Competence in matters of social assistance
The jurisdiction in matters of social welfare is very complicated because it is largely determined by state law and is different partly strongly in the individual federal states. Disputes on questions of jurisdiction very often lead to proceedings before the social courts, which are often brought up to the federal social court .
Material jurisdiction
General regulation
Social assistance is provided by local and regional agencies. Local social assistance providers are generally the districts and urban districts. The supra-local provider of social assistance is determined by the individual countries ( Section 3 SGB XII). They are:
In principle, the local agency is responsible for the matter, unless the supra-local agency is responsible for the matter. Unless otherwise stipulated by state law, the supra-local authority is responsible for the integration assistance for disabled people , assistance with care , assistance with overcoming particular social difficulties and assistance for the blind . If benefit recipients are housed in an inpatient setting according to these legal bases, the supra-local provider is also responsible for all other social assistance benefits ( Section 97 of Book XII of the Social Code).
The states can regulate that the districts can delegate individual tasks of social assistance to the municipalities so that they can decide in their own name; the district remains the competent objection authority. The state of Rhineland-Palatinate, for example, has made use of this for cash benefits from social assistance ( assistance with livelihood and basic security in old age and in the event of reduced earning capacity ). It is also regulated that the supra-local authority can transfer individual tasks to the districts and the municipalities; Here, too, the supra-local authority remains the competent objection authority ( § 99 SGB XII).
The state law usually also regulates that the district or the municipality must provisionally provide services if there is a dispute about the factual jurisdiction. Federal law expressly only provides for this in the event of a dispute over local jurisdiction.
Deviating regulations
Baden-Württemberg
The local social welfare agency is always responsible. The supra-local social welfare agency does not assume any tasks in the context of the provision of services.
Bavaria
The supra-local social welfare agency is responsible for:
- Integration assistance benefits for disabled people
- Social assistance benefits to beneficiaries who are part-time inpatient and inpatient; however, in the case of basic security in old age and reduced earning capacity, only if the social assistance provider actually provides benefits for the accommodation
- help for the blind
Even in the case of accommodation in a residential group or in an outpatient assisted living facility , the supra-local social assistance provider is also responsible for all other social assistance benefits.
Berlin
The individual districts of the State of Berlin are responsible for all social assistance benefits.
Brandenburg
The local social welfare agency is always responsible, except for social welfare for Germans abroad.
Bremen
The cities of Bremen and Bremerhaven are responsible for all social assistance benefits.
Hesse
The general rules on material competence apply; Notwithstanding this, the local social welfare agency is responsible for:
- Benefits of integration assistance for disabled people who help to care and support in overcoming special social difficulties outside of a home or an assisted living community , unless there are vagrants according to the Federal Social Assistance Act
- the semi-inpatient or inpatient accommodation of service recipients who have reached the age of 65, with the exception of homeless people or residents of a disability home who were already accommodated there before they were 65
- visiting a special educational kindergarten
If the beneficiary is also permanently and fully incapacitated within the meaning of the statutory pension insurance, the following applies:
- In the case of semi-stationary accommodation in a home for the disabled, the local social welfare agency is responsible overall.
- In the case of full inpatient accommodation in a home for the disabled, the supra-local social welfare agency is responsible overall.
- In the case of full inpatient accommodation in a nursing home, the supra-local authority responsible for social assistance is generally responsible if the person has not yet reached the age of 65.
Lower Saxony
The supra-local social welfare agency is responsible for:
- the semi-inpatient or inpatient accommodation for disabled people and people in need of care
- Assistance for attending a university as part of integration assistance for disabled people
- help for the blind
- the support in overcoming special social difficulties for housing the homeless and vagrants, in the latter case including the services of assistance for living expenses
- social assistance for Germans abroad
Even in the case of semi-inpatient accommodation, the supra-local social assistance provider is also responsible for all other social assistance benefits. The responsibility of the supra-local social welfare agency ends with the age of 60.
In deviation from this, the local social welfare agency is responsible for attending private schools , unless the person concerned is mentally, emotionally or sensually disabled.
North Rhine-Westphalia
The supra-local social welfare agency is responsible for:
- the semi-inpatient or inpatient accommodation of disabled people up to the age of 65, in the case of employment in a workshop for disabled people until they reach the standard retirement age
- Accommodation in a residential group or assisted outpatient living as well as outpatient care by an outpatient nursing service for adults up to the age of 65
- Assistance for attending a university as part of integration assistance for disabled people
- the supply of prostheses and other aids within the meaning of § 47 SGB IX from a price of 180 euros
- the support in overcoming special social difficulties up to the age of 65 years
- help for the blind
- the placement of children in a foster family
If a disabled person has received integration assistance benefits for at least twelve consecutive months before reaching the age of 65, the responsibility of the supra-local authority for social assistance remains even after reaching the age limit.
Rhineland-Palatinate
The supra-local social welfare agency is responsible for:
- social assistance for Germans abroad
- the semi-inpatient or inpatient accommodation of service recipients, this also applies to compulsory admission according to the Mentally Ill Act
- the supply of prostheses and other aids within the meaning of § 47 SGB IX
- help for the blind
- Social assistance benefits to non-residents within the meaning of the Federal Social Assistance Act
- Assistance for attending a university as part of integration assistance for disabled people
- Care and treatment services for cancer patients
Saarland
The supra-local social welfare agency is responsible for:
- social assistance for Germans abroad
- Integration assistance for disabled people
- Help to overcome particular social difficulties
- the part-time or in-patient accommodation of beneficiaries in need of care up to the age of 65
- Help for the blind
- Forced inmates according to the law of the mentally ill
Saxony
The supra-local social welfare agency is responsible for:
- the part-time or in-patient accommodation of adult service recipients up to the age of 65 outside a hospital
- Services in the context of assisted outpatient living
- Assistance for attending a university as part of integration assistance for disabled people
- the procurement of a motor vehicle in accordance with the Motor Vehicle Aid Ordinance
- hospitalization from the 61st day
Saxony-Anhalt
The general rules on material responsibility apply. Deviating from this, the local social welfare agency is responsible for outpatient services to help overcome particular social difficulties .
Schleswig-Holstein
The supra-local social welfare agency is solely responsible for accommodating the homeless. In all other cases, the local social welfare agency is responsible.
Thuringia
The local social welfare agency is always responsible, except for social welfare for Germans abroad.
Local jurisdiction
The local jurisdiction generally results from the actual stay of the service recipient. The habitual residence plays in the social welfare not matter ( § 98 Abs. 1 SGB XII).
If social assistance is provided to inpatients, however, the local authority responsible for social assistance is the district in which the beneficiary is habitually resident when admitted to the facility or in the last two months before admission. If a beneficiary becomes in need of social assistance only after being transferred to another facility, these regulations apply mutatis mutandis to the first facility in which the beneficiary was accommodated.
If after four weeks the local responsibility is not established or a habitual residence cannot be determined or there is an emergency, the locally responsible social welfare agency according to the general regulation has to provide benefits provisionally; he can have the costs reimbursed by the actually locally responsible social welfare agency in accordance with Section 106 of Book XII. If it is still not possible to determine habitual residence, the supra-local social welfare agency has to reimburse the costs, provided that a local social welfare agency was materially responsible. Moving to a residential group attached to a home or taking a vacation from the home does not end the inpatient accommodation. If a child is born in an inpatient facility, it inherits the mother's habitual residence ( Section 98 (2) SGB XII).
In principle, a beneficiary cannot establish a habitual residence in an inpatient facility or in a prison or in a facility for the penal system, so that in these cases the last habitual residence remains ( Section 109 of the Social Code Book XII).
The so-called "facility chain" follows from these regulations: As long as a beneficiary only changes from one inpatient placement to the next, the responsibility of the last social welfare institution remains with the first facility. In the case of long chains of institutions, this can mean that research on the residence back to decades has to be carried out, since, according to case law, a stay before the Federal Social Welfare Act came into force in 1962 (old federal states) / 1991 (new federal states) may also be required. For a long time, however, the handling of local jurisdiction in so-called "mixed establishment chains" between inpatient and outpatient facilities was disputed. In 2018, the Federal Social Court decided against the existence of these mixed chains of institutions, with the result that a change from an inpatient to an outpatient facility establishes the responsibility of the social welfare provider at the location of the inpatient facility, including for future inpatient accommodation.
If a beneficiary is discharged from an inpatient facility and receives social assistance benefits within one month within the district of the local social welfare agency responsible for the facility, the latter has a claim to reimbursement from the local agency responsible for the institution last for up to two years . If benefits are not provided for a period of two months because the beneficiary leaves the district or is again placed in an inpatient facility, or the need for assistance no longer applies, the claim for reimbursement does not apply ( Section 106 (3) SGB XII).
If a beneficiary is accommodated in a residential group or if he receives help in the context of outpatient assisted living, the social welfare agency that was or would have been responsible locally before these benefits occurred is locally responsible. This regulation did not yet exist at the time of the Federal Social Welfare Act; If the beneficiary was already receiving outpatient care on January 1, 2005 and this resulted in the local responsibility of the social welfare provider at the current place of residence, this responsibility remains until the end of the benefit ( Section 98 (5) SGB XII).
Individual evidence
- ↑ LWL members - BAGüS. Landschaftsverband Westfalen-Lippe , accessed on 23 August 2017 .
- ↑ Art. 81 AGSG Bavaria
- ↑ BVerwG, judgment of June 15, 1998, AZ 5 C 30.97
- ↑ BSG, judgment of July 5, 2018, AZ B 8 SO 32/16 R
