Federal Social Assistance Act (BSHG): Fundamentals and Development
The Federal Social Assistance Act (BSHG) was a significant German law that regulated the law of social assistance at the federal level from 1961 to 2004. It formed the central legal basis for granting assistance to secure the livelihood of persons in need. With the introduction of the Twelfth Book of the Social Code (SGB XII) on January 1, 2005, the BSHG was replaced. This text comprehensively explains the structure, regulatory content, development history, and the significance of the BSHG for German social law.
Historical Development of the Federal Social Assistance Act
The Federal Social Assistance Act came into force on June 1, 1962. For the first time, it created a nationwide uniform regulation of social assistance and replaced the welfare laws previously issued by the federal states. The aim of the BSHG was to guarantee the social and economic security of people in need through concrete benefits and legal claims.
The legislator responded with the BSHG to the social changes in the Federal Republic of Germany after the Second World War. The changed economic and social conditions, as well as the claim to a dignified minimum existence, were to be bindingly guaranteed.
During its existence, the BSHG was amended several times to take account of new social and political developments. On January 1, 2005, the law was replaced by SGB XII (Social Assistance).
Systematics and Structure of the Federal Social Assistance Act
The BSHG most recently consisted of a total of 148 sections, divided into nine chapters. The provisions specified in detail the requirements, types, and scope of social assistance benefits as well as the administrative procedure.
Sectional breakdown (selection):
- 1st Chapter: General Provisions (§§ 1-7 BSHG)
- 2nd Chapter: Social Assistance Benefits (§§ 8-42 BSHG)
- 3rd Chapter: Jurisdiction and Costs (§§ 43-57 BSHG)
- 4th Chapter: Implementation of Social Assistance (§§ 58-70 BSHG)
- 5th Chapter: Objection and Lawsuit (§§ 71-75 BSHG)
- 6th Chapter: Transfer of Claims (§§ 76-91 BSHG)
- 7th Chapter: Data Protection (§§ 92-94 BSHG)
- 8th Chapter: Special Regulations for Berlin-West (§§ 95-123 BSHG)
- 9th Chapter: Final Provisions (§§ 124-148 BSHG)
Substantive Focuses of the Federal Social Assistance Act
Principle of Social Assistance
The core concern of the BSHG was the principle of ensuring every person who finds themselves in need and cannot help themselves a dignified minimum existence. Social assistance was subordinate to other social benefits, private income and assets.
Entitlement and Subsidiarity
Social assistance was only granted if those affected were unable to secure their livelihood from their own resources or through priority claims (e.g. maintenance, pensions, unemployment benefit). This so-called principle of subsidiarity was enshrined in law.
Types of Social Assistance Benefits in the BSHG
The BSHG distinguished between various types of assistance, each covering specific needs.
1. Assistance for Living Expenses:
This assistance covered basic needs such as food, clothing, accommodation, household goods, heating, personal hygiene, and personal needs of daily life.
2. Assistance in Special Life Situations:
Covered, for example, assistance for health, integration assistance for people with disabilities, assistance for care, or assistance in overcoming special social difficulties.
This systematic differentiation enabled individual support tailored to each specific need situation.
Requirements and Pre-conditions for Claims
Neediness
Central to entitlement to social assistance was neediness as defined in § 1 BSHG. A prerequisite was that the person could not secure their livelihood by their own means or with the support of others.
Duties and Cooperation
Beneficiaries were required to exhaust all possibilities for self-help. Under certain conditions, assistance was granted as a loan.
Duration and Scope of Assistance
In principle, the assistance was limited to the determination and duration of need and ended as soon as the need for assistance ceased.
Organization and Implementation
Agencies Responsible for Social Assistance
Social assistance was provided by local agencies (municipal level) for current benefits and by supra-local agencies for special tasks.
Administrative Procedure
The BSHG regulated the administrative procedure in detail, including the right to apply, the decision-making requirements of the authorities, legal remedies (objection and lawsuit), as well as data protection requirements.
Relationship to Other Social Benefits and Legal Conditions
The BSHG regarded itself as a “catch-all law” within the system of social security and only became applicable if there were no other legal claims (e.g. SGB III, SGB VI) or if these were insufficient. Assets and income were taken into account, but private retirement provision remained protected to a certain extent.
Termination and Transition to SGB XII
With the entry into force of SGB XII on January 1, 2005, the regulations of the BSHG were adopted and further developed in modified form. Since then, SGB XII has specified the entitlement to social assistance and strengthened the principle of a dignified minimum existence.
Significance and Impact of the Federal Social Assistance Act
The Federal Social Assistance Act had a significant influence on the development of German social law. It set a binding framework for public welfare and had a major impact on the living situation and social integration of numerous people in Germany from 1962 to 2004. The law was central to the further development towards the modern regulations found in SGB XII.
Literature and Sources
- Federal Social Assistance Act of June 30, 1961 (BGBl. I p. 815)
- Bundestag printed matters and legislative materials
- Commentaries on Social Assistance Law
- Social Code (SGB) Twelfth Book (SGB XII)
With this comprehensive presentation, the article provides a detailed overview of the Federal Social Assistance Act, its content, and its mode of operation in the context of German social law.
Frequently Asked Questions
When does the Federal Social Assistance Act still apply, and which provisions continue to be used?
The Federal Social Assistance Act (BSHG) was generally replaced with the entry into force of the Social Code, Twelfth Book (SGB XII) on January 1, 2005. However, individual provisions of the BSHG still apply, in particular for matters arising before January 1, 2005 or for ongoing procedures that have not yet been completed, or for which special transitional provisions refer to the BSHG. For example, this concerns legacy cases regarding cost reimbursement (§§ 91 et seq. BSHG), as well as recovery cases that must be judged on the basis of the old law if the relevant facts arose fully before the transition to SGB XII. In addition, certain principles of interpretation and legal concepts of the BSHG continue to apply when interpreting indeterminate legal terms in SGB XII, as the BSHG serves as a historical reference or “model” for some regulations.
What were the effects of the introduction of SGB XII on existing social assistance claims under the BSHG?
With the entry into force of SGB XII, existing claims under the BSHG were generally continued under the new provisions. According to Article 68 para. 1 sentence 1 EGBGB in conjunction with §§ 140 et seq. SGB XII, ongoing administrative procedures and ongoing benefits granted under the BSHG are, as a rule, officially adapted to the provisions of SGB XII. However, a transitional provision was created for certain cases: Under specific circumstances, for example in cases of analogous reference to norms, legacy cases (e.g. claims for reimbursement or previously assumed allowances) can still be judged according to the provisions of the BSHG if this is explicitly regulated or follows from the facts of the case. Nonetheless, the change to the new law was otherwise automatic in principle. New applications or cases after January 1, 2005 are to be assessed exclusively under SGB XII.
How is the relationship of the Federal Social Assistance Act to other Social Codes regulated?
The BSHG was an independent law alongside the other Social Codes, especially SGB I (General Part) and SGB X (Social Administrative Procedures). With the transition to SGB XII, the relationship is now clearly regulated as part of the Social Code. SGB XII completely replaces the BSHG with regard to assistance for living expenses and basic security for job seekers. Special assistance, such as for people in need of care, is covered by SGB XI (long-term care insurance), and benefits for job seekers by SGB II. Old entitlements from the BSHG may also be superseded by interim legislative amendments and special statutory provisions (e.g. Asylum Seekers Benefits Act, OEG). The principles of subsidiarity and subordination in the provision of benefits remain central in the SGB system and were adopted from the BSHG.
What legal remedies were available under the Federal Social Assistance Act?
Under the BSHG, recipients of social assistance had access to the legal remedies provided for in social administrative law. An objection to administrative notices was the primary legal remedy and, according to § 84 SGG, had to be filed in writing or for the record with the administration within one month of notification of the administrative act. If no remedy was provided, a lawsuit could be filed with the social court. The procedure was essentially already the same as that now established in SGB X and SGG. There was also the option of interim relief orders to secure benefits necessary for subsistence, with the criteria specified through case law and partly through administrative instructions. Important procedural principles such as the investigation principle (§ 20 SGB X) or the obligation to grant a hearing before adverse decisions largely originated in the BSHG era and were carried over into SGB X.
How was jurisdiction for benefits under the Federal Social Assistance Act regulated?
The local jurisdiction for social assistance benefits under the BSHG was fundamentally determined by actual residence (§ 97 BSHG). This meant that social assistance was provided by the authority at the place of need. For certain types of assistance, such as care assistance or integration assistance for people with disabilities, there were special provisions involving the supra-local social assistance agencies (usually the supra-local social assistance agencies/state offices or regional authorities). The rules for cost reimbursement between agencies, especially when relocating during ongoing benefits or in matters involving more than one federal state, were partly complex and were clarified in SGB XII. In case of disputes between social assistance agencies, special procedures existed for clarifying jurisdiction and distributing costs.
In what cases were benefits under the Federal Social Assistance Act granted as loans?
According to the BSHG, certain social assistance benefits could be provided as loans rather than grants if immediate assistance was necessary to secure subsistence but it was expected that the applicant would later be able to repay them (§ 89 BSHG). This applied especially in cases of solvable emergency situations that existed independently of assets or income (e.g., advances, bridging assistance), in situations where there was a prospect of soon acquiring one’s own means, or when, due to ‘culpable’ neediness, benefits should only be provided as loans. Furthermore, a loan was mandatory if assets existed that could not be realized immediately but might be liquidated at a later date (e.g. real estate or life insurance). The details, such as interest or repayment modality, were to be determined by administrative decision in each case. The right to reclaim was subordinate to the claimant’s rights to subsistence.
What were the obligations for participation and disclosure imposed on beneficiaries under the Federal Social Assistance Act?
The BSHG required beneficiaries to cooperate comprehensively in clarifying the relevant facts of their case (§ 66 BSHG). This included, in particular, the obligation to disclose all facts relevant to the granting of social assistance and to submit evidence (e.g. proof of income and assets, rental agreements, confirmations from third parties). In addition, relatives and third parties who were obliged to provide maintenance or could provide relevant information for the assessment of benefits could also be required to provide information. Breaches of these cooperation obligations could lead to refusal or withdrawal of benefits. These cooperation regulations were further detailed and systematically integrated into law through SGB I and SGB X with the new regulations.
How did the Federal Social Assistance Act address the involvement of individuals liable for maintenance and cost reimbursement?
The BSHG provided that third parties, particularly relatives obliged to provide maintenance, could retrospectively be required to bear costs by way of cost reimbursement pursuant to §§ 91 et seq. BSHG as soon and insofar as they were able to do so. This meant that, for example, adult children or spouses could be called upon to cover the social assistance provided, provided they had sufficient funds. The limit of what was financially reasonable was determined by the then applicable civil law maintenance rules and the benefit law provisions regarding exempt assets. These rules remained in place until the systemic change in 2005 with restrictions, e.g., discontinuation of the involvement of parents of adult children in integration assistance from 2023 as per BTHG. In the case of legacy cases, application of the relevant BSHG provisions remains possible provided no other law applies or there is an express transitional provision.
