Disabled Persons Law (Germany)
The severely handicapped law comprises all legal rules that affect the legal relationships of severely disabled people in Germany . The law for severely disabled people was moved from Part 2 to Part 3 of SGB IX on January 1, 2018 (rule of thumb: old + 83 = new). From Section 151 of Book IX of the Social Code onwards, it includes the “Special Regulations on Participation for Severely Disabled People”. The rules of the Federal Supply Act on the supply of persons who have suffered damage to health through military or military-like duties are not included in the law for severely disabled persons .
Severely disabled people are people with a physical, mental or emotional disability of at least 50 ( Section 2 (2) SGB IX ). You are under special legal protection in many respects and can make use of a number of compensation options.
Purpose of the severely disabled person's law
Self-determination and equal participation in life in society should be promoted. Furthermore, discrimination against the disabled is to be avoided or counteracted by the severely disabled person's law. According to the case law of the Federal Social Court, the law for severely disabled persons was conceived “solely for the protection” of severely disabled people.
Degree of disability
The presence of the disability and its extent are determined as the so-called degree of disability (GdB) at the request of the person concerned by the responsible authorities (including pension offices ). The GdB is measured - between 20 and 100 - in steps of ten (often incorrectly referred to as "percent").
- A disability exists if the physical function, mental ability or mental health of a person has a high probability of deviating more than six months from the state typical of their age and therefore the participation of this person in life in society is impaired ( Section 2 Para. 1 sentence 1 SGB IX). A disability is determined by the competent authority from a degree of disability of 20 ( Section 152 (1) sentence 6 SGB IX).
NEW Lt. Legal amendment through Art. 1 BTHG applies from 2018: "People with disabilities are people who have physical, emotional, mental or sensory impairments, which, in interaction with attitude- and environmental-related barriers to equal participation in society, are very likely to be longer than six Can prevent months. "
- A severe disability is determined by the competent authority from a degree of disability of 50. If there are several impairments, the GdB is determined by way of an overall view ( Section 152, Paragraph 3, Sentence 1, SGB IX). All functional impairments that have at least an individual GdB of 10 are taken into account ( Section 152 (1) sentence 4 SGB IX).
- Equal treatment with severely disabled persons by the Federal Employment Agency at the request of the person concerned should take place from a GdB of 30 if a job cannot otherwise be obtained or retained due to the disability ( Section 2 (3), Section 151 (2) SGB IX).
In addition, there are various markings that are issued in the case of a particular severity of handicap: "G" ( severely handicapped ), "aG" ( exceptionally handicapped ), "B" (on the front of the severely handicapped pass it says "The right to take an accompanying person with you is proven. ”),“ H ”( helpless ),“ BL ”( blind ),“ RF ”( reduction of the radio fee on application / social tariff at Deutsche Telekom ),“ GL ”( deaf ).
The classification has been based on the principles of the Health Care Ordinance since 2009 .
War damage is also tied into the same system; A claim to a pension according to the Federal Supply Act (war disabled person's pension ) only exists, however, for the proportionate damage caused by the war.
application
The presence of a handicap and the degree of the handicap are only determined by the authorities responsible under state law (usually called the pension office) upon application by the handicapped person.
Decision from the competent authority
The competent authority notifies the classification in a notification. This assessment notice can be contested with an objection and - if this does not lead to the desired success - with a procedure before the social court.
This notification is only intended for the person concerned and not as proof of the disability to authorities, employers, etc., because among other things the medical diagnosis is listed in it: The accompanying information sheet expressly states that nobody has the right to request insight into this notification . However, it happens again and again that personnel administrations require the submission of the notification of assessment; Severely disabled people are not obliged to do so according to case law.
Handicapped ID card
The competent authorities also issue the severely handicapped ID, which is intended to prove the disability to authorities, employers, etc. It is usually limited to five years. The time limit for severely handicapped ID cards differs from state to state. In Hesse, for example, the severely handicapped ID cards are issued for 15 years or up to the age of 90 and then extended each time, if no ex officio re-examination is planned. However, the practice in the Hessian pension administration is that the ID cards are issued for an unlimited period if possible. Up to the age of 9, ID cards for the severely disabled are issued without a photo; from the age of 10, ID cards with a photo must be issued.
Equality with severely disabled people
Persons with a degree of disability of less than 50, but at least 30, can be treated as a severely disabled person on request if they cannot obtain or keep a suitable job as a result of their disability without the same treatment. Equal treatment takes place at the request of the disabled person through the employment agency responsible for their place of residence . For disabled people of equal status, the same regulations of the severely disabled person's law apply as for severely disabled people, with the exception of the right to additional vacation ( Section 208 SGB IX) and the right to free transport in public transport. Disabled people of equal status are not entitled to the old-age pension for severely disabled people .
In individual states such as Baden-Württemberg (§ 23 AzUVO) and Hesse (§ 13 HUrlVO) there is also additional leave of up to a maximum of three days according to state holiday law for certain disabled or equivalent employees with a GdB under 50.
Legal consequences of a severe disability
Severely disabled people enjoy special protection and support in working life. They are protected and supported by the following regulations, among others:
Special protection against dismissal
Handicapped and disabled people have equal status in employment a special protection against dismissal ( §§ 168-175 SGB IX). You may only be terminated properly or extraordinarily if the integration office has given its prior consent. A termination given without consent is ineffective.
The prerequisite for special protection against dismissal is that the employment relationship has lasted for more than six months at the time the notice of termination is received . The notice period is then at least four weeks ( § 169 SGB IX). On the other hand, a certain size of the company is not required (in contrast to general protection against dismissal).
The severe disability or equality must have already been determined by the competent authority upon receipt of the notice of termination or the corresponding application for recognition or equality must have been submitted at least three weeks before receipt of the notice of termination ( Section 173 (3) SGB IX). The special protection against dismissal also always exists in the case of an obvious severe disability.
The ineffectiveness also occurs if the employer was unaware of the severe disability or equality, provided that the terminated person informs the employer of his or her disabled status or the application within a period of three weeks after the notice of termination was received.
The termination is deemed to be legally effective from the start if the severely disabled employee has not brought an action for protection against dismissal at the labor court within three weeks of receipt of the termination ( Section 7 in conjunction with Section 4 KSchG). However, the period does not start until the decision of the integration office has been announced to the employee ( Section 4 sentence 4 KSchG). If the employer has not requested or received consent, the deadline does not run.
Additional leave
Severely disabled people (not equal to them) are entitled to paid additional vacation of one working week, usually five days, in a calendar year according to Section 208 of Book IX of the Social Code . If the severely disabled status has not been established for the entire calendar year, the severely disabled person is entitled to one twelfth of the additional leave for each full month of the disabled status in the employment relationship. Fractions of vacation days that amount to at least half a day must be rounded up to full vacation days.
Special type of pension possible
Severely disabled people can claim the old-age pension for severely disabled people in accordance with Section 37 SGB VI if they are recognized as severely disabled at the start of the pension, have completed the waiting period of 35 years and have reached the relevant age limit. For the recognition of a severe disability, a degree of disability of at least 50 must be present; equality is not sufficient.
The age limit is currently 63 years and still applies to insured persons born before January 1, 1952. For insured persons born in 1952, the age limit increases to 63 years and one month; it rises gradually for the other years until it has reached 65 for those born in 1964 or later.
It is possible to claim the old-age pension for severely disabled people up to three years before the relevant age limit. However, the early drawdown leads to the pension amount being reduced by up to 10.8%.
For certain insured persons, there are various protection of trust regulations in Section 236a of Book VI of the Social Code, which mean that discounts are no longer applicable for early retirement. This applies to insured persons who were born before January 1, 1952 and who were recognized as severely disabled on November 16, 2000.
Severely disabled civil servants within the meaning of Section 2 (2) of SGB IX (GdB ≥ 50) can be retired ( pension ) on application after they have reached the age of 62 , in accordance with Section 52 (1) BBG ( Federal Civil Service Act ) . For civil servants born before January 1, 1952, this is possible from the age of 60 ( Section 52 (2) BBG). Civil servants born between 1952 and 1963 have a gradually increasing retirement age. Different regulations may exist in the state civil servant laws of the individual federal states . The Bavarian Civil Service Act (BayBG Art. 64, Paragraph 1) allows retirement from the age of 60 (provisionally) without a year of birth regulation.
Compensation for tax disadvantages
Depending on the degree of disability, tax breaks (e.g. lump sums (from a GdB of 30)), household allowance, vehicle tax reduction (determination of the code "G") or vehicle tax exemption (determination of the code "aG" or "H") in the case of certain severe disabilities or identified features).
Employer's obligation to employ
Private and public employers with at least 20 jobs are obliged to employ severely disabled people in at least five percent of the jobs. Severely disabled women must be given special consideration. As long as the employer does not employ the prescribed number of severely disabled people, he has to pay a monthly equalization fee for every vacant compulsory job. This tax is intended to finance other jobs for severely disabled people. An individual claim to the conclusion of an employment contract, i.e. a claim to employment, is not provided for by law (Section 15 (6) AGG), but expressly excluded according to the AGG, "unless such a claim arises from another legal reason" .
Right to disability-friendly employment
In contrast to employment, severely disabled people and disabled people of equal status have an actionable claim to employment "in which they can utilize and develop their skills and knowledge as fully as possible" and, in addition, claims to preferential consideration in in-house training measures and other measures that promote their professional integration. This claim according to Section 164 of Book IX of the Social Code only does not apply if the measure is unreasonable for the employer or is associated with disproportionate expenses. This statutory right forces an employer, as far as this is contractually possible, to transfer a non-disabled employee to the job of a severely disabled employee by way of a job swap, and vice versa, if the severely disabled employee can be better integrated in the other job, to keep his workforce or regain it.
Non-discrimination
Due to the European Anti-Discrimination Directive 2000/78 / EC , from July 1, 2001, Section 81 (2) SGB IX a. F. and from August 18, 2006 with Section 81 (2) sentence 2 SGB IX new version in conjunction with the General Equal Treatment Act (AGG) created a ban on discrimination for severely disabled people (since 2018 in Section 164), in the event of discrimination of a severely disabled person, in particular when hiring, advancing their career or giving notice, provides for a claim for damages and a considerable relief of evidence in favor of the severely disabled employee (reversal of the burden of proof to the detriment of the employer if facts are made credible which suggest a disadvantage of the severely disabled person). At the same time, however, a right to recruitment is excluded and mere compensation in money is provided. In the case of merely “formal” discrimination, i.e. if the severely disabled applicant would not have been hired if the selection was non-discriminatory, the claim for damages is limited to three months' earnings.
Right to ask questions when hiring - disclosure of a severe disability
It used to be controversial whether a recognized severe disability should be disclosed unsolicited when hired or whether it should be stated on request in a personnel sheet or during job interviews. According to the overwhelming opinion in the more recent specialist literature as well as the more recent higher court case law, however, since the new legal regulation of the anti-discrimination law through Section 164 (2) sentence 2 SGB IX in conjunction with the AGG, the "activity-neutral" question of a severe disability (contrary to the previous case law of the Federal Labor Court on the old legal situation before July 1, 2001) is inadmissible or discriminatory and may therefore, if asked (similar to the question about an existing pregnancy ), be denied without legal consequences even if the severely disabled status has been officially established. However, specific job-related questions that relate to the health suitability of a job applicant for a specific position and the special health requirements associated therewith remain permissible. However, since an employer would then no longer find out in future whether and how many severely disabled or disabled people of equal status he employs and would therefore remain obliged (with an annual average of at least 20 jobs per month) to pay the statutory equalization levy, although he actually fulfills the statutory employment quota Occasionally in the specialist literature an obligation of the employees assumed to disclose the fact of their recognized severe disability at least after the expiry of the six-month waiting period after which the special protection against dismissal takes effect.
Study with a disability
At universities, people with disabilities receive special attention, such as the right to extended examinations and other compensation for disadvantages. According to Section 16 Clause 4 HRG, the examination regulations must take into account the special needs of disabled students in order to maintain equal opportunities. Currently, 8% of students are restricted due to a health problem. Of these, 4% are moderately to severely impaired.
Reasonable Precautions: The Halle Administrative Court recently worked out the detailed prerequisite for the right of severely disabled students to reasonable accommodation with its judgment of November 20, 2018, 6 A 139 / 17HAL.
Independent living - care in the home you are used to
SGB in 2009: Great strides for the right to care for the severely disabled in their homes with adequate financial support. In the IHP3 manual for individual aid planning of the Rhineland Regional Council, a cross-agency personal budget for severely disabled people was defined. This guarantees specific help planning for at home - and not just in the home. The IHP3 is based on the guidelines of the updated SGB from 2009. In May 2001, the WHO passed the right to independent life for severely disabled people (Art. 19 UN-CRPD). After ratification (2008) in 2009, it found its way into the German Social Security Code in European and German legislation.
Representative for severely disabled persons / confidant
Severely disabled employees elect a representative body for severely disabled employees ( Section 177 of Book IX of the Social Code), which, in addition to the works council or staff council, has to represent the interests of these employees in particular.
Integration office
The Integration Office (office for securing the integration of severely disabled people in working life)
- promotes and ensures the professional integration of severely disabled people and people of equal status in the general labor market,
- advises severely disabled people and people of equal status and their employers on creating and securing jobs,
- grants financial benefits to severely disabled people and employers with equal status,
- decides on applications for consent to dismissal taking into account the interests of the employer and employee.
literature
- Dirk H. Dau , Franz Josef Düwell , Jacob Joussen (eds.): Social Code IX. Rehabilitation and participation of people with disabilities. SGB IX, BTHG, SchwbVWO, BGG . Teaching and practice commentary. 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-3375-0 (2016 pp.).
- Werner Feldes, Silvia Helbig, Bettina Krämer, Rainer Rehwald, Bernd Westermann: Severely handicapped rights. Basic commentary on SGB IX with election regulations . 14th edition. Bund-Verlag, Frankfurt am Main 2018, ISBN 978-3-7663-6723-5 .
- Werner Feldes, Wolfhard Kohte , Eckart Stevens-Bartol (eds.): SGB IX. Social Code IX. Rehabilitation and participation of disabled people. Commentary for practice. 4th edition. Bund-Verlag, Frankfurt am Main 2018, ISBN 978-3-7663-6719-8 .
- Werner Feldes, Jürgen Schmidt, Hans-Günther Ritz, Wolfhard Kohte, Eckart Stevens-Bartol (eds.): Severely handicapped rights online. Specialized module for the representation of severely disabled employees. With commentary for practice on SGB IX. Bund-Verlag, ISBN 978-3-7663-8176-7 .
- Bernhard Knittel: Rehabilitation and participation of people with disabilities - comment . Loose-leaf work. Luchterhand Verlag, 12th edition 2019. ISBN 978-3-472-09562-0 .
- Federal working group of integration offices and main welfare offices (ed.): ABC Fachlexikon. Employment of severely disabled people . 6th edition. Universum Verlag, Wiesbaden 2018, ISBN 978-3-89869-516-9 (512 pp., Lwl.org [PDF; 3.8 MB ; accessed on June 7, 2019]).
Web links
- Sections 151 to 237 Ninth Book of the Social Code (SGB IX) Part 3 Special regulations for the participation of severely disabled people (severely disabled person law)
- Judgments on the basis of the law on severely disabled persons at REHADAT
- Integration offices in Germany : tasks, information, contacts
Individual evidence
- ↑ Synopsis: SGB IX 2018 ⇔ SGB IX old version
- ↑ BIH-Fachlexikon 2018, term: disability
- ↑ BA Equal Opportunities Decree 12/2017
- ↑ See Labor Court Bocholt, decision of April 29, 1993, 1 Ca 225/93
- ↑ ZBFS Inclusion Office Bavaria
- ↑ See also the judgment of the Federal Labor Court of March 1, 2007 - 2 AZR 217/06
- ↑ BIH Federal Association of Integration Offices and Main Welfare Offices (ed.): ABC Fachlexikon. Employment of severely disabled people. 6th revised edition, Cologne 2018.
- ↑ VdK 2018: Compensation for disadvantages during studies
- ↑ Accessibility as a goal of the universities. Retrieved November 7, 2019 .
- ↑ Opinion: Reasonable Provision 2018
- ↑ BIH-Fachlexikon 2018, term: UN-BRK
