asset terms are defined by law. Income , according to § 82 SGB XII all income in money or goods, also fictitious income as the living benefit of a rent-free housing ( condo , home ) are also included. The concept of income does not include the pension under the Federal Pension Act ; taxes paid on income or social security contributions, for example, are to be deducted from income . After § 90 Abs. 1 SGB XII the entire usable's ability to use except in § 90 mentioned Para. 2 SGB XII Already assets . Income and assets must first be used up to the saved assets before social assistance can be claimed.
Abuse and circumvention
Abuse and evasion offenses are punished in the context of the abuse of services . The courts had to deal with a large number of abuse and circumvention issues. This begins with the concealment of income and assets and ends with the prohibited transfer of income and assets to straw men . According to § 60 SGB I , the applicant or recipient of social benefits must state all facts relevant to the performance and report any changes in their circumstances. Intentional violations of this are punishable as performance fraud according to § 263 StGB.
In Austria, a separate criminal provision was created for social fraud with Section 153d ÖStGB.
In Switzerland there is talk of abuse of social assistance .
Transfer payments without proof of need for assistance
Not all transfer payments assume a need for help equally. In Germany, the former home owner's allowance was paid independently of personal assets; there was only an upper limit for personal income. The amount of the parental allowance is also linked to the previous income, so that people with higher incomes receive more transfer payments up to a maximum limit, which does not correspond to the principle of need for assistance.
The concept of the unconditional basic income grants, where it has reached legal force, a general living financial benefit regardless of the economic situation in the individual case. The British Beveridge model is also designed as a universal basic social security system (independent of need) .
Individual evidence
- ^ BVerfG judgment of the First Senate of February 9, 2010 - 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09
- ↑ Katharina von Koppenfels-Spieß, Die Cessio legis , 2006, p. 51
- ↑ SozhiEinOG of December 27, 2003 ( BGBl. I p. 3022 )
- ↑ Second Book of the Social Code - SGB II. Technical information, Section 9 SGB II Need for help As of June 20, 2014
- ↑ Hessian LSG decision of August 8, 2008, L 7 AS 149/08 B ER
- ↑ BVerfG decision of May 12, 2005 - 1 BvR 569/05
- ↑ Institute for Labor Market and Occupational Research : Poverty Dynamics and Labor Market: The emergence, consolidation and overcoming of the need for help among employable people, IAB project 896
- ↑ Institute for Applied Economic Research eV: Need for help and underemployment in the area of SGB II according to the way in which tasks are performed and the regional labor market background between March 2007 and March 2008 - volume of tables, investigation on behalf of the Federal Ministry of Labor and Social Affairs , Tübingen 2008
- ↑ BSG, decision of August 5, 2015 - B 4 AS 46/14 R ( Memento of August 11, 2015 in the Internet Archive ) on the entry fee according to § 16b SGB II
- ↑ Marc Nellen: The Federal Participation Act - content and implementation - . Potsdam. March 2, 2017. p. 31
- ↑ German Association for Public and Private Welfare eV: Recommendations of the German Association for the separation of professional services from services for securing livelihood in the area of living arrangements according to Section 42a, Paragraph 2, Clause 1, No. 2 SGB XII new version according to the Federal Participation Act . September 12, 2018
- ↑ German pension insurance : Determination of the offset amount Legal work instruction 4.2.2.1
- ↑ Need of help / care level 0 Ifo Institute for Economic Research , glossary
- ↑ Federal Ministry for Family, Seniors, Women and Youth : Possibilities and Limits of Self-Determined Lifestyles in Private Households ( Memento of the original dated September 23, 2015 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 4.5. Excursus careers of the need for help
- ↑ Federal Ministry of Health : Care services from January 1, 2015 ( Memento of the original from September 23, 2015 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
