12 October 2018 / Mag. Markus PEIER
Case law: Inadmissibility of the care regress

12. Oktober 2018 / Mag. Markus PEIER
In 2017, the abolition of the nursing regress was decided. Access to the assets of persons admitted to residential care institutions, their relatives, heirs and recipients of social assistance to cover the costs of care is prohibited.
The social assistance laws of the Länder oblige recipients of social assistance, inter alia, to reimburse the costs incurred by the recipient of social assistance. Claims for compensation were also possible against relatives, heirs and recipients of gifts.
Ab 1. Jänner 2018 ist es den Ländern allerdings aufgrund einer neuen Verfassungsbestimmung untersagt, diese Ersatzansprüche geltend zu machen. Laufende gerichtliche und verwaltungsbehördliche Verfahren zur Geltendmachung der Ersatzansprüche sind einzustellen. Insoweit Landesgesetze dem entgegenstehen, treten die betreffenden Bestimmungen außer Kraft.
However, it was unclear what exactly was meant by “proceedings in progress” and what effects the new legal situation would have on mortgaging rights incorporated in the land register to cover the costs of care.
In a decision dated April 30, 2018, the Supreme Court ruled that the term “proceedings in progress” means proceedings in which an obligation to pay compensation has not yet been legally established at the relevant time. In any event, proceedings in which there is no final decision by an ordinary court on the defendant’s obligation to pay compensation must be discontinued.
Decision of OGH 1 Ob 62/18 a of 30. 4. 2018.
In its decision of 10 October 2018, the Constitutional Court followed up and ruled that access to the property of persons admitted to inpatient care facilities, their relatives, heirs and In any event, recipients of social assistance to cover care costs – even if there is a final decision made before 1 January 2018 – are not admissible.
Decision of the VfGH E 229/2018-17 of 10 October 2018.