Fundamentals of Independent Welfare Work
Independent welfare work is a central component of the German welfare state. It encompasses all non-governmental organizations dedicated to promoting the common good, particularly supporting people in need. In contrast to public welfare (governmental providers), independent welfare organizations operate autonomously, but are legally anchored in many ways and integrated into the state system of social services.
Conceptual and legal classification
Historical development
The origins of independent welfare work date back to the 19th century and are closely linked to the development of civic and church-based initiatives. From a legal history perspective, the separation between public and independent welfare work became established with the rise of the welfare state and the founding of the six umbrella organizations of independent welfare work (Federal Association of Independent Welfare Work – BAGFW).
Distinction from public welfare
The key distinction between public and independent welfare work lies in the providers: While the former is represented by governmental and municipal authorities (e.g., state, cities, municipalities), independent welfare work is carried out by privately organized associations, federations, foundations, or religious communities.
Legal basis
The legal foundation of independent welfare work is primarily provided by the Social Code (SGB), in particular SGB VIII (Child and Youth Welfare), SGB IX (Rehabilitation and Participation of Persons with Disabilities), and SGB XI (Long-Term Care Insurance). According to § 4 SGB IX and § 75 SGB XII (Social Assistance), recognized welfare associations are considered “independent welfare providers.” By law, they hold an equal position alongside public providers and maintain a partnership relationship with state authorities, known as the subsidiarity principle.
Subsidiarity principle and its legal significance
The subsidiarity principle is a central regulatory guideline for independent welfare work. It basically states that private or independent organizations are to be prioritized over state actors in the provision of services (so-called priority of non-profit providers, § 5 SGB VIII). Governmental agencies support and promote these associations, but do not control their activities in terms of content, only in regard to legal requirements and proper use of funds.
Legal structure of independent welfare organizations
Association and foundation law
The majority of independent providers are organized as registered associations (§§ 21 ff. BGB) or foundations (§§ 80 ff. BGB). They are required to comply with the general provisions of the German Civil Code, tax regulations (§§ 51 ff. AO: non-profit status), and other relevant legal provisions.
Umbrella organizations of independent welfare work
There are six major umbrella organizations in Germany:
- German Caritas Association (DCV)
- Diakonie Deutschland – Protestant Agency for Diakonie and Development e.V.
- German Red Cross (DRK)
- Arbeiterwohlfahrt Federal Association (AWO)
- German Parity Welfare Association – National Association (Der Paritätische)
- Central Welfare Agency of Jews in Germany (ZWST)
These umbrella organizations coordinate the work of their member organizations, represent their interests to policymakers and administrators, and participate in the formation of statutory regulations.
State recognition and nonprofit law
Recognition as an independent provider
Recognition as an independent provider is governed by law, for example under § 75 SGB XII for social assistance tasks or § 25 SGB III for employment promotion. Recognition generally requires non-profit status, lasting and appropriate suitability, and compliance with legal requirements. Legal recognition leads to entitlements to funding and benefits such as access to public funding, tax advantages, and preferential collaboration with public bodies.
Legal requirements for nonprofit status
Independent providers must fulfill the requirements for nonprofit status within the meaning of §§ 51 ff. of the Fiscal Code. This includes both tax privileges and the use of funds solely for purposes serving the common good. The use of grants is subject to strict documentation requirements and governmental financial control.
Areas of responsibility and legal framework of independent welfare work
Scope of services
Independent welfare organizations operate in nearly all areas of social work, including:
- Child and youth welfare
- Elderly care and nursing
- Assistance for people with disabilities
- Migration and integration work
- Homelessness assistance and poverty reduction
- Healthcare sector
Their specific functions and powers are defined by special legal provisions (e.g., SGB VIII, SGB IX, SGB XI, SGB XII).
Collaboration with public authorities
Cooperation between public and independent providers is mandated by law and often takes place in coordinating bodies such as youth welfare committees (§§ 70 ff. SGB VIII). Service provision contracts require a legal basis (e.g., §§ 75 ff. SGB XII: agreements on service, quality, and remuneration).
Financing and remuneration
Financing of independent welfare work comes from a mix of public funds (service remuneration, grants, subsidies under SGB VIII/XI/XII), own funds, donations, and membership fees. Remuneration agreements determine the amount and conditions for the allocation of funds, the observance of which is monitored by audit authorities and courts.
Legal protection and supervision
Audit and reporting obligations
Organizations are required to use funds properly, manage their finances transparently, and provide regular reports to funding bodies. Compliance with legal requirements is monitored by supervisory authorities; violations may result in withdrawal of recognition or recovery of grants.
Prohibition of discrimination and open access
Independent providers are obliged to comply with the general principles of equal treatment and the prohibition of discrimination. This particularly requires that their services be accessible to all in need, unless their statutes stipulate a specifically justified group of people.
Significance in the welfare state structure
Independent welfare work assumes essential state functions “in the hands of civil society.” It shapes Germany’s social infrastructure and contributes to innovation and social integration. Legal ties and cooperative partnerships guarantee effectiveness, diversity, and citizen focus.
Sources:
- Social Code (SGB), in particular SGB VIII, IX, XI, XII
- §§ 21 ff., §§ 80 ff. BGB
- §§ 51 ff. AO
- Federal Association of Independent Welfare Work (BAGFW)
- Federal Ministry of Labour and Social Affairs (BMAS)
Note: This overview provides a comprehensive summary of the legal aspects of independent welfare work and its integration into the German social law system.
Frequently Asked Questions
What legal foundations govern independent welfare work in Germany?
The legal foundations of independent welfare work in Germany are primarily derived from the Social Code (SGB), particularly SGB VIII (Child and Youth Welfare), SGB IX (Rehabilitation and Participation of Persons with Disabilities), SGB XI (Long-Term Care Insurance), and SGB XII (Social Assistance). Additionally, the Law for the Strengthening of Volunteerism and Nonprofit Organizations plays a key role, as many independent providers are nonprofit organizations. Independent welfare work is also formally represented by the Federal Association of Independent Welfare Work (BAGFW). Essential legal requirements are also found in the Basic Law, such as Art. 4 (freedom of religion) and Art. 9 (freedom of association), which secure the work of denominational and non-denominational organizations. Furthermore, the subsidiary role of independent welfare work is legally recognized in accordance with § 5 SGB XII, meaning that public providers are to cooperate primarily with independent providers.
What is the role of the subsidiarity principle from a legal perspective in independent welfare work?
The subsidiarity principle is a central constitutional and social law guideline, which is anchored, among other places, in Art. 20 (1) of the Basic Law and explicitly in SGB XII. It states that tasks relating to public welfare and care should be primarily carried out by non-governmental actors — that is, independent welfare providers — before public institutions become active. Legally, this is stipulated by, among others, the priority of independent providers in the provision of social services (§ 4 SGB IX, § 75 SGB VIII, § 17 SGB IX). Only when independent providers cannot offer suitable services is it permissible for the state to take over. This principle must also be observed in the awarding of public grants.
What are the requirements for the recognition as a provider of independent welfare work?
Recognition as a provider of independent welfare work is legally defined in various provisions, such as § 5 SGB IX, § 75 SGB VIII, and § 17 SGB IX. It requires that the organization pursues nonprofit objectives within the meaning of §§ 51 ff. AO (Fiscal Code), is socially oriented, and has established a sufficiently capable structure. Besides the so-called “federated associations” (such as Caritas, Diakonie, DRK, AWO, Paritätische Wohlfahrtsverband, ZWST), other independent providers can also be recognized if they meet comparable requirements. Formal recognition is granted by the competent state or local authority, which specifically examines whether the requirements of nonprofit status, capacity, reliability, and expertise are met.
What legal obligations do independent welfare providers have?
Independent welfare providers are subject to a wide range of legal obligations. These include, in particular, compliance with labor law provisions (such as collective agreements, Working Time Act, co-determination), data protection regulations under the GDPR and BDSG, anti-discrimination law under the AGG, and special requirements of the respective Social Codes, such as quality assurance (§ 78a SGB VIII), reporting obligations (§ 74 SGB VIII), and cooperation with authorities (§ 8a SGB VIII). Furthermore, they must provide documentation of the use of grants and public subsidies and are required to maintain transparent management and are accountable to auditing and supervision bodies. In addition, they must observe the principles of efficiency and economy in service delivery.
To what extent are facilities for independent welfare work subject to state supervision and control?
Although independent welfare organizations generally carry out their tasks independently, their facilities are subject to state supervision. Oversight is based on the legal requirements of the respective Social Codes and the supervisory laws of the states. Supervision covers the appropriateness, legality, and efficiency of the institutions’ work. Particularly relevant are specialist supervision (review of substantive work, quality standards, child protection, etc.) and financial supervision (monitoring of use of funds, accountability). The specific structure varies according to the field of service (e.g., child and youth welfare, elderly care, support for people with disabilities) and provider. Statutory provisions, for example from the Child and Youth Welfare Act (KJHG, §§ 45 ff. SGB VIII) or the Home Act, set the framework in which inspections, quality checks, and other supervisory measures are carried out.
How is the financing of independent providers structured within the legal system?
Financing generally takes place through public funds from municipalities, federal states, or the federal government as well as own funds, donations, and other contributions. The allocation of public funds is regulated by grant law and through service, remuneration, or funding contracts (§§ 74-79a SGB VIII, §§ 75 ff. SGB XII). The principles of efficiency and economy apply. The obligation to provide evidence of use of funds is legally established and requires detailed documentation (§ 44 BHO, § 44 LHO). Grants may only be used for their intended purpose, and misapplication may result in recovery of funds. Furthermore, independent providers are regularly required to comply with budget and management regulations and must observe the individual requirements of each funding body when using grants.
What legal foundations exist in the area of data protection and the protection of personal data?
The organizations of the independent welfare sector are also subject to the comprehensive regulations of the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). This means that they may only process personal data of clients, employees, or other affected persons in compliance with strict data protection requirements. Special protection applies since they regularly process sensitive data (such as health data, social background, living situation). There are extensive information, documentation, and reporting obligations, for example in the event of a data protection incident. Technical and organizational measures to protect the data must also be implemented in accordance with the state of the art. Data protection officers generally have to be appointed, and regular staff training is mandatory. Violations of data protection requirements can result in significant fines and regulatory actions.
