Basic security in old age and reduced earning capacity

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The basic security in old age and in the case of reduced earning capacity ( §§ 41 ff. SGB ​​XII ) is a needs-based social benefit that has existed in Germany since January 1, 2005 to ensure the necessary livelihood in the case of need .

Basic security in old age and reduced earning capacity

People who have reached the age limit or who have permanently retired from working life due to reduced earning capacity and who are unable to earn their living receive support to cover the socio-cultural subsistence level. The basic security in old age and disability is a service of welfare and fulfills the same function as the aid for subsistence , but for a special group of people.

The legislature had initially passed an independent Basic Security Act (GSiG) in order to avoid granting social assistance. However, this resulted in numerous problems in practice due to the coexistence of two almost identical maintenance benefits (social assistance / basic security) and the possible parallel receipt, for example in the case of full inpatient care. The integration into social welfare from January 1, 2005 in SGB ​​XII led to a clarification of the application of the law, as most of the other social welfare regulations now also apply to basic security. However, this is a departure from the basic idea of ​​avoiding social assistance, as there is now only a modified form of social assistance that generally has to be applied for in social welfare offices . However, in practice, a considerable effort can now arise in the delimitation of the entitlement to benefits compared to the basic security for job seekers ("Hartz IV") according to SGB ​​II and support for subsistence according to SGB XII for people aged 18 to 64, because an assignment according to the characteristic of "permanent full disability" is to be made, which regularly requires a medical assessment (see below).

The purpose of the basic security "[...] is to provide an independent social benefit for old and permanently disabled people, which ensures the basic needs for livelihood." So-called hidden or shameful old-age poverty should also be prevented by the legal presumption that the annual income of dependent relatives does not exceed an amount of 100,000 euros ( Section 43 (5) SGB XII). In principle, there is no recourse to maintenance by the social welfare agency. A reimbursement of costs by the heirs of the beneficiaries is excluded ( Section 102 (5) SGB XII). Here, too, the intention of the legislature can be seen to counteract hidden poverty in old age.

However, according to a study by Irene Becker, hidden poverty among the elderly is still particularly high despite the basic security benefits in old age. According to their calculations in 2007, a good one million people aged 65 and over were entitled to basic security in old age and with disability, but only 340,000 of them actually made use of the benefit. Becker names shame and a lack of information as reasons for the very high non-utilization of the service.

In contrast to social assistance in general, which does not require a formal application, basic security is only granted upon application ( Section 18 (1) SGB XII). The basic security offices at the social welfare offices of the districts and urban districts are responsible for the approval of the basic security . The application can be submitted directly to the Basic Security Office or, alternatively, to the information and advice centers of the German Pension Insurance , which will forward it accordingly.

statistical data

At the end of 2003 around 439,000 people were receiving basic security benefits, at the end of 2010 around 797,000 people, and at the end of 2011 it was 844,000 people. In 2012 the number rose again. Around 900,000 people received basic security benefits. In 2013 the number was around 960,000 beneficiaries. This means that 1.4 percent of the population of full age throughout Germany were dependent on basic security benefits in old age or in the event of reduced earning capacity. If we only look at people over the retirement age of 65, at the end of 2011 2.9 percent of women and 2.2 percent of men were receiving basic security benefits in old age. At the end of 2013, the number of recipients of basic security benefits over the age of 65 was around 499,000. Compared to 2012, this is an increase of 7.4 percent. By the end of 2017, the number of old-age pensioners taking advantage of basic security rose to 544,000 = 3.16 percent of all old-age pensioners. For the end of 2030, an increase in the “constant” projection variant to 837,000 (= 4.4 percent) or in the “increase” variant to 1,013,000 (= 5.3 percent) is forecast. In both projection variants, the rate for men will be higher than that for women. In 2006, 3.158 billion euros were spent on basic security; by 2011, the expenditure had risen to 4.4 billion euros, which corresponds to around 19 percent of social assistance expenditure.

Group of people

Basic security in old age and in the case of reduced earning capacity is granted to anyone who has reached the age of 18 and is permanently and fully incapacitated within the meaning of the statutory pension insurance ( Section 43 (2) SGB ​​VI ) or has reached the age limit. Due to the RV Age Limit Adjustment Act , the age limit of 65 only applies to people born before January 1, 1947. For people who were born later, the age limit is gradually being raised ( Section 41 (2) SGB XII).

In many cases, basic security is initially granted for a limited period. Permanently fully reduced earning capacity is anyone who is unable to work due to illness or disability for the foreseeable future (more precisely: in the next nine years, see Section 102 (2) sentence 5 SGB VI) under the usual conditions of the general labor market regardless of the labor market situation, every day work for at least three hours. Anyone who can work for at least three hours a day receives basic security for job seekers according to the provisions of SGB II.

An assessment of permanent full disability is always an expert examination of the medical prerequisites ( Section 45 (1) SGB XII). The respective pension insurance provider carries out the report. If an expert opinion has already been drawn up for an application for a disability pension , this expert opinion is binding for the basic security provider. It is possible that the Federal Employment Agency has already obtained an expert opinion on a previous application for unemployment benefit II, which can lead to the applicant being assessed twice in a row with regard to the ability to work.

Scope of services

The benefits are based on § 42 No. 1–5 SGB XII.

The standard rates for food, clothing, personal care, household items, household electricity and personal needs of daily life are calculated on a flat-rate basis according to standard requirement levels that are determined by the state governments ( Section 42 No. 1 SGB XII, Annex to Section 28 SGB ​​XII). If free lunch is provided for disabled people in a workshop, the standard rate is to be reduced ( Section 28 (1) sentence 2 SGB XII) because the cost of food, which is covered by the standard rate, is partially covered by the free meal . This does not apply in the entry procedure and in the vocational training area. Since January 1, 2020, the standard monthly rate has been 432 euros for single persons or for the head of the household and 389 euros for partners and spouses (Annex to Section 28 SGB XII).

In addition, there are the additional needs according to § 30 SGB ​​XII to § 33 SGB ​​XII and § 42b SGB ​​XII ( § 42 No. 2 SGB XII), for example for expensive nutrition for sick, convalescent or disabled people or the purchase and repairs of orthopedic shoes. The requirements for adequate health and long-term care insurance are regulated in § 35 SGB ​​XII, requirements for adequate old-age insurance in § 33 SGB ​​XII.

Benefits for accommodation and heating are recognized in an appropriate amount for beneficiaries outside of facilities ( Section 42a SGB ​​XII, Section 42 No. 4a SGB XII); in the case of accommodation in an inpatient facility, they include the amount of the average reasonable actual expenses for the warm rent of a one-person household ( Section 42 No. 4b SGB XII). For approval periods starting from March 1st to June 30th 2020, beneficiaries outside of institutions acc. Section 141 SGB XII in the version of the social protection package of March 27, 2020, in deviation from Section 42a (1) SGB XII, recognizes the actual expenses for accommodation and heating as appropriate for a period of six months.

If there are any further special needs, additional loans can be provided in individual cases ( Section 42 No. 5 SGB XII, Section 37 SGB ​​XII).

Differences in helping with living

Those who receive basic security are, for example, better off compared to receiving help with living expenses

  • Loss of the presumption of needs coverage in the household community according to § 39 sentence 1 SGB XII,
  • Loss of the option of granting a loan in the event of short-term need according to Section 38 SGB ​​XII,

but in many cases worse off with regard to the crediting of assets (see below Income and assets crediting , last paragraph).

As a rule, basic security is granted for twelve months ( Section 44 SGB ​​XII). In contrast to most of the other benefit grants of SGB XII, this is an administrative act with permanent effect that can only be repealed with the restrictions of Section 48 SGB ​​X. According to the previous case law of the Federal Administrative Court on the BSHG , social assistance does not represent a permanent benefit equivalent to a pension, the social assistance case needs to be regulated every day. This does not apply to the basic security, so here too there is a better position compared to the assistance for livelihood. In contrast to unemployment benefit II, for example, no further authorization applications have to be submitted; the authorization is automatically extended if the requirements are still met. Since Section 35 of SGB ​​XII (cash amount in institutions) does not apply in Chapter 4, beneficiaries in institutions are subject to the standard rate according to Section 28 (1) SGB XII i. d. Usually reduced to 27 percent.

Furthermore, in contrast to support for subsistence, there is no so-called “community of need” ( Section 19 (2) SGB XII). The spouse's income must be taken into account; however, if the latter is self-sufficient, only the needy part of the couple is the beneficiary and the other partner is not. This is then excluded from all discounts (regional aid for SGB-XII recipients).

Income and assets credit

Eligible persons are only entitled to benefits from the basic security in old age and in the event of reduced earning capacity if their livelihood cannot be secured from their income and / or assets . The use of income and assets is based on § 43 SGB ​​XII. According to this, the income and assets of the spouse or partner who are not separated as well as of the partner of a cohabiting or civil partnership-like community, which exceed their necessary livelihood, must also be taken into account. The concept of income is defined in § 82 to § 84 SGB ​​XII and is specified in more detail in the ordinance issued for the implementation of § 82 SGB XII . According to this, essentially all monthly income accruing in the required period is to be counted towards the basic security, unless the law exempts it from it.

Certain amounts must be deducted from income, especially taxes and social security contributions and other expenses related to the generation of the income (so-called "adjusted" income). Furthermore, an amount of 30% of the income from self-employed and non-self-employed work of the beneficiaries is to be deducted, but no more than 50% of the standard requirement level 1 according to the appendix to § 28 SGB XII. Since January 1, 2020, the standard requirement in level 1 has been 432 euros per month, i.e. the tax exemption is 216 euros. 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.

Art. 2 of the occupational pension Support Act , an amount of 100 euro to a maximum of 50% of the need for control level 1 has from 1 January 2018 also depose month from a supplementary pension of beneficiaries plus 30% of that amount over the income earned from a supplementary pension of beneficiaries, according of the annex to § 28. The beneficiary must have acquired the corresponding entitlements before reaching the standard retirement age on a voluntary basis, for example on the basis of a voluntary insurance according to § 7 SGB ​​VI ( § 82 para. 4 and 5 SGB XII new version). The aim of introducing an income tax allowance for additional old-age provision is to create an incentive to operate additional old-age provision and to send a signal to society as a whole that voluntary old-age provision is always worthwhile.

The exemption for additional old-age provision is added to the previous exemption for earned income. Thus, a beneficiary of the basic security in old age and in the case of reduced earning capacity can simultaneously claim the exemption according to paragraph 3 for his earned income and the exemption according to paragraph 4 for his additional old-age provision.

Conceptually no income or not to be considered as such:

  • other benefits according to SGB XII, for example blindness allowance , care allowance for care assistance,
  • the basic pension according to the Federal Pension Act ,
  • Pensions or benefits under the Federal Compensation Act ,
  • Income from reimbursements based on prepayments made by beneficiaries from the standard rate, for example credit from an annual bill for household electricity
  • a certain amount of child benefit for minors
  • Income that is not counted towards the basic security due to express provisions in other laws, for example parental allowance ( Section 10 BEEG ), benefits from long-term care insurance ( Section 13 (5) SGB XI),
  • Public law services that are provided for an expressly stated purpose that does not serve to secure a livelihood ( Section 83 (1) SGB XII),
  • Civil-legal compensation for pain and suffering ( Section 83 (2) SGB XII) and
  • Grants the independent welfare ( § 84 , para. 1 and 2 SGB XII)
  • Tax-free expense allowances , provided they do not exceed 200 euros per month. Section 82 (2) sentence 3 SGB XII makes it clear that the so-called honorary lump sum does not apply cumulatively to the deductible amounts for earned income, but that income from an honorary position is to be offset against the maximum amounts for earned income. If a beneficiary has therefore, for example, income of 100 euros from voluntary work, he can also add a deduction for earned income up to an amount of 50% of the standard requirement level 1 according to the appendix to § 28 minus the 100 euros already used from tax-exempt Claim activity.

The crediting of the beneficiaries' assets is based on Section 90 of Book XII of the Social Code and the related implementing regulation for Section 90 (2) No. 9 of Book XII of the Social Code. 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 5,000 euros. Before April 1, 2017, this value was 2,600 euros.

There is a big difference here to unemployment benefit II , in which assets of 150 euros per year plus 750 euros fixed (a total of between 3,850 euros for up to 20-year-olds and 10,500 euros for 65-year-olds) are not taken into account. The change from "Hartz IV" to basic security due to reaching retirement age or health-related reasons may therefore first require the assets to be used up until an entitlement to basic security arises. (See ALG II: Crediting of assets )

In the case of benefits whose approval period begins from March 1 to June 30, 2020, assets held by the applicant are exceptionally not taken into account for a period of six months, unless the assets are "substantial" (Section 141 SGB XII in the version of the social protection package of March 27, 2020).

Income and assets of other people

Income and assets of the spouse or life partner who are not separated as well as of the partner of a marriage-like or civil partnership-like community may only be taken into account insofar as they exceed their own necessary livelihood ( Section 43 (1) sentence 2 SGB XII).

Maintenance claims of the beneficiaries against their children and parents are not to be taken into account if the total annual income of the children or parents is below an annual income limit of 100,000 euros ( Section 43 (5) sentence 1 SGB XII). There is a legal presumption that the total annual income within the meaning of Section 16 SGB ​​IV ( sum of income within the meaning of the Income Tax Act, blurred: gross annual income) of those liable under civil law does not exceed 100,000 euros ( Section 43 (5) sentence 2 SGB XII) . Here, each dependent relative is considered individually. In this regulation, the main objective of the legislature is to be implemented, to counteract so-called hidden poverty in old age . The inhibition threshold of many older people in particular before applying for social assistance is to be lowered by largely avoiding recourse to dependent children.

As long as the legal presumption has not been refuted, there is a right to benefits. It is at the discretion of the social welfare agency to request more detailed information from the beneficiary, which allows conclusions to be drawn about the income situation of the dependent (for example, with the question of the professions of the children). The question of the presumed income of the children or parents above 100,000 euros is not permitted due to the legal presumption. If, however, there are indications that the EUR 100,000 limit is being exceeded, those liable for maintenance are obliged to disclose their income situation. If, for example, “ lawyer ”, “clinic manager” or “university professor” was specified as a child's occupation , this is usually an indication that entitles the holder to receive income information. If the presumption of income below the 100,000 euro limit for parents / children is disproved, there is no entitlement to basic security benefits ( Section 43 (5) sentence 6 SGB XII). This also applies if the beneficiary does not actually receive any maintenance payments.

If the beneficiary has a maintenance claim against his parents and children, this is not transferred to the service provider ( Section 94 (1) SGB XII). Therefore, there is no recourse by the social welfare agency to the person liable for maintenance under civil law. Maintenance payments actually paid, however, are income of the beneficiary that is offset against the need.

The law does not provide for the use of assets by the parents and children of the beneficiary. Income from property (interest, rental income, etc.) is excluded if it exceeds the EUR 100,000 limit.

Exclusion of the right to basic security

Anyone who has caused their need for social assistance willfully or through gross negligence in the past ten years has no right to basic security ( Section 41, Paragraph 4, SGB XII). This regulation is intended to prevent misuse of benefits, in particular by those people who have tried to prevent the use of their previously accumulated assets through donations . However, donations can also be reclaimed if the donor, after the donation has been made, is no longer able to provide for his own maintenance or is no longer in a position to meet his statutory maintenance obligations to his spouse, his former spouse or relatives ( § 528 BGB). A donation, on the other hand, cannot be reclaimed if the donor caused his need intentionally or through gross negligence , or if 10 years have passed since the donation ( Section 529 BGB).

If the basic security is rejected on the basis of Section 41 (4) SGB XII, you can still be entitled to assistance with subsistence ( Sections 27 ff. SGB ​​XII). In the case of assistance with livelihoods, however, full recourse to the relatives is possible, and heirs can also be used to reimburse the costs. Furthermore, according to Section 26 SGB ​​XII, benefits may be reduced to what is “essential for subsistence” - in practice, the standard rate is reduced by 20 to 30 percent. The social welfare institution can also claim reimbursement of costs in accordance with Section 103 SGB ​​XII.

Procedure and remedies

Basic security in old age and in the case of reduced earning capacity is generally granted for 12 months. Entitlement to benefits begins with an initial grant or with a favorable change in benefits on the first of the month in which the application was made. If there is a change that is less favorable for the recipient of the benefit, it will take effect on the first of the month following the change ( Section 44 (1) SGB XII).

Anyone who believes that their rights have been violated can appeal against the decisions of the authority ( §§ 78 ff. Social Court Act (SGG)). The objection must be submitted in writing or for recording within one month. If the objection has been rejected, legal action can be taken after the notice of objection has been issued. The courts of social justice are responsible for disputes in matters of social welfare ( Section 51 (1) No. 6a SGG).

Discussion and criticism

The benefits were originally financed in line with social assistance at the municipal level. This put pressure on cities, municipalities and beneficiaries, while places of residence of wealthy people were barely affected by payments. In order to relieve the municipalities, the financing has been taken over by the federal government since 2014 ( § 46a SGB ​​XII).

Basic security in old age and in the case of reduced earning capacity is sometimes also referred to as minimum income in old age , which is intended to protect against poverty. The current basic security does not do this, however. Due to the general lowering of the pension level, people in the low-wage sector will never be able to close the gap that has arisen through private provision. A broken employment history deviating from the so-called corner pensioner with a model income over many years can also be the cause.

For the federal election in 2013, various changes to the basic security were discussed and put up for election , including a real minimum pension as a base amount for everyone, or depending on contribution payments such as the SPD (40 years minimum) and the Greens (30 years). The party Die Linke promised the voters a solidarity minimum pension of 1050 euros as early as 2013, according to the Bundestag member Matthias W. Birkwald . A guaranteed pension like the Greens with 30 pension earnings points would correspond to a gross pension of 860 euros in eastern Germany and 914 euros in the west in 2017. In the 2013–2017 legislative period , the parliamentary groups of the Greens and the Left brought motions to the Bundestag without them being implemented within the grand coalition. Several small and very small parties in Germany are calling for similar downwardly secured pensions against old-age poverty .

A "basic pension" in the form of an increase in lower pension entitlements in the event of need was agreed in 2018 in the coalition agreement for the 19th parliamentary term of the Bundestag between the Union and the SPD; the exact implementation is (as of 2019) disputed between the coalition partners. A similar increase was planned in the 2013 coalition agreement, but was not implemented.

In November 2019, the grand coalition agreed on a basic pension as an increase in statutory pensions for insured persons with at least 35 contribution years who have earned less than 80% of the general average wage on average over their working life. Access to the basic pension is to be limited by an income test carried out by the pension insurance and the tax offices: Anyone with an income of more than 1250 euros (couples: 1950 euros) should not receive a basic pension.

See also

Web links

Legal norms

Others

Individual evidence

  1. ↑ a b BT-Drs. 14/5150, p. 48 (PDF file; 413 kB)
  2. ↑ Böckler Impuls 13/2012 article. Retrieved February 8, 2020 .
  3. ↑ Reinhard Jellen: "Recipients of state benefits are denigrated". In: www.heise.de. November 20, 2012, accessed February 8, 2020 .
  4. ↑ Archive link ( Memento from February 2, 2015 in the Internet Archive )
  5. ↑ https://www.destatis.de/DE/Publikationen/WirtschaftStatistik/Sozialdienstleistungen/ErresultSozialhilfe2011_032013.pdf?__blob=publicationFile
  6. ↑ https://www.destatis.de/DE/PresseService/Presse/Pressemitteilungen/2014/11/PD14_384_221.html
  7. ↑ ›FNA› Project Reports ›Project Report_2018-14 Basic security in old age and with reduced earning capacity: a statistical compendium, DRV series, volume 118, p. 263f
  8. ↑ Source: Federal Statistical Office ( Memento from September 25, 2008 in the Internet Archive )
  9. ↑ Federal Statistical Office, results of the social welfare statistics 2011, p. 210, Wiesbaden 2013
  10. ↑ Art. 7 No. 3 of the RV Age Limit Adjustment Act
  11. ↑ BSG, judgment of December 11, 2007 , Az. B 8 / 9b SO 21/06 R; Full text.
  12. ↑ BSG, judgment of March 23, 2010 , Az. B 8 SO 17/09
  13. ↑ [1] , BSG judgment of 29.09.2009 - B 8 SO 13/08 R
  14. ↑ Ordinance for the implementation of Section 82 of Book Twelve of the Social Code in the revised version published in the Federal Law Gazette Part III, structure number 2170-1-4, last amended by Article 8 of the law of December 22, 2015 (Federal Law Gazette I p. 2557) has been
  15. ↑ cf. Individual questions on income and assets in SGB II and SGB XII Scientific Services of the German Bundestag , as of October 25, 2016
  16. ↑ Act to strengthen company pension schemes and to amend other laws (company pension strengthening law) of August 17, 2017, Federal Law Gazette I p. 3214
  17. ↑ a b Draft of a law to strengthen company pension schemes and to amend other laws (company pension strengthening law) BT-Drs. 18/11286 of February 22, 2017, p. 48
  18. ↑ Draft of a law to strengthen company pension schemes and to amend other laws (company pension strengthening law) BT-Drs. 18/11286 of February 22, 2017, p. 49
  19. ↑ Ordinance on the implementation of Section 90, Paragraph 2, No. 9 of Book Twelve of the Social Code of February 11, 1988 (Federal Law Gazette I p. 150), which was last amended by Article 1 of the Ordinance of March 22, 2017 (Federal Law Gazette I, p. 519 ) has been changed
  20. ↑ Version § 1 SGB12§90Abs2DV old version until April 1st, 2017 (changed by Article 1 V. of March 22nd, 2017 Federal Law Gazette I p. 519). In: www.buzer.de. Retrieved February 8, 2020 .
  21. ^ BSG, April 25, 2013, AZ B 8 SO 21/11 R
  22. ^ The problem with the corner pensioner , Christian Brütt, social scientist at the Department of Social Work and Health at Kiel University of Applied Sciences, July 5, 2013, accessed on June 29, 2017.
  23. ↑ This is what the parties are planning - old-age poverty and the minimum pension. In: Focus Money , 2013, accessed June 27, 2017.
  24. ↑ Anna Lehmann: The opposition has ideas. Left and Greens bring proposals for minimum pensions to the Bundestag. However, they will not be implemented in this legislative period. In: taz.die tageszeitung , April 27, 2017, accessed on June 29, 2017.
  25. ↑ Sascha Venohr (Zeit Online): coalition agreement CDU CSU SPD 2013 final version. In: www.documentcloud.org. Retrieved February 8, 2020 .
  26. ^ Dietrich Creutzburg: Decision of the coalition: A new social package. In: FAZ. November 10, 2019, accessed November 10, 2019 .