Author
Forms and levels of social benefits
Needs-based minimum benefit
Access to social benefits is not the same for refugees and subsidiary protection beneficiaries. Holders of subsidiary protection have the right to Basic Care, which is significantly lower than the needs-based minimum benefit (bedarfsorientierte Mindestsicherung, BMS) to which refugees are entitled. Eligibility for the needs-based minimum benefit is derived directly from Article 29 of the recast Qualification Directive for subsidiary protection beneficiaries who do not receive Basic Care but reside in a rented flat. Currently, however, some federal provinces (Burgenland, Lower Austria, Salzburg and Styria) do not provide needs-based minimum benefits to beneficiaries of subsidiary protection at all, but only provide so-called “core benefits” under their Basic Care legislation.
Beneficiaries of subsidiary protection represent the largest group of the Basic Care beneficiaries, except in Tyrol. As a rule, they can remain in the Basic Care system after being granted protection status. However, as long as they live in an organised accommodation, they will only receive the basic care provided for these types of accommodation (food, pocket money, clothing, school fees).
The Constitutional Court has dismissed a complaint from a beneficiary of subsidiary protection against this differentiation in Lower Austria, on the ground that subsidiary protection is more provisional a status than refugee status, thereby justifying differential treatment in social benefits.[1]
In addition, refugees who apply for the needs-based minimum benefit are no longer on equal terms with nationals in some federal provinces. In 2020, nationals received € 885 (€ 664 for subsistence and € 221 for rent).
Existing assets must be used before claiming social assistance or basic security. However, certain assets (such as motor vehicles or valuable household goods) must be excluded from realisation if doing so could cause an emergency, exacerbate it, or jeopardise its resolution. Asset allowances are included in the minimum security provisions of state legislation (around €5,268 in 2023).
Lower Austria: Since 2016, refugees receive lower amounts of needs-based benefits than nationals. Nationals receive € 889.84, while refugees receive € 522.50, including a bonus of € 155 granted when they take part in integration measures such as language courses. The Administrative Court (LVwG) of Lower Austria has challenged the maximum amounts introduced by the reform before the Constitutional Court. The regulation was annulled by the Constitutional Court as it constituted an infringement of the principle of equality.[2]
The fact that Burgenland decided to cap minimum benefits per household, by limiting it at € 1,500 per household regardless of its size and the number of persons concerned has been considered as unconstitutional by the Constitutional court. The Court considered that, even if the cost of living per person may decrease depending on the size of the household, additional expenses are still required for each additional person.[3]
In Burgenland, just as in Lower Austria, a waiting period for obtaining social benefits had been envisaged: those who had not been in Austria for at least five years within the last six years received less social benefits. The Constitutional Court ruled that this waiting period constitutes a different treatment of Austrian citizens and aliens. Regarding persons entitled to asylum, the scheme was considered particularly unjustified as they had to leave their country of origin and cannot return there. They must therefore not be assimilated to other strangers (EU citizens and third-country nationals) who are free to return to their country of origin. The length of stay in Austria should not lead to a differentiation in the amount of benefits granted and does not allow for assumptions as to the willingness to work of a person. [4]
Upper Austria: The general level of needs-based benefits is € 921,30 per month, including for refugees with a permanent Residence Permit. Refugees with a temporary residence permit granted from 1 July 2016 onwards and subsidiary protection holders only receive core benefits of € 405 per month, as well as an additional amount of € 155 (integration bonus) per month subject to compliance with integration measures. The total amount of benefits granted per month is € 560. The regulation was annulled by the Constitutional Court as it constituted an infringement of the principle of equality.[5]
The Administrative Court (LVwG) of Upper Austria made a preliminary reference to the CJEU to ask whether Article 29 of the recast Qualification Directive is directly applicable; and whether it is possible to differentiate the level of benefits granted on the basis of the duration of the right of residence.[6] On 21 November 2018, the CJEU concluded that EU law precludes national legislation which provides that refugees with a temporary right of residence in a Member State are to be granted social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State.[7]
For all minimum income beneficiaries, there is a maximum amount of € 1,512 granted per household, a regulation that was not contested by the Constitutional Court. For larger families, the minimum standards of all persons of a household community will be reduced evenly in percentage terms. In addition, in assessing whether a sufficient amount is available to avoid social distress, minor dependent persons may also take into account the basic amount of the family allowance and the child deduction amount. These services serve to secure livelihoods, the Constitutional Court decided.[8]
Vorarlberg: Restrictions have been introduced as of 1 January 2017 for refugees and subsidiary beneficiaries. Cash benefits may be replaced by benefits in kind if this better suits the purpose of the guaranteed minimum income. Different minimum personal security rates are introduced depending on the type of accommodation, single or in shared flats, because in shared apartments “regular cost savings, especially in the area of household effects, heating and electricity” are assumed. The maximum flat rate for housing needs for six people is € 772 per month. The changes were contested by the Ombudsman of Vorarlberg as unconstitutional before the Constitutional Court, as these maximum rates for rent are too low in view of the situation on the Vorarlberg housing market. The Constitutional Court upheld most restrictions and only found the retroactive application of the measure to be unconstitutional.[9]
In November 2018, the Ministry of Social Affairs presented a draft law on social benefits.[10] The proposal sets a maximum amount of benefits that federal provinces are obliged to grant and drastically reduces subsidies for households with several children. It also promotes compensation in kind rather than in cash. The draft law further sets certain conditions to receive the full amount of social benefits, which includes knowledge of German (level B1) or alternatively of English (C1). Refusing to integrate the labour market will also lead to cuts of about € 300 for single persons. While Austrian citizens will hardly be concerned by these new measures, refugees will be strongly affected. As regards beneficiaries of subsidiary protection, they will be excluded from the new social benefits law, which is contrary to Article 29 (2) of the recast Qualification Directive and the obligation to treat aliens equally with nationals.
The law was passed under heavy criticism by NGOs in May 2019 and immediately brought to the Constitutional Court by the opposition party SPÖ.[11] In December 2019, the Court declared several parts of the law unconstitutional. This includes the provision which foresaw that language skills are a precondition for receiving the full amount of social benefits; as well as the provision foreseeing a reduction of social benefits depending on the number of children (i.e. 25% for the first child; 15% for the second child and 5% for every remaining child).[12] The law as a whole was not abandoned, however, and the ruled out provisions were not replaced.
Other social benefits
Beneficiaries of subsidiary protection are also treated differentially with regard to family and childcare allowances, to which they are only entitled if they do not receive Basic Care. An additional condition for the childcare allowance for these persons is to earn an income.
A particular difficulty emerges when delays occur in the extension of the right of residence of beneficiaries of subsidiary protection. In fact, the family allowance for children will no longer be granted if the right to residence is not extended in due time, i.e. before its expiry. This practice of the tax offices was unsuccessfully criticised by the Ombudsman Board,[13] and the relevant case law has not been complied with yet.
Conditions for social benefits
The main condition for the needs-based minimum benefit is the need for assistance, which also applies to nationals.
Additional requirements have further been introduced in some federal provinces in the last years. These include an integration contract and participation to integration measures. Since September 2017, beneficiaries of international protection who are able to work and have not secured employment must complete a standardised integration programme of one year. This obligation applies to refugees and subsidiary protection holders who were granted status after 31 December 2014. As of April 2018, asylum seekers that have a high recognition rate should also be able to participate to the integration programme.[14] According to information provided by the Austrian Integration Fund (ÖIF), this applies particularly to Syrians.
In Styria, benefits can be cut up to 25% already for small misdemeanours, e.g. missing an appointment. In Lower Austria, where German language courses are mandatory for persons in the needs-based minimum benefit system, the allowance can be reduced by up to 50% if the person refuses to attend. In Vorarlberg, where beneficiaries are obliged to sign an integration agreement since January 2016, benefits can be reduced or withdrawn when refugees do not adhere to the integration agreement which they have to enter, e.g. by refusing to attend a language course.
Social assistance is distributed by the Social Department of the federal province. The Tax Office is responsible for the family allowance, while health insurance is responsible for the child-care allowance. The needs-based minimum benefit is granted in the respective federal province where the beneficiary resides. Beneficiaries may transfer their residence to another federal province, however. In one case, Upper Austria reduced benefits by 15% due to the beneficiary’s relocation to Tyrol. The Administrative Court of Tyrol found the reduction unlawful, as it was necessary for the person to move to Tyrol in order to find employment.[15]
Lower Austria also introduced a 5-year residence requirement, which was appealed by the LVwG before the Constitutional Court. This precondition was violating constitutional rights (see decision above).
[1] VfGH, Decision E 3297/2016, 7 July 2017, available in German at: http://bit.ly/2EOPlFB.
[2] VfGH, Decision G136/2017, 7 March 2019, available in German at: https://bit.ly/2pbTuc3.
[3] VfGH, Decision E1277/2018, 12.12.2018, available in German at: https://bit.ly/2UO2EtQ.
[4] VfGH, Decision G308/2018-8, 1 December 2018, available in German at: https://bit.ly/3yJA6HO.
[5] VfGH, Decision G164/2019, 12 December 2019, available in German at: https://bit.ly/3nntkVZ.
[6] LVwG, Upper Austria, ‘Bedarfsorientierte Mindestsicherung für befristet Asylberechtigte: Landesverwaltungsgericht Oberösterreich legt EuGH Fragen zur Vorabentscheidung vor’, 19 December 2017, available in German at: https://bit.ly/3ZQEKzn.
[7] CJEU, Ayubi, Case C-713/17, 21 November 2018, available at: http://bit.ly/3Lo3Otk.
[8] VfGH, Decision G 156/2018, 11 December 2018, available in German at: https://bit.ly/3YNcSLr.
[9] VfGH, Decision V 101/2017-11, 12 December 2017, available in German at: http://bit.ly/2EMeAnP.
[10] Entwurf Sozialhilfe-Grundsatzgesetz, Sozialhilfe-Statistikgesetz (104/ME), available at: https://bit.ly/2GshdzV.
[11] Statements to the draft law, available in German at: https://bit.ly/38hQW0w.
[12] VfGH, Decision G 164/2019-25, G 171/2019-24, 12 December 2019, available in German at: https://bit.ly/39iNmop.
[13] Volksanwaltschaft 2021, available in German at: https://bit.ly/3p0z5tj.
[14] Labour Integration Act, BGBl. I No 75/2017, 19 June 2017, available in German at: http://bit.ly/2EXvtPU.
[15] LVwG Tyrol, Decision 2016/41/0301-1, 24 February 2016, available in German at: https://bit.ly/40aIueP.