Abstract
Long-term care dependency in Austria has been recognised as an independent social risk (only) since 1993. Up to then, only isolated and rather dissimilar benefits and services existed which were partly based on the causality principle or which were granted within the context of social assistance (Sozialhilfe)—and here particularly in the form of benefits in kind. The most commonly paid cash benefit related to long-term care at the time was referred to as “helplessness allowance” within the context of the statutory pension insurance. This was an allowance in addition to the monthly pension that was granted in the case of a certain minimum need for “maintenance and help”; the amount (of a converted monthly sum of approx. € 217 in its latest figures) was, however, independent of the actual need.
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Notes
- 1.
Cf. overview in Pfeil (1994), pp. 53 ff.
- 2.
Austrian Federal Law Gazette (Österreichisches Bundesgesetzblatt, BGBl) 1993/110, as amended by BGBl I 2016/116.
- 3.
Cf. Art. 21 Austrian Federal Constitution Act (Bundes-Verfassungsgesetz, B-VG), BGBl 1930/1 as amended by BGBl I 2017/138.
- 4.
The number of responsible funding bodies, amounting to up to 303 before the reform of 2013, has meanwhile decreased to only six; see also below B I 6.
- 5.
Cf. Art. 10 Para. 1 Z 11 B-VG.
- 6.
This particularly includes persons whose equal status can be derived from treaties or European Union law, who were granted asylum or who were legally entitled to reside within the EU or who have a comparable residence permit; cf. for details § 3a Para. 2 and 3 or, respectively, § 3b BPGG; see also below B I 1.
- 7.
Cf. on this Mayer and Pfeil (2012a), pp. 385 ff.
- 8.
Some changes have to be expected in this respect since the Federal Parliament has passed a constitutional law (laid down in § 330a ASVG) that will be effective from 2018 and will ban any kind of compensation that would have to be paid by persons claiming stationary care (or their relatives) who own certain properties; see below Sect. 2.2.2.
- 9.
Particularly the increase of non-wage-labor costs which results from this, and the related further negative effect on the—by comparison already heavily affected—production factor ‘work’, as well as the fact that long-term care dependency bears a lot less connections with gainful activity than other risks covered in terms of social insurance law and therefore should be financed by all (tax payers) and not only by a (more or less) accidental collective of insurees. Cf. for discussion purposes e.g. Stöckl (2011), pp. 152 ff.
- 10.
Cf. also Art. 7 Long-Term Care Agreement.
- 11.
For more detail, see Krauskopf (2012), pp. 351 ff.
- 12.
Cf. only Klaushofer (2012), pp. 313 ff.
- 13.
It is the Austrian Hospital and Convalescent Home Act (Krankenanstalten- und Kuranstaltengesetz, KaKuG), BGBl 1957/1 as last amended by BGBl I 2017/131, which in the form of a Basic Act of the Federation merely provides a framework for the legislation of the individual Austrian province.
- 14.
Cf. particularly the Austrian Health and Nursing Act (Gesundheits- und Krankenpflegegesetz, GuKG), BGBl I 1997/108 as last amended by BGBl I 2017/131.
- 15.
The decisive legal framework is, here too, laid down by an agreement pursuant to Art. 15a B-VG, cf. BGBl I 2005/55.
- 16.
The relevant field of responsibility in Art. 12 Para. 1 Z 1 B-VG still comes under “poor relief”, even if the laws based on it later addressed matters like welfare, social assistance and, after that, the guaranteed minimum income or equal opportunities.
- 17.
Cf. §§ 27b ff KSchG, BGBl 1979/140 as meanwhile amended by BGBl I 2017/50.
- 18.
HeimAufG, BGBl I 2004/11 as last amended by BGBl I 2017/59.
- 19.
Austrian Act on In-Home Care (Hausbetreuungsgesetz, HBeG), BGBl I 2007/33 as last amended by BGBl I 2008/57; Austrian Trade Regulation Act (Gewerbeordnung, GewO), BGBl 1994/194 as last amended by BGBl I 2017/107.
- 20.
While for the first 4 years targeted subsidiary payments amounting to a total of € 685 million were available, nearly the same amount has been available for the first two years of extension and will be increasing until 2021 up to € 417 million, cf. § 2 Para. 2 PFG.
- 21.
Cf. already Art. 1 Para. 5 of the Long-Term Care Agreement.
- 22.
Cf. the two fundamental decisions of the CJEU in cases C-215/99, Jauch [2001], I-01901, and, respectively, C-286/03, Hosse [2006], I-01771.
- 23.
The same applies to residence in Switzerland or an EEA State; the number of such benefit exports is low, however: on the key date of 31 December 2015 it applied to 628 persons, cf. Austrian Report on Long-Term Care Provision 2015 (Pflegevorsorgebericht 2015), p. 95.
- 24.
At present, this is regularly not the case.
- 25.
This also applies to European Union citizens; however, the relationship between EU coordination law and residence law is not sufficiently clear; cf., most of all the ruling in the case of 19 Sep 2013, C-140/12, Brey.
- 26.
Therefore, there is neither a connection with federal definitions of disability, which were in some cases even formulated only at a later stage, such as those in § 1 Para. 2 of the Austrian Federal Disability Act (Bundesbehindertengesetz, BBG: BGBl 1990/283 as last amended by BGBl I 2017/18, which translates as: “[…] impact resulting in a non-temporary physical, mental or psychological functional impairment or impairment of the sensory functions […] which may make participation in social life difficult. ‘Non-temporary’ denotes an estimated period of no less than six months.”), nor with similar definitions at individual state level that differ only in detail; cf. again Mayer and Pfeil (2012a), pp. 400 f.
- 27.
Thus, pursuant to § 1 Para. 3 EinstV, a guide value (that may exceed or fall below) 2 × 20 min applies for assistance required for getting dressed and undressed, and pursuant to Para. 4 leg. cit. a minimum value of 2 × 25 min (that may, where a special need arises, also be exceeded) applies for daily body care.
- 28.
Provision with food, medication and commodities of daily life; cleaning of the home of the patient and of personal effects; washing of underwear and bed linen; heating of the main living quarters including the provision of heating material; as well as mobility assistance in the further sense (= activities outside the home).
- 29.
Only for children up to the age of 15, a mobility assistance in the broader sense can be taken into consideration, which will amount to a maximum of 50 h per month (§ 2 Para. 4 EinstV). This is to address the special requirement for assistance through another person with a view to doctor’s visits, therapy sessions or the way to school.
- 30.
General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG), BGBl 1955/189 as last amended by BGBl I 2017/151.
- 31.
Sentence 2 of this provision reads: “The health treatment is, to the furthest extent possible, to restore, strengthen or improve the patient’s health, capacity for work and the ability to carry out the most vital personal needs”.
- 32.
This is to compensate the effects of fluctuations within the year.
- 33.
This applies in accordance with § 7 EinstV if the long-term care schedule cannot be complied with due to the particularity of the disability, and if the care measure must be provided without delay.
- 34.
The originally intended automatic adjustment of care allowance was cancelled already in 1996. Ever since, only two ad-hoc adjustments have been effected (2005 and 2009), meaning that the care allowance has experienced a considerable loss in value.
- 35.
As per December 2016, Die österreichische Sozialversicherung in Zahlen, 39th edn., p. 29.
- 36.
A simple therapeutic appliance could mean, for instance, medical slippers or a walking stick; other appliances to be considered could be a nursing bed, a stair lift or even (with a view to mobility assistance in the further sense) a transport service for persons with disabilities.
- 37.
Cf. § 12 Para. 1 Z 1 BPGG, but see also exceptions in Para. 3 of this provision.
- 38.
Accordingly, dressing changes or therapeutic measures on children (e.g. Bobath) are not relevant with regard to long-term care benefits; the administration of insulin or heparin shots, however, or tube feeding via a PEG tube are to be considered in the assessment of long-term care needs according to BPGG.
- 39.
This means “active” wheelchair users, which does not include users who can be moved with the aid of other persons only (i.e. “passive” wheelchair users).
- 40.
For more details see meanwhile the specific provisions under the Kindereinstufungsverordnung (BGBl II 2016/236).
- 41.
This prohibition of reducing the level of protection is reached by the obligation to “irrevocably recognise” the claim to benefits once it has been admitted by means of an official decision, cf. § 71 Para. 2 of the Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz ASGG, BGBl 1985/104 as last amended by BGBl I 2016/44).
- 42.
The last year during which specific responsibilities were assigned to an authority, in this case to the Federal Social Office, which is responsible for smaller groups of persons, was 2013.
- 43.
In 2016, this reimbursement amounted to € 2.359 million, of which € 2.313 million were spent on care allowances; Die österreichische Sozialversicherung in Zahlen, 39th edn., p. 27.
- 44.
The terminology of PFG does not necessarily coincide with that contained in the legal provisions of the respective Austrian state. Yet, since the definitions refer to binding provisions on a nationwide basis for the granting of targeted contributions paid by the State to the individual federal states, they are also deemed to be appropriate as the common foundation in the context at hand.
- 45.
See below Sect. 3.2 for benefits that also come into question in terms of targeted contributions in the context of case and care management schemes pursuant to § 3 Para. 1 Z 5 and Para. 9 PFG.
- 46.
As part of the introduction of a needs-based guaranteed minimum income, which has basically replaced the previous benefits (especially cash benefits) securing the basic subsistence in the context of social assistance, some federal states have effected a distinction between the guaranteed minimum income and social assistance benefits (particularly for persons dependent on long-term care); other states have taken integrative measures with a view to both theses areas within the framework of a comprehensive law on a guaranteed minimum income, cf. for more detail Mayer and Pfeil (2012b), pp. 265 f.
- 47.
Summarised in BMASK (ed.), Österreichischer Pflegevorsorgebericht 2015 (2016) pp. 117 et subseq. As data are not always comparable without condition, the amounts listed in the table should only be understood as approximate values.
- 48.
I.e. full/gross expenditures minus contributions and co-payments, in €.
- 49.
What is more, the procedural principle of discretion—a common element in social security law—leaves the authority with a broad scope as regards the selection of granted benefits, as the law regularly obliges the authority to provide coverage for needs (merely) in a rather abstract manner.
- 50.
Any potential legal protection would also be treated under separate terms: Appeals against legal decisions on long-term care benefits in kind are not to be treated by the social courts (who are actually in charge of granting long-term care allowance) but by means of successive stages of administrative appeals which have, so far, been treated by higher-ranking federal state authorities and, at most, by the Supreme Administrative Court, and which would as of 2014 generally be the responsibility of the newly established administrative courts of the various federal states.
- 51.
Its Art. 3 Para. 4 requires that “social aspects be taken into account” when it comes to levying co-payments.
- 52.
The listed figures show that on average, in comparison to inpatient services, mobile services are resorted to by twice as many persons.
- 53.
Already for the lower care levels and in nursing homes with an inexpensive cost structure, the expenses amount to a minimum of € 3000 per month.
- 54.
Since no further inheritance tax or capital tax is levied in Austria, seizure of a person’s assets is—only in the case of neediness or personal hardship—particularly disputed; cf. only Pfeil (2013), pp. 83 ff.
- 55.
Z 3 of this regulation contains a further exemption from the obligation for relatives to make co-payments if they are entitled to care allowance corresponding to care level 3 or higher.
- 56.
Austrian Unemployment Insurance Act (Arbeitslosenversicherungsgesetz), BGBl 1977/609 as last amended by BGBl I 2017/38.
- 57.
For greater detail, see Pfeil W J in: Mosler et al. (2015), §§ 17, 18a, 18b bzw 77 ASVG.
- 58.
In this connection, reference must also be made to the possibility as of 2014 to suspend one’s employment for one to three months (“Pflegekarenz”, i.e. care leave) due to care obligations for a close relative (which is, however, not a claim enforceable from the employer), or to arrange for a reduction of working hours for the same period (“Pflegeteilzeit”, i.e. part-time work for care purposes), cf. §§ 14c and 14d of “Arbeitsvertragsrechts-Anpassungsgesetz”, i.e. the Austrian law amending the labour contract law (AVRAG, BGBl 1993/459 as last amended by BGBl I 2017/30), concerning this see also below Sect. 3.5.
- 59.
zu ergänzen.
- 60.
Cf. § 1 Z 6 “Ausländerbeschäftigungsverordnung” (i.e. regulation of employment of foreigners), BGBl 1990/609 as last amended by BGBl II 2017/257.
- 61.
Since 2014 also this restriction on the freedom of movement has ceased to apply.
- 62.
De facto it is, however, unlikely that such claims have been asserted.
- 63.
This is especially due to labour law entitlements to continued remuneration on account of illness or holidays, restrictions on working time, regulations on minimum wages, and employer contributions to social insurance.
- 64.
Health and nursing care personnel had, already previously, been authorised to work on a self-employed basis (cf. § 35 GuKG).
- 65.
Cf. only Pfeil (2008), pp. 95 ff.
- 66.
Cf. Krispl (2011), p. 47; according to BMASK, about 44,200 active trade licenses are currently registered with respect to the provision of personal care.
- 67.
The following title is symptomatic of this dilemma: “Der Betreuer pflegt (nicht)”, cf. Pruckner (2008), pp. 4 ff.
- 68.
- 69.
- 70.
According to the model on which the HBeG is based stating that 2 weeks of work are to be followed by 2 weeks of free time so that continuous care is generally guaranteed by two persons.
- 71.
By comparison, the average old age pension from the pension insurance amounted to a gross total of € 1,254 at the end of 2016 (Die österreichische Sozialversicherung in Zahlen, 39th edn., p. 19).
- 72.
The requirement and development plans obligatory for the provinces in line with the Long-Term Care Agreement of 1993 were doubtlessly entered into with ambition, but in some cases were subsequently merely perpetuated or “adjusted” to the budgetary possibilities.
- 73.
That this responsibility now concentrates on the pension insurance providers is deemed sensible in administrative and financial regards, but will not ease the mentioned “problem of uniformity” as it is difficult to see why a pension insurance institution should be the “right” provider of benefits and services for children or gainfully employed adults in need of care due to an impairment.
- 74.
While in the westernmost federal state of Vorarlberg more than 32% of the recipients of care allowance use professional services at least occasionally, only 13% do so in the easternmost state of Burgenland, cf. Österreichischer Pflegevorsorgebericht 2015, p. 39.
- 75.
Also for such offers, care allowance provides targeted support from the care fund; according to Art. 3 Para. 9 this includes: “services 1) regarding social, support and long-term care planning on the basis of an individual needs assessment, 2) regarding the organisation of the necessary support and long-term care services and 3) of interface management”.
- 76.
Cf. Österreichischer Pflegevorsorgebericht 2015, pp. 119 et subseq.
- 77.
The “care(!) fund” thus aims at “safeguarding and improving the provision of needs-based services to persons dependent on long-term care…by means of offering needs-oriented and affordable assistance and long-term care services” (cf. Art. 1 Para. 2 Z 1 PFG).
- 78.
Cf. again Krauskopf (2012), pp. 359 ff.
- 79.
Salzburger Landesgesetzblatt 2000/52 as last amended by LGBl 2015/47.
- 80.
Some major charitable organisations (like the Red Cross or Caritas) have concluded their own collective agreements. The other providers of care and long-term care services (and hence—due to the “outsider effect” established under Art. 12 of the Austrian Labour Constitutional Act [ArbVG, BGBl 1974/22 as last amended by BGBl I 2017/104] also the persons employed by them) are either directly covered by the collective agreement (KV) concluded by their employers’ association “Sozialwirtschaft Österreich” (in short BAGS-KV); or—as in the case of the remaining employers of that sector—the regulations of this collective agreement become generally binding through the official declaration of this KV under Art. 18 ArbVG.
- 81.
In the short term—as already in other areas—only the coverage of family caregivers of a person entitled to benefits according to care level 3 was to be extended also to persons entitled to lower care allowance levels if these persons suffer from dementia or similar diseases.
- 82.
In this context it must be noted that care allowance is neither subject to income tax nor is it counted as part of the recipient’s income, but that it is generally indeed taken into account with respect to the caregiver, even in the case of a close relative, thus reducing or excluding a possible entitlement to benefits from the means-tested minimum income scheme, for example.
- 83.
A means-test, also in view of the economic situation, would generate a considerable administrative burden with such funds being much better invested in an effective improvement of the long-term care situation. For investment of assets see also Sect. 3.6 below.
- 84.
While, according to Art. 14c and Art. 14d AVRAG—dependent on the employer’s agreement—there is only the possibility of a temporary release from employment contract-related duties or of a reduction of working hours together with a corresponding loss of income, Art. 29 and Art. 30 of the Unemployment Insurance Act (AlVG) provide for a subsidiary entitlement to the coverage of these persons within health and pension insurance.
- 85.
For instance, by benefitting from a re-imposed, targeted inheritance tax instead of dubious social obligations to pay compensation, which only exist towards persons who have become victims of a stroke of fate and who are often socially vulnerable.
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Pfeil, W.J. (2018). Benefit Structures for Persons Dependent on Long-Term Care in Austria. In: Becker, U., Reinhard, HJ. (eds) Long-Term Care in Europe. Springer, Cham. https://doi.org/10.1007/978-3-319-70081-6_2
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