Concept and Systematics of Public Welfare
Public welfare is a central element of German social law and refers to state-organized assistance for persons who are in an emergency situation and cannot free themselves from it. It forms a historical and legal core area of social security and is implemented in particular by social benefit agencies. Public welfare covers various material and immaterial forms of assistance, serving to uphold human dignity and equal opportunities.
Public welfare differs from private or voluntary charity through its legal bindingness, its anchoring in social law, and the resulting state obligations. The term “public welfare” has gradually been replaced by more specific terms such as “social assistance” or “social services,” but remains significant in a legal-historical and systematic context.
Legal Bases of Public Welfare
Historical Development
The legal basis for public welfare was established with the entry into force of the Weimar Constitution (WRV) and was concretized by the Law on the Duty of Welfare (Fürsorgepflichtgesetz) of 1924. After the founding of the Federal Republic of Germany, public welfare was regulated by the Federal Social Assistance Act (BSHG), which was introduced in 1962 and later replaced by the Social Code (SGB), in particular Book XII (Social Assistance).
Modern Legal Foundations
Today, public welfare is essentially anchored in the Twelfth Book of the Social Code (SGB XII). In addition, there are various special provisions and interfaces with other Social Code books, for example SGB II (basic income support for jobseekers). Supplementary provisions in SGB I (General Part) and numerous implementing acts of the federal states are also relevant.
Constitutional Connection
The constitutional basis primarily derives from the welfare state principle (Art. 20 para. 1 Basic Law – GG) and the guarantee of human dignity (Art. 1 GG). The Federal Constitutional Court has emphasized in several decisions that the Basic Law entails a state obligation to secure the subsistence minimum. Moreover, there are points of contact with the equality principle (Art. 3 GG).
Scope of Application and Functions of Public Welfare
Personal Scope of Application
Public welfare is aimed at persons who are in an economic and/or social emergency and cannot make sufficiently effective use of self-help, maintenance claims, or other third-party benefits. In addition to German nationals, under certain conditions, foreigners and stateless persons may also be entitled to benefits, both with and without a residence permit.
Content and Extent of Welfare Benefits
The benefits of public welfare are diverse. They may particularly include:
- Assistance with Livelihood: Securing the subsistence minimum including accommodation, food, clothing, and medical care.
- Integration Assistance: Support for persons with disabilities in participating in social life.
- Health Assistance: Coverage of costs for medical treatment, preventive care, and rehabilitation.
- Assistance for Long-Term Care: Support in case of need for care according to the criteria in SGB XI and SGB XII.
- Assistance for Overcoming Special Social Difficulties: Intervention in cases of homelessness, addiction problems, incarceration, etc.
- Assistance for the Elderly: Specific support services for elderly people.
Public welfare regularly also includes counseling and care services if these are required.
Responsibility, Procedure, and Financing
Providers of Public Welfare
In Germany, public welfare is provided by municipal and supra-local providers of social assistance. Depending on the federal state, these are districts, independent cities, or regional associations. The professional authority often lies with the states, while the organizational implementation is the responsibility of the municipalities.
Administrative Procedure
The social law administrative procedure is governed in particular by the provisions of Book Ten of the Social Code (SGB X). This especially concerns the application process, fact-finding, decisions by means of administrative act, legal protection (objection, lawsuit), as well as the reclaiming of wrongly received benefits.
Financing
The financing of public welfare is predominantly sourced from tax revenues of public authorities. The distribution of burdens between the federal government, states, and municipalities is legally regulated and is oriented towards various allocation keys and compensation mechanisms.
Relationship to Other Social Benefits and Distinctions
Principle of Subsidiarity
Public welfare is subordinate to other options of help (the ‘principle of subsidiarity’). Before claiming welfare benefits, priority claims against third parties (e.g., maintenance, insurance benefits) or the use of one’s own assets and income must be examined and utilized. Welfare only takes effect when all other means have been exhausted.
Dependency on Other Social Benefit Systems
Public welfare is closely linked to other social system benefits (e.g., unemployment benefit, child benefit, housing benefit). Detailed coordination and crediting regulations exist to prevent both over-provision and gaps in benefits.
Distinction from Private and Voluntary Welfare
In contrast to public welfare, private aid (by family members, welfare associations, foundations) and voluntary social services are not guaranteed by state mandatory law.
Legal Protection in the Field of Public Welfare
Affected persons can challenge decisions of welfare authorities by means of remedies and legal actions. The relevant instances are those regulated in SGB X and SGG (Social Court Act): objection, action before the social court, appeal, and revision. Urgent legal protection can be sought in cases of imminent existential hardship by way of interim injunctions.
Data Protection and Data Collection in Public Welfare
The processing of personal data in the context of public welfare is subject to the requirements of SGB I, SGB X, as well as the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). The collection, processing, and use of data is permitted only insofar as there is a legal authorization and protection of the affected individuals is ensured.
Significance and Current Developments
Public welfare serves the realization of the constitutional mandate of the welfare state and ensures societal stability, integration, and social justice. In recent years, particular challenges such as demographic change, migration, digitalization of administration, and new life risks (e.g., pandemics) have come to the fore. Discussions concern, among other things, the adequacy of benefits, the simplification of benefit law, and the prevention of benefit abuse.
Literature References and Further Information
For in-depth information, comprehensive commentaries on the Social Code, textbooks on social law, and current professional journals on social law are recommended. In particular, the amendments to SGB XII and the case law of the Federal Constitutional Court and the social courts offer an important basis for practical application and interpretation of the regulations surrounding public welfare.
Frequently Asked Questions
Who is legally entitled to public welfare benefits?
In the legal context, persons entitled to benefits within the framework of public welfare in Germany are primarily regulated in the Twelfth Social Code (SGB XII), but also in special laws (e.g., Asylum Seekers’ Benefits Act, SGB II). In principle, these are persons who cannot secure their necessary subsistence, or cannot do so sufficiently, from their own income and assets, and who have no priority claims against third parties (such as maintenance obligors or social insurance agencies). Entitled persons are German citizens, as well as – under certain conditions – foreigners with habitual residence in Germany. Specific groups particularly include elderly people, persons with reduced earning capacity, or persons with disabilities who require help with care, integration, or basic income support. Foreigners are entitled to benefits if they are lawfully – i.e., with a residence permit or settlement permit – in the federal territory, provided that no grounds for exclusion (such as short-term stays for job-seeking purposes) apply.
Which authority is responsible for granting public welfare benefits?
In the German administrative system, the local social assistance providers are generally responsible for the implementation and granting of welfare benefits within the framework of public welfare. These are usually the social welfare offices of independent cities or districts. For specific benefit areas – such as integration assistance or youth welfare – responsibility may also be assigned to supra-local agencies such as state welfare associations. Responsibility is determined according to the place of residence or habitual abode of the person seeking help. In individual cases, responsibility may also arise from special rules in benefit law, e.g., for supra-regional responsibility for people with special support needs.
Are there legal cooperation obligations for applicants for public welfare?
Yes, under the principle of subsidiarity and pursuant to the provisions of § 60 of Book One of the Social Code (SGB I), the applicant is obliged to cooperate. This particularly includes disclosing all relevant personal and financial circumstances, submitting proof of income, assets, and maintenance, submitting required application documents, as well as reporting any changes in circumstances. If the applicant fails to fulfill these obligations, or does so inadequately, benefits may be withheld or withdrawn in whole or in part pursuant to § 66 SGB I, if the lack of cooperation prevents clarification of the facts.
What legal remedies are available to welfare recipients in case of refusal or reduction of benefits?
Welfare recipients have the fundamental right to file an objection against administrative acts in the event of rejection, reduction, or recovery of benefits. This is governed by the provisions of the Administrative Procedure Act (VwVfG) and the rules laid down in the Social Code books. As a rule, the objection must be filed in writing or placed on record at the responsible authority within one month of the decision being announced. If the objection is not granted, the possibility exists to file a lawsuit with the competent social court. Under certain circumstances, interim legal protection applications may also be filed to prevent endangerment of subsistence during the ongoing procedure.
Under what conditions can repayment or recovery claims arise?
Recoveries of public welfare benefits regularly occur when benefits have been granted unlawfully, in particular due to incomplete or incorrect information. The legal basis is especially § 50 SGB X, according to which benefits provided unlawfully must be reclaimed retroactively regardless of fault following the issuance of a retroactive exemption notice or a new determination. Typical cases also include recoveries resulting from subsequently discovered income or cost coverage by primary social insurance agencies. Reimbursement claims between the welfare agencies themselves are based on SGB X and ensure that the agency which initially provided the benefit, but was not actually responsible, can claim reimbursement from the competent agency.
To what extent can public welfare benefits be subject to the condition of subsidiarity?
The principle of the subsidiarity of public welfare is a fundamental aspect of German social law and is found, for example, in § 2 SGB XII. This means that welfare benefits are only granted if and insofar as subsistence cannot be secured by one’s own efforts and means, or by priority claims – such as maintenance, social benefits like unemployment benefit II, child benefit, or pensions. The subsidiarity applies likewise to personal assets, which must be used in priority if it exceeds the statutory exemptions. The fulfillment of these requirements is examined by the competent authority during the application process and reassessed with every change in circumstances.
