Legislation on Disability Politics in Germany

Legislation on Social Security and Inclusion of people with disability in Germany

As Germany ratificated the UN convention on the Rights …, accepted and promoted the EU non-discimination Regulations, people with disability have now a constitutional guarantee against any form of discrimination (Article 3 (3) of the “Grundgesetz” Federal Fundamental Law – our constitution)

Nevertheless, the living situation of people with disability is considerable disadvantaged against a national average. The Federal Report on Living Situations, often called “Poverty report” 2008 shows that very clearly (figures and dates to be added). All the checks and balances of our social system have not been able to prevent such a situation.

The “German way” in this issue consists firstly of compensation of disadvantages p.e. via employment quota, free or subsidized transport, reduced entrance fees or support in school. For getting this compensation, a person must have a special certificate (“Schwerbehindertenausweis”) which exists in some steps and groups (p.e. blind and deaf persons, people with walking handicap …) and is acquired via a mostly medical certification. The employment quota means that any employer with more than … employees has to employ more than 5% of persons with a disability. Otherwise he has to pay a fine (“Ausgleichsabgabe”) which is used by the federal and regional governments to fund special services or the modernisation of training centres, special workshops … An employer might also chose to “buy himself off” this fine by buying products produced in the special workshops for people with disabilities (Werkstatt für Menschen mit Behinderungen) mentioned later.

To avoid unemployment of a disabled person, the German system has special rules when an employers thinks about giving notice to one of them. There are special commissioners in larger enterprises to be referred to and authorities have to be informed in advance. Services and councelling are offered. Nevertheless, practice shows that persons with disabilities are more often hit by unemployment then others.

When an adult’s disability (and with it, difficulty to find employment) is the result of a disease, an accident or psychic problems, the key of the German system is a framework of rehabilitation services funded mostly by the branches of the compulsory social security system, where nearly all employed persons are members. There are some differences but in general these social insurances will organize and cover the treatment, medical and vocational rehabilitative measures declared necessary by specialized doctors until the person is able to come back to work, perhaps on another adapted workplace or in another profession. He or she might even be trained to do a job-switching (“Umschulung”) at a Berufsförderungswerk institution (a first-training of such sort would be in a “Berufsbildungswerk”). These processes might take many months, even years or may be a life-long process if continual care and assistance services are required. The insurances will probably cover these costs, too, when the person in able to work again. This system is called “rehabilitation before pension”, as especially the pension insurances have a lively interest to pay for almost any induced treatment and rehabilitation instead of paying a life-long pension. Clinics, rehabilitation units, care serviced etc. are mostly private NGOs, some for profit, some non-profit. The insurances make treaties with them on some quality standards and about the price they pay per day, hour, month …

If it is not possible to return to any work again, there will be a pension (Erwerbsunfähigkeitsrente). But this will cover average living expenditures only when a person had worked many years before his accident etc. Else, it is only a small amount.

The most important question at this stage is whether a person in able to work 3 hours aq day under “normal” conditions of the labour market. If this is the case but he/she is unemployed, a Basic Security Amount (Grundsicherung) and a suitable amount of rent, heating … will be paid to secure a minimum subsistence level. Here, the Social Insurance against the Unemployment Risk and the municipalities work together in special branches of administration (family members are referred to this system, too, if they have no income of their own). Among these Basic Security Receivers for Unemployed there are many persons with (often psychic) disabilities, certainly aggraviated by longer periods of fruitless looking for jobs. The Basis Security is only given when necessity is clearly stated (no other income, no other resources), when the person and the family members oblige in cooperation by taking every suitable job, even when paid worse than the last one, being in a remote place, or being a “work opportunity” only paid with a premium in addition to the Basis Security payments..

Persons who loose their capacity to work these 3 daily hours very early (and rehabilitation efforts are fruitless) or were never able to do it (often the case with a mental or multiple disability) fall under another system, which is the welfare sector managed by the municipalities. Here is another, even stricter check of the running income as well the overall resources. Persons with such a disability normally have no high income, but might be heirs of houses or other “fortunes”, which might in the end be confiscated by the welfare provider. There are rules after which relations and partners might be taken into account, too, with certain levels or general exceptions (so, parents of children with a disability are spared this under normal circumstances – municipalities have a field of decision here)

The welfare system will provide some special services, p.e. a place in a special workshop for persons with disability during a working life. Therefore he/she must be able to generate a “minimum of economically worthwhile results” (there is a special placement procedure for these institutions, which includes specialists of the Social Insurances, unions and employers organisations). If even this level is to high, there might be a placement in a Day Care (Promoting) Centre, where mostly “occupational” work will be offered, which an employer could not sell to the market but might give away for entice donations.

A person who could not be cared and assisted at home might be placed in a living institution with structural quality necessary to cover the needs. There are institutions with or without a professional night service, with or without a whole-day occupation program, with or without medical or nursing supervision. The question whether a person should or shan’t be placed in the elderly peoples care institution is often difficult to decide and results in many conflicts betweens persons, service providers and the welfare administration.

In general the rule is “home service first, institution care later” (“ambulant vor stationär”), which means that no person shall be placed in a living institution as long as there is some chance to live with its family, independently or in a living community setting. But the welfare administration might choose to place him/she in the institution if the costs of independent living assistance are “unreasonable” higher than the day-to-day costs of the institution.

As a person who lives independently often gets money and services from different branches of the social security and welfare system, there are a) special councelling units and b) the possibility to receive a lump sum money instead of multiple services and smaller amounts (“persönliches Budget”). This might cover some minor payments for transport or equipment needed for work, but could be brought to bear in case of living costs and special placement, too. Both structures are new and not well used – disabled persons fear a system of cut-backs behind these offers and the administrations are still not used to cooperate between each other.

Today discussion in Germany goes mostly about problems in the education area. It is noticed that (too) many children with disabilities do not join the “normal” nurseries or schools but are, with parents consent, placed in special “promoting” facilities and schools. In spite of all the promoting and special treatment done there, only a small number reaches a school result which qualifies for study or regular vocational training. From such a “promoting school” the career to enter one of the Special Workshops mentioned above seems a foregone conclusion even for “easy cases” of mental (learning”) disability. It is said that inclusive education is to be stressed against “promotion” in special Institutions and that the Special Workshops should at least partly be replaced by adapted workplaces in regular enterprises or offices. On the other hand, living conditions seems to cause many “behaviour-related” disabilities by children and young persons which are heavily growing in numbers and make integration in regular school or training institutions difficult. Another task is to inform and include the growing number of disabled person with migration background.



Notabene some facts form history: During Nazi Rule 1933-45 several generations of persons with disabilities were murdered. Only nowadays the „demographic structure“ of people with disabilities begins to look „normal“ again. Up to some years ago, there were very few people grown old with a disability.
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In the sixties due to a pharmacy scandal (sleeping pill „Contergan“) a large number of kids with multiple disabilities were born. This was a strong impulse to reform a system up to then designed mostly for war and traffic invalidity cases.

Big institutions with hundreds, sometimes thousand or more placements were (mostly) closed during the 1980ies. In these institutions, persons with mental and psychic disabilities had to live together with p.e. elderly people with dementia, people in security placement after jail or simple homeless persons, without specific formation. In Bremen, many of them are now cared for in small homes inside the city or by ambulant services in assisted living

Today, medical possibilities of perinatal inspection and selection of unborn persons are seen by many people as a new threat against the right of persons with disability to live.