Social welfare (Germany)
The social welfare in Germany , legally regulated in the Twelfth Social Code Book (SGB XII, social welfare ), is a public benefit in the system of social security with the function of basic security . It is intended to provide those in need of assistance with those material prerequisites that are essential for their physical existence and for a minimum level of participation in social, cultural and political life ( socio-cultural subsistence level ) and thus the basic right to guarantee a decent subsistence level from Paragraph 1 of the Basic Law ( GG) in connection with the welfare state principle of 20.1 GG. Social welfare law specifies this minimum standard in substantive law . It justifies enforceable legal claims of needy persons to benefits ( SGB I ). The guiding principle of humane existence is put in front of the law in sentence 1 SGB XII:
"The task of social assistance is to enable those entitled to benefits to lead a life that corresponds to human dignity."
Social assistance comes into consideration as basic security in old age and in the event of reduced earning capacity for people who are unable to work due to old age or due to total reduced earning capacity. If non-employable beneficiaries live in a benefit community with an employable beneficiary who can claim unemployment benefit II (Alg II) himself, they do not receive social assistance, but social benefit according to SGB II , if they are not entitled to basic security in old age and in the case of reduced earning capacity. For a further small group of people who are neither entitled to Alg II nor basic security in old age or with reduced earning capacity, social assistance can be considered as a means of subsistence . Other social assistance benefits include health assistance , integration assistance for disabled people , care assistance , assistance in overcoming particular social difficulties and assistance in other life situations .
Viewed historically, social assistance is the oldest form of social benefit and at the same time the one that has undergone the greatest changes in the course of history. It has its origins in poor and sick welfare , which was organized in medieval cities by the church , the cities themselves or by the craft organizations. In the course of the industrial revolution , the rapid growth of cities that went with it, the emergence of previously unknown mass poverty and the increasingly revolutionary proletariat , the tasks of welfare grew so much that legal regulations were created (e.g. the Prussian Poor Care Act of 1842). This was very quickly combined with the intention of social control, because it was recognized that the dissatisfaction of the uprooted poor contained “political explosives”.
Otto von Bismarck's endeavors to introduce the social security systems that have become classic should also be seen as having the purpose of “taking the wind out of the sails” of the labor movement by fulfilling its minimum requirements.
The German Empire , newly founded in 1871, left these tasks to the individual countries. An empire-wide regulation came into being only at the time of the Weimar Republic in the form of the Reichsfürsorgepflichtverordnung of 1924 and the "Reichsprinciple on the requirements, type and measure of public welfare ", also from 1924. However, this regulation did not give those in need of assistance an actionable legal claim against the welfare institution.
The Federal Administrative Court ruled on June 24, 1954 that the basic rights to the protection of human dignity ( GG), the free development of personality and physical integrity ( GG) as well as the welfare state requirement GG form a legally enforceable legal claim of the citizen on social welfare by the state.
As a result, a uniform social welfare law was created in the Federal Republic of Germany in 1961 with the Federal Social Welfare Act . However, only the general rules have been standardized; the amount of social assistance actually paid and many details of the granting of assistance were determined by the federal states . The federal states coordinated their policy in this regard by generally following the recommendations of the German Association for Public and Private Welfare, which is supported by the social welfare authorities and social associations. V. followed.
The Federal Social Welfare Act had been a special part of the Social Security Code since 1976 , but it was not until 2005 that the law was classified as part of the Hartz Concept ("Hartz IV") in the Social Code as Book Twelve of the Social Code (SGB XII); At the same time, the basic security for old age and reduced earning capacity introduced two years earlier became part of social assistance. The new unemployment benefit II has also been granted since 2005 to ensure the subsistence level for the working population, so that social assistance is only paid to people who are not available to the general labor market because they can work less than three hours a day. This does not affect the assistance in special life situations, which is still available to all entitled persons.
The social welfare law has been regulated since January 1st, 2005 in Book Twelve of the Social Code (SGB XII). From 1961 to 2004 social welfare law was standardized in the Federal Social Welfare Act (BSHG). The procedural law is in Book 10 of the Social Code (SGB X). Since the reform of social welfare law in the course of Agenda 2010 , a strict distinction has been made between those who are able to work and those in need who are not able to work. In particular, unemployment benefit II is considered to be a wage replacement benefit for those able to work, not a social benefit within the meaning of SGB XII. The integration assistance as a benefit for people with disabilities is to be taken by 2020 from the SGB XII.
According to legislative competence for social welfare law lies with the federal government. The federal states are responsible for implementing social assistance as a separate matter ( GG).GG i. V. m. No. 7 GG, the
The principle of social welfare is regulated inBook XII of the Social Code: "The task of social welfare is to enable those entitled to benefits to lead a life that corresponds to human dignity."
Of elementary importance is the subordination of social assistance according to social welfare office checks in all cases whether there are priority claims, for example from other service providers, such as health insurance , pension insurance or youth welfare or persons liable for maintenance under civil law . Also, housing benefit , child benefit and child maintenance payments should take priority over social assistance.SGB XII: Social assistance is fundamentally dependent on one's own income and assets and subordinate to all other benefits and claims. That is why the
The supra - local agency is determined by the state and is different in each federal state (e.g. the regional associations in North Rhine-Westphalia , the municipal association for youth and social affairs in Baden-Württemberg or the state welfare association of Hesse ). Within the framework of subsidiarity according to Book XII of the Social Code, the social welfare agencies can also delegate certain tasks to voluntary welfare services , including in particular the churches with their Caritas and Diakonie institutions .
According toBook XII of the Social Code, social assistance benefits are generally paid according to the specifics of the individual case. The person concerned has a say in this, but only if these wishes are not associated with disproportionate additional costs. In addition, outpatient social welfare benefits in accordance with Book XII of the Social Code have priority over inpatient and partial inpatient services; in addition, when choosing the inpatient facility, the person concerned is limited to those facilities with which agreements exist in accordance with Book XII of the Social Code.
According toSGB XII, the benefits consist of cash, goods and services; cash benefits usually have priority unless the law provides otherwise. The services include advice from the authority in accordance with Social Code Book XII. Social assistance benefits are fundamentally non-attachable according to Book XII of the Social Code.
Social assistance (with the exception of basic income support) begins as soon as the social assistance provider becomes aware that the requirements for the benefit are met ( ex officio in accordance with SGB X ( official investigation principle ) if there are indications of a need.Social Code Book 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. After becoming known, the social welfare institution must determine the facts
The eligibility requirements for social assistance are regulated in using Community ).SGB XII. In the calculation of the claim next to the applicant also income and assets of the spouse as well as unmarried minors income and wealth are the parents to take into account (
Foreigners and their relatives are not paid social assistance benefits according to Asylum Seekers Benefits Act , if they have only immigrated to receive social assistance or if they have a right of residence for the purpose of looking for work. However, foreigners can still be granted social assistance within the framework of a discretionary decision; if the subsistence level is not secured and it cannot be secured in any other way, the discretion is regularly reduced to zero.SGB XII if they are eligible under the
According toBook XII of the Social Code, social assistance payments to Germans abroad are only possible in an exceptional emergency if a return to Germany is not possible, for example because of the care and upbringing of children who have no right to leave the country or because of their own need for care .
SGB XII standardizes a so-called emergency aid regulation, through which service providers can demand reimbursement of costs from the social welfare agency for certain emergency services. In practice, this rule comes into play above all when a person who is not insured has to be treated as an inpatient in a hospital and cannot bear the costs of the treatment himself. It is intended to prevent reimbursement from failing simply because no application has been made; There is therefore no entitlement if an application for benefits has already been submitted to the social welfare institution. The reasonable period within which an emergency aid claim can be asserted is usually one month after the end of the emergency.
Particularities for EU citizens
In future, EU citizens in Germany will only receive social assistance in accordance with a draft law of the federal government if they have acquired entitlements through previous contributions to the German social security system. Otherwise EU citizens in Germany can only apply for social assistance after five years if they have not worked. The draft law was submitted to the Bundestag in October 2016. Germany can refuse Hartz IV / social assistance to EU citizens if they only entered the country to receive social assistance. This was confirmed by the European Court of Justice on November 11, 2014.
Social assistance benefits
The social assistance benefits are listed inBook XII of the Social Code. These are:
Help with living
Subsistence assistance is provided to cover the socio-cultural subsistence level to people who cannot secure it from their own income and assets. The level of benefits is based on the specified standard requirement levels .
The support for subsistence is in competition with unemployment benefit II . According to SGB XII, support for living cannot be received by anyone who is able to work and is basically entitled to unemployment benefit II. Basically, a person is entitled to unemployment benefit II if none of the exclusion reasons of SGB II apply (e.g. inpatient accommodation). It should be noted that according to SGB XII , trainees are excluded from subsistence benefits, and thus also from subsistence assistance. Anyone who is unable to work but lives in a community of needs with an employable person receives social benefits from the responsible job center if necessary .
Basic security in old age and in the case of reduced earning capacity also takes precedence over assistance with subsistence, so that in practice this only comes into play if there is no entitlement to unemployment benefit II or to basic security.
Basic security in old age and reduced earning capacity
Basic security in old age and with reduced earning capacity is a special benefit of social assistance. It is only paid on application for people who have reached the age of 18 and have either reached the statutory retirement age or are permanently and fully disabled within the meaning of the pension insurance ( SGB XII). An actual pension entitlement is not a prerequisite for basic security.
In contrast to the other social assistance benefits, maintenance claims against parents and children are only taken into account for basic security if their total annual income exceeds 100,000 euros. Only when there are sufficient indications that this limit has been exceeded are the children or parents of the beneficiaries obliged to provide information about their income situation to the responsible institution ( (5) SGB XII).
Health aids are intended to enable people who are not insured to have access to health care services.
Since nowadays recipients of current social welfare benefits can register with a responsible health insurance company according to Social Code Book V and are treated there like regular members of the statutory health insurance and are compulsory for all other groups of people, health assistance is only considered in very rare exceptional cases . However, the social assistance provider has to reimburse the health insurance company for the actual treatment costs.
Integration assistance for disabled people
Integration assistance is intended to support people who are significantly restricted in their participation due to a disability and to integrate them into society. The integration assistance is usually provided as a contribution in kind, but it can also be provided in the form of a personal budget .
Integration assistance includes both support with schooling and training as well as participation in society for adults with a disability. For many of these benefits, the child's parents can only be financially involved to a limited extent according toBook XII of the Social Code.
Help with care
Care help is a social welfare service that supports people in need of care in their daily lives. This benefit can be provided both as a benefit in kind and as a cash benefit (in the form of care allowance ).
Since the introduction of long-term care insurance , care assistance has come into consideration in particular if there is no degree of care despite the need for care , or the long-term care insurance benefits have been exhausted or there is no care insurance.
Help to overcome particular social difficulties
Help to overcome special social difficulties is provided for special groups of people who are otherwise excluded from the social system and need special support, such as the homeless and former prisoners. The benefit is provided regardless of the income and assets of the person concerned.
The service can be provided in various forms, primarily as a service in the form of advice and support, but also, for example, as a cash benefit to ensure the subsistence level in a homeless shelter.
Help in other situations
The help in other life situations includes some other social assistance benefits:
- Help to keep the household going ( SGB XII), also called large household help , is similar to household help within the framework of statutory health insurance.
- Elderly assistance ( Social Code Book XII) includes advisory services for older people.
- Assistance for the blind ( SGB XII) is a social benefit for blind people and is provided as a supplement to the blind benefit of the federal states if this is too low.
- Help in other life situations ( SGB XII) is a catch-all standard for facts that are not covered by the remaining social assistance regulations.
- Assumption of funeral costs ( SGB XII) for people who cannot be expected to bear these costs.
Income offsetting in social welfare follows the regulations of ordinance .SGB XII, according to which all income in money or monetary value is included in income. In the case of benefits in kind, the amount of income is determined by the benefits in kind
Do not count as income
- Benefits according to SGB XII itself
- the basic pension according to the Federal Pension Act and other laws that refer to its legal provisions
- Pensions or benefits under the Federal Compensation Act for damage to life, body or health up to the amount of the comparable basic pension under the Federal Pension Act
- Income from reimbursements based on prepayments made by the service recipient from the standard rate, i.e. in particular repayments of electricity prepayments
- Services that are provided on the basis of public law regulations for an expressly stated purpose that is not already met by social assistance ( (1) SGB XII)
- Civil-legal compensation for pain and suffering (Section 83 (2) SGB XII)
- Free welfare payments if they do not influence the situation of the beneficiary so favorably that the granting of social assistance would also be unjustified ( (1) SGB XII)
- Benefits that someone else has made without having a legal or moral obligation to do so, if this would mean particular hardship (Section 84 (2) SGB XII)
The unemployment benefit II of the employable spouse does not count as income either.
According to Section 82 (2) SGB XII, certain amounts are to be deducted from income. Which includes:
- taxes paid on income,
- Compulsory social security contributions
- Insurance contributions, if they are required by law or appropriate, as well as contributions to the Riester pension up to the amount of the minimum own amount according to EStG. Household contents insurance and personal liability insurance are generally considered appropriate .
- the necessary expenses associated with the generation of income (income-related expenses ),
- the employment subsidy according to SGB IX
Details are regulated in the ordinance for the implementation of Section 82 of Book Twelve of the Social Code.
In order to create an incentive for self-employment, 30% of the (gross) income from self-employed and non-self-employed work is deductible, but only up to half of the applicable basic standard rate. In order to create incentives for workshop employment, special rules apply to employees of workshops for disabled people when calculating the deduction amount.
One-off income (e.g. inheritance , donation , lottery winnings) is no longer viewed as income in the month in which the payment is received and as assets thereafter, as a result of a change made to Section 82 in 2016; instead, it is distributed over 6 months, which tends to lead to that less of the total amount will benefit from the protection as protective assets.
The benefits of the fifth to ninth chapters of SGB XII (health assistance, integration assistance (until the end of 2019), care assistance, assistance in overcoming particular social difficulties, assistance in other situations) are privileged with regard to income offsetting, because income is usually only used above the so-called income limit, which is calculated individually (SGB XII).
- Example: If the income limit in individual cases is 1000 euros, the beneficiary is usually only credited with the part of his income that exceeds 1000 euros.
The income limit is made up of the sum of three individual amounts (example valid for the period from January 1, 2019/2020):
- a basic amount equal to twice the basic standard rate: 2 × 424 = 848 euros (2020: 2 × 432 = 864 euros, from 2021 probably 2x 439 = 878 euros)
- the reasonable cost of accommodation; (According to a decision by the BSG in 2013, heating costs were also included, but this was abolished again in 2016 with the amendment to § 82),
- a family allowance in the amount of 70% of the basic standard rate, rounded up to a full euro, for the spouse or life partner not living separately (as well as other persons according to (1) No. 3 SGB XII): 297 euros (2020: 303 euros, 2021 estimated € 308).
If the adjusted income exceeds the income limit, an appropriate amount of income can be expected (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 special cases, the use of income below the income limit can also be required ( Social Code Book XII).
Before social assistance is granted, you must use your own usable assets (SGB XII). If assets are not immediately realizable, there is the possibility of granting a loan. ( SGB XII)
Some assets remain exempt. This includes in particular
- Assets from public funds that are used to secure a livelihood or to set up a household
- State-sponsored old-age provision (e.g. Riester pension contracts in the savings phase)
- Assets that are used to procure or maintain property for people with disabilities or those in need of care
- adequate household items
- Items that are necessary for vocational training or employment
- Family and heirlooms (which would be particularly hard to dispose of)
- Objects for the satisfaction of artistic and scientific needs (as long as they do not represent a luxury )
- a suitable self-inhabited house plot.
Small amounts of cash are also exempt from credit according tothe Ordinance Implementing Section 90 Paragraph 2 No. 9 of Book Twelve of the Social Security Code . For the head of the household or single person there is an asset allowance of 5,000 euros. For every child living in the household, the amount increases by 500 euros.
According to(3) SGB XII, the realization of assets cannot be demanded if this would represent hardship for the person concerned. This can be the case with so-called mixed benefit communities, where one spouse receives social assistance (in the form of basic security in old age and reduced earning capacity) and the other receives unemployment benefit II. If the employable spouse would have to dispose of assets that, according to the provisions of SGB II, are considered to be safe assets, this represents a hardship that precludes the utilization of the assets.
Hardship can also exist in those cases in which saved income, which is not offset under the income regulations, would have to be used, for example in the case of the subsequent payment of a war invalidity pension, in the case of saved childcare allowance within the approval period or also in the case of blindness allowance.
The use of adequate funeral provisions is also a particular hardship.
Transfer of Claims
Another consequence of the orientation towards the neediness of the beneficiary (§ 9 SGB XII) and the subordination of social assistance (§ 2 SGB XII) is that the social assistance providers investigate whether an applicant may have claims from contracts (e.g. reclaim from gifts (§ 93 SGB XII) or unpaid wages (§ 115 SGB XII)) as well as claims for damages (§ 116 SGB XII) which he himself does not assert or does not want to assert; this comes e.g. This often happens, for example, when social assistance for children is claimed and a single applicant parent does not live together with the other parent and is no longer connected. In the case of Book XII of the Social Code, the law gives the social welfare provider the power to transfer these claims to which the beneficiary is entitled to himself (to acquire them, so to speak) and to assert them in his own name. The further claims are transferred to the social welfare institution by virtue of the law, so-called legal session, who can now assert them.
Statutory maintenance claims of the beneficiary are transferred to the social assistance provider by virtue of the law ( SGB XII). The social welfare institution can sue for maintenance in its own name. If a beneficiary wants to assert such a claim in court against the person obliged to pay maintenance, he must have it transferred back to him by the service provider ( (5) SGB XII). Here procedural pitfalls lurk with regard to the active legitimation of the beneficiary. In the case of disabled and dependent children of age, the parent's obligation to provide maintenance is severely restricted; only low lump sums have to be paid here. These are automatically adjusted according to the development of child benefit. ( (2) SGB XII) The maintenance claim does not take into account 56% of the accommodation costs as a replacement for the housing allowance that the beneficiary did not apply for because of the priority of social assistance. This also applies if the beneficiary lives in a home.
The transfer of maintenance claims is excluded:
- if the maintenance claim is met through ongoing payment
- if the person liable for maintenance lives in a joint venture with the beneficiary
- if the person liable for maintenance is related to the beneficiary in the second degree or higher (grandparents, grandchildren, great-grandparents and great-grandchildren)
- for benefits according to Chapter 4 ( basic security in old age and reduced earning capacity )
- if the beneficiary is pregnant or is caring for their biological child who is up to six years old
- if the person liable for maintenance is in need of assistance in terms of social assistance or would be through the payment of maintenance
- if the transition meant undue hardship. An undue hardship is z. This is the case, for example, if the social welfare provider is responsible for the need for assistance of the beneficiary, for example if he has refused to accept the costs of voluntary health insurance and the latter is therefore not entitled to care allowance from the long-term care insurance.
In the "normal case", social assistance providers are social assistance, assistance for subsistence, the rural districts , independent cities and special status cities . For certain people in special circumstances (. Eg disabled, which are permanently housed in dormitories) are depending on the state special powers of authorities or institutions with a larger spatial area of responsibility (for example, in North Rhine-Westphalia , the regional associations ). The supra-local providers of social assistance are determined by the federal states based on administrative sovereignty ( (3) SGB XII).
The districts , urban districts and cities with special status are not only responsible for administration, but also for financing social assistance. Therefore, the municipalities have an interest in receiving social welfare recipients as far as possible in other support systems and not ending up in or remaining in the “last social network”, social welfare.
Recalculation with the introduction of unemployment benefit II
With the recalculation before the introduction of unemployment benefit II , changes were made to the method of calculating the standard rate, which have an effect on the basic security according to SGB XII and the basic security for job seekers according to SGB II , i.e. unemployment benefit II. An article in the weekly newspaper Die Zeit explained how questionable these changes were. According to the previous method of calculation, the standard rate of social assistance would have been 448 euros, according to the new procedure the now well-known 345 euros (which initially applied on January 1, 2005). At 103 euros, that makes a difference of almost exactly 25%. It is found that switching from the average income of all households from low-wage earners to single-person households as a basis for calculation leads to a considerable reduction in the standard rate. In addition, the arguments that low-wage earners are expected to spend on fur coats and bespoke suits, as well as pleasure craft and gliders, seem downright strange. Overall, there is talk of a clandestine reduction in social assistance, which should have been discussed publicly . It is questioned whether the basic security could still fulfill its constitutional mandate to ensure a decent life.
According to a study by the WZB ( Berlin Science Center for Social Research ), the continuously increasing unemployment since the mid-1970s, as a result of technological change , led to a series of political abuse debates with the aim of reducing benefits or increasing the reasonableness or tightening of sanctions. The impression is always given that it is a mass phenomenon, although there are no valid figures.
However, the available figures and data indicate that the “abuse” is in any case not viewed as a mass phenomenon. For example, as a result of the renewed tightening of sanctions in the course of the SGB II Further Development Act (BT-Drucksache 16/1410), savings of around 20 million euros are expected annually, i.e. an amount that is more than marginal in relation to the total expenditure .
The case of “ Florida-Rolf ”, which was wrongly portrayed as “abuse” in media reports, wrote legal history: “The Federal Government through the responsible Minister for Health and Social Security” saw itself prompted “in an unprecedented lightning strike in the Bundestag within a week Introduce a bill to amend Section 119 BSGH. "
The length of time remaining in receipt of social assistance is not as long as is often assumed: "Of 100 people entering social assistance, 59 left after one year, 78 after three years and 83 after five years"
Exact numbers cannot be determined. This is due on the one hand to the large number of types of benefits as well as inconsistent reporting procedures for services that have been wrongly provided. Damage caused by willful or negligent behavior is often "cured" by offsetting future benefits or reimbursement. Legal proceedings are only held in a small proportion of cases.
- Parental support (Germany)
- Welfare cuts
- Social justice
- Social clause
- Old-age poverty
- Social crime
- European Welfare Agreement
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- BVerfGE 82, 60 , 85, No. 104 ff. - Tax-free subsistence level (the so-called child benefit decision)
- LSG Niedersachsen-Bremen , decision of April 14, 2015, Az. L 8 SO 54/15 B ER, full text
- BSG , judgment of May 9, 2009, Az. B 8 SO 4/08 R, full text
- BSG, judgment of 23 August 2013, Az. B 8 SO 19/12 R, full text
- Germany cannot take care of all of Europe's needs , Welt.de
- About social assistance for EU foreigners, Nahles, SPD, Vernunft , FAZ.net
- Law against Social Tourism , Deutsche Welle
- Why the Hartz IV judgment is only fair , Welt.de
- Unemployed EU citizens: What the Hartz IV judgment means for Germany , Spiegel.de
- BSG, judgment of June 9, 2011, Az. B 8 SO 20/09 R, full text
- Term income ( memento of October 29, 2013 in the Internet Archive ); Authority for Labor, Social Affairs, Family and Integration of the City of Hamburg. Infoline welfare. Specification on § 82 SGB XII, Item 3.7 Income tax allowance for gainful employment ( Abs. 3 SGB XII), as of August 2013, last accessed October 23, 2013.
- BSG, judgment of March 18, 2008, Az. B 8 / 9b SO 11/06 R, full text
- BVerwG, judgment of March 28, 1974, Az.VC 29.73, full text
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- BGH , decision of June 17, 2015, Az.XII ZB 458/14, full text
- Marie-Luise Hauch-Fleck: How more becomes less / The Federal Government uses Hartz IV to clandestinely lower social assistance , Die Zeit (No. 52/2004) December 16, 2004
- Cf. Werner Bührer: Economic Development in the Federal Republic , in: Information on Political Education, Issue 270: Germany in the 70s / 80s, 2001
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- BT-Drucksache 16/1410 (PDF file; 760 kB)
- Federal Statistical Office : expenditure on social assistance
- Uwe-Dietmar Berlit (lecture at the symposium "Netzwerk SGB II"): Sanctions - social law requirements ( page no longer available , search in web archives ), Leipzig, May 3, 2006 (PDF file; approx. 136 kB)
- Verbatim quote from Albrecht Brühl: Florida-Rolf, Viagra-Kalle and Yacht-Hans printed in: info also 1/2004
- R. Gebauer: Who is sitting in the poverty trap ?, 2002, p. 20