1Bund und Kantone richten Ergänzungsleistungen aus an Personen, deren Existenzbedarf durch die Leistungen der Alters-, Hinterlassenen- und Invalidenversicherung nicht gedeckt ist.
2Das Gesetz legt den Umfang der Ergänzungsleistungen sowie die Aufgaben und Zuständigkeiten von Bund und Kantonen fest.
Overview
Art. 112a BV jointly obliges the Confederation and the cantons to provide supplementary benefits. These supplement old-age and disability insurance pensions when they do not fully cover subsistence needs. The provision dates back to 1972 and was fundamentally revised with the new federal fiscal equalisation system (NFA).
Supplementary benefits are intended for persons who receive an old-age or disability insurance pension but still do not have enough money to live on. This primarily affects elderly people and people with disabilities whose pensions are too low. Unlike social assistance, those affected do not have to exhaust all their assets. Supplementary benefits cover the entire subsistence need – that is, everything necessary for a life of human dignity.
The legal consequences are significant: Art. 112a BV creates a binding constitutional mandate. The Confederation regulates the details in the Supplementary Benefits Act (ELG). The cantons must ensure in implementation that subsistence needs are fully covered. The Federal Supreme Court has repeatedly held that cantons may not abuse their discretion to undermine subsistence security.
Example: A 75-year-old pensioner receives 1,800 francs per month in old-age insurance pension. Her housing costs amount to 1,200 francs, her other living costs 800 francs – in total she needs 2,000 francs per month. The supplementary benefit of 200 francs closes the gap between pension and subsistence need.
The constitutional significance of supplementary benefits lies in their systematic position between social insurance and social assistance. According to Gächter/Filippo, they form an independent system of the first pillar that can be assigned neither to social insurance in the narrow sense nor to social assistance. Carigiet/Koch emphasise that supplementary benefits are intended to prevent old-age and disability insurance pensioners from becoming dependent on social assistance. Case law has confirmed this purpose: supplementary benefits serve complete subsistence security and take priority over social assistance.
Locher/Gächter characterise supplementary benefits as means-tested but not needs-dependent benefits. Unlike social assistance, they are not subsidiary to private support. Dummermuth points out that constitutional entrenchment protects supplementary benefits from short-term austerity measures. However, the SB reform of 2021 shows that even constitutionally entrenched benefits can be subject to political changes.
Art. 112a FC — Supplementary Benefits
#Doctrine
#1. Legislative History
N. 1 Art. 112a FC was introduced by the popular mandate on the reform of fiscal equalisation and the reallocation of tasks between the Confederation and the cantons (NFA) and entered into force on 1 January 2008. Previously, the constitutional basis for supplementary benefits (SB) was enshrined in Art. 112 para. 6 FC (repealed) and in the transitional provision Art. 196 no. 10 FC. The old system obliged the Confederation to make contributions to the cantons for the financing of SB for as long as OASI/DI did not cover the subsistence needs of pensioners — a subsidy system. The NFA reform replaced this with a benefits statute imposing direct obligations on the Confederation and the cantons (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3057).
N. 2 In the Dispatch of 14 November 2001 on the NFA (BBl 2001 2291), it was stated that the Confederation would be primarily responsible for SB, i.e. for securing subsistence, while the cantons, in addition to contributing to this, would assume full responsibility for those areas of SB relating to residential care or health costs. The character of SB was not to be «changed compared to today»; no social assistance entitlements were to be created (BBl 2001 2436, section 6.1.5.3.3). In the Dispatch of 7 September 2005 on the implementing legislation (BBl 2005 6029), the funding formula was specified: subsistence secured to 5/8 by the Confederation and to 3/8 by the cantons; reimbursement of illness and disability costs to be borne entirely by the cantons (BBl 2005 6223, section 2.9.8.1.6).
N. 3 The constitutional article itself was put to the popular vote of 28 November 2004 on the basis of the Federal Decree of 3 October 2003 (Federal Decree of 3 October 2003, Federal Council Resolution of 26 January 2006) and was accepted by a clear majority. The implementing Federal Act (SBA, SR 831.30) also entered into force on 1 January 2008, simultaneously with the Federal Act of 6 October 2006 on the Creation of Enactments under the NFA (AS 2007 5779).
#2. Systematic Classification
N. 4 Art. 112a FC belongs to the 8th section of Chapter 3 («Social objectives and social insurance», Art. 111–117 FC) and functions as an independent competence norm within the framework of the federal social insurance order. It is to be distinguished from Art. 112 FC (OASI/DI): whereas Art. 112 governs independent social insurance benefits, Art. 112a FC creates a catch-all and supplementary mechanism for persons whose subsistence needs are not covered despite those insurance benefits (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 2416).
N. 5 The provision is not a fundamental rights norm but a competence norm with a welfare-state purpose: it establishes a joint jurisdiction of the Confederation and the cantons to pay SB and delegates the regulation of their scope and the allocation of responsibilities to the legislature (para. 2). Unlike the social objectives under Art. 41 FC, which do not create a subjective right, Art. 112a FC contains at least in principle a mandate to provide benefits directed at the Confederation and the cantons. → Art. 41 FC, → Art. 112 FC.
N. 6 Art. 112a FC is closely linked to Art. 112 para. 2 lit. b FC, under which OASI/DI pensions must «adequately» cover subsistence needs. Art. 112a FC intervenes where this constitutional entitlement is factually not met. Supplementary benefits thereby close the gap between the subsistence-securing mandate of social insurance law and the actual needs of recipients. ↔ Art. 112 para. 2 lit. b FC.
#3. Elements of the Provision / Normative Content
N. 7 Para. 1 contains a mandate to provide benefits comprising three constituent elements: (1) the parties obliged to perform are the Confederation and the cantons jointly; (2) the beneficiaries are «persons» without further specification — the concrete definition of the circle of eligible persons (in particular the requirement of domicile and residence, and the link to OASI/DI) is reserved for the SBA; (3) the triggering condition is the failure of OASI/DI benefits to cover «subsistence needs».
N. 8 The term «subsistence needs» is an indeterminate legal concept that is given concrete content by the SBA (Art. 9 et seq. SBA). The Federal Supreme Court has clarified that this concept must be interpreted in light of the constitutional objective of SB: the aim is to secure the necessary means of subsistence, both for persons living at home and for those in residential care with regard to basic needs (BGE 138 V 9 E. 4.2; judgment 9C_376/2009 of 30 October 2009 E. 6). Tax deduction mechanisms that are «totalement étrangers» to this objective may not be incorporated into the SB calculation, as this would contradict the purpose of securing subsistence.
N. 9 The joint responsibility of the Confederation and the cantons (para. 1) is a distinctive feature of Swiss social insurance law. Art. 13 SBA governs the funding formula: the Confederation bears 5/8 of the annual SB covering general living costs and rent (para. 1); residential care costs as well as illness and disability costs are borne entirely by the cantons (BBl 2005 6223). This formula is a direct result of the NFA task unbundling (BGE 139 V 358 E. 4.1–4.2).
N. 10 Para. 2 contains a statutory reservation: the law determines the scope of SB and the tasks and responsibilities of the Confederation and the cantons. This reservation is significant in two respects: first, it precludes a direct constitutional entitlement of the individual to a specific level of SB. The Federal Supreme Court has expressly held: «No direct entitlement can be derived from Art. 112a FC, since the constitutional provision expressly states that the law determines the scope of supplementary benefits» (judgment 9C_822/2009 of 7 May 2010 E. 3.6). Second, it authorises the legislature to regulate the Confederation-canton relationship in a differentiated manner.
N. 11 The statutory reservation in para. 2 authorises the federal legislature to delegate norm-setting powers to the Federal Council (cf. e.g. Art. 9 para. 5 lit. h SBA: delegation basis for the definition of residential homes in Art. 25a SBO). The Federal Supreme Court reviews such ordinance provisions for compliance with statute and — to the extent that the legislature has not authorised the Federal Council to deviate from the Constitution — for constitutionality; a restrained review applies in the case of broad delegations (BGE 139 V 358 E. 4.4).
#4. Legal Consequences
N. 12 Art. 112a FC gives rise at the constitutional level to a mandate to provide benefits directed at the Confederation and the cantons, but not to a directly enforceable subjective right of the individual. The establishment of individual entitlements occurs exclusively through the SBA. This two-tier structure — constitutional mandate and statutory implementation — is structurally comparable to other social insurance guarantees, but differs from genuine fundamental rights under Art. 7–34 FC (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.).
N. 13 The constitutional provision binds the legislature in substantive terms: it may not shape the scope of SB in such a way that the purpose of securing subsistence — the central constitutional objective of para. 1 — is systematically defeated. This has practical significance: the Federal Supreme Court affirms the binding force of the SBA pursuant to Art. 190 FC, but leaves open whether the constitutional drafter intended the objective of securing subsistence to mean that eligible persons should in principle not be dependent on social assistance (BGE 143 V 9 E. 6.2). → Art. 190 FC.
N. 14 As regards cantonal legislation, it follows from the interplay of Art. 112a FC and the SBA that the cantons have limited regulatory discretion in setting residential care rates and similar ceilings: in the case of recognised nursing homes (Art. 39 para. 3 HIA), they are obliged by Art. 10 para. 2 lit. a SBA to prevent dependence on social assistance; in the case of other establishments, no such obligation exists under federal law (BGE 143 V 9 E. 6.1). Cantonal norms that deliberately set daily rates at a low level and thereby accept social assistance dependence may in individual cases be found to be contrary to federal law in the case of nursing homes and be disapplied in proceedings of concrete norm review (Cantonal Court of Lucerne, judgment 5V 18 163 of 15 January 2020).
#5. Contested Issues
N. 15 It is disputed whether Art. 112a para. 1 FC contains a subjective fundamental right or merely an institutional mandate to provide benefits. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3057) classify Art. 112a FC as a competence norm with programmatic content and deny the existence of a justiciable subjective right. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 2416) emphasise the mandate to provide benefits directed at the Confederation and the cantons without attributing subjective legal effect to it. The Federal Supreme Court has aligned itself with this position: no direct entitlement «can be derived from Art. 112a FC» (judgment 9C_822/2009 E. 3.6). This consistent case law leaves no room for a constitutionally direct claim to a specific level of SB.
N. 16 The relationship between the constitutional mandate to secure subsistence and the legislature's freedom to regulate is also contested. The Federal Supreme Court expressly left open in BGE 143 V 9 E. 6.2 whether Art. 112a para. 1 FC secures the entitlement to subsistence to the extent that eligible persons should in principle not be dependent on social assistance. The older case law — in particular BGE 130 V 185 E. 4.3.3 and BGE 127 V 368 E. 5a — had still answered this in the affirmative by reference to the former Art. 112 para. 6 FC and Art. 196 no. 10 FC. Whether this principle continues to apply after the transfer into ordinary law (Art. 112a FC) and following the NFA reform has not yet been conclusively decided by the Federal Supreme Court.
N. 17 A further contested issue concerns the scope of cantonal discretion in setting residential care rates. Part of cantonal jurisprudence, in particular the Cantonal Court of Lucerne (judgment 5V 18 163 of 15 January 2020), has held that deliberately low daily rates for recognised nursing homes violate federal law, even though Art. 10 para. 2 lit. a SBA grants the cantons an option to impose ceilings. The Federal Supreme Court, by contrast, has expressly held with respect to non-nursing homes that the constitutional permissibility of such a regulation is established (Art. 190 FC; BGE 143 V 9 E. 6.2). The precise constitutional lower limit for cantonal residential care rates thus remains an unresolved point of contention between the objective of avoiding social assistance dependence and cantonal autonomy.
#6. Practical Notes
N. 18 Direct applicability: Art. 112a FC is not directly applicable in the sense of a provision ready for enforcement. Disputes over SB entitlements are always based on the SBA and the associated ordinances (SBO, SR 831.301). An appellant relying solely on Art. 112a FC will not be heard on that basis (judgment 9C_822/2009 E. 3.6). Art. 12 FC (right to basic subsistence) remains a subsidiary emergency provision where SB and social assistance together do not cover basic needs.
N. 19 Standard of interpretation: Art. 112a para. 1 FC serves as a constitutional standard of interpretation for the SBA. The Federal Supreme Court invokes it to exclude tax deductions from the SB-relevant rental value where these contradict the objective of securing subsistence (BGE 138 V 9 E. 4.2, 4.4). Equally, the constitutional mandate prevents an interpretation of the SBA that determines the circle of eligible persons according to extraneous criteria (e.g. purely tax-law duration-of-owner-occupancy discounts).
N. 20 Exhaustive regulation: The SBA exhaustively regulates the catalogue of expenditure items (Art. 10 SBA) and the catalogue of income items (Art. 11 SBA). Cantonal or individual additions outside this framework are not permissible. Cantons may pay additional benefits only on the basis of explicit delegation provisions in the SBA (judgment 8C_140/2008 of 25 February 2009 E. 7.2, published in SZS 2009 406; judgment 9C_822/2009 E. 3.3).
N. 21 SB Reform 2021: The Federal Act of 22 March 2019 (SB Reform, AS 2020 585; BBl 2016 7465), in force since 1 January 2021, substantially revised the SBA (asset threshold, imputation of income, maximum rent amounts) without affecting the constitutional basis of Art. 112a FC. The constitutional principles established in the case law of the Federal Supreme Court remain authoritative.
N. 22 Coordination with Art. 12 FC: In extreme situations where neither SB nor social assistance covers absolute basic needs, Art. 12 FC (right to assistance in situations of need) may be invoked as the ultimate safety net. The legislature expressly noted in the NFA Dispatch that SB and social assistance must not be conflated (BBl 2001 2436). The relationship between the two provisions is therefore to be understood such that Art. 12 FC only applies once the entitlement under Art. 112a FC in conjunction with the SBA has been exhausted. → Art. 12 FC.
Case Law
#Principles of the Constitutional Mandate
#Constitutional Mandate for Securing Subsistence
BGE 139 V 358 of 26 June 2013 (para. 2.1) Landmark decision on the constitutional foundation of supplementary benefits. The Federal Supreme Court clarifies the constitutional basis of supplementary benefits following the NFA reform.
«According to Art. 112a Federal Constitution, the Confederation and the cantons provide supplementary benefits to persons whose subsistence needs are not covered by old-age, survivors' and disability insurance benefits (para. 1). The law defines the scope of supplementary benefits and the duties and responsibilities of the Confederation and the cantons (para. 2).»
9C_51/2013 of 26 June 2013 (para. 2.1) Relationship between Art. 112 para. 2 lit. b Federal Constitution and Art. 112a Federal Constitution. The decision establishes the systematic connection between the two constitutional provisions.
«According to Art. 112 para. 2 lit. b Federal Constitution, old-age, survivors' and disability insurance pensions must adequately cover subsistence needs. According to Art. 112a Federal Constitution, the Confederation and the cantons provide supplementary benefits to persons whose subsistence needs are not covered by old-age, survivors' and disability insurance benefits (para. 1). The law defines the scope of supplementary benefits and the duties and responsibilities of the Confederation and the cantons (para. 2).»
#Purpose of Supplementary Benefits
9C_36/2010 of 7 April 2010 (para. 4.7) Securing subsistence as the purpose of supplementary benefits. The decision confirms the constitutional purpose of supplementary benefits.
«Supplementary benefits are provided to cover the subsistence needs of beneficiaries (Art. 112a Federal Constitution). From this purpose, it cannot be derived that the concept of dentist costs should be interpreted restrictively.»
#Definition of Care Homes and Forms of Accommodation
#Definition of Care Home
BGE 139 V 358 of 26 June 2013 Definition of care home according to Art. 25a para. 1 SBO in light of Art. 112a Federal Constitution. Fundamental decision on the federal law-compliant definition of care homes following the NFA reform.
«The definition of care home in Art. 25a para. 1 SBO is compliant with federal law. Whether a care home stay within the meaning of supplementary benefits law exists is determined by whether an institution is recognised by a canton as a care home or has a cantonal operating licence. The case law under the former supplementary benefits law (BGE 118 V 142) is obsolete.»
9C_20/2013 of 26 June 2013 (para. 4.5) Obsolescence of former case law on care home definition. The decision clarifies that the new federal law regulation is exhaustive.
«The case law according to BGE 118 V 142 is obsolete due to the new federal law regulation. Interpreted according to wording, meaning and purpose and its underlying values, the regulation in Art. 25a SBO is constitutional and legal. When Art. 9 para. 5 lit. h SBLA provides that the Federal Council determines the definition of care home, it may delegate this competence to the cantons.»
#Foster Families and Care Home-like Institutions
9C_51/2013 of 26 June 2013 (para. 2.3) Delegation of care home definition to the cantons. Confirmation of cantonal competence for care home recognition.
«According to Art. 9 para. 5 lit. h SBLA, the Federal Council determines the definition of care home. On this - broad - delegation basis, it has regulated in Art. 25a para. 1 SBO that any institution recognised by a canton as a care home or having a cantonal operating licence is considered a care home.»
#Care Home Rates and Cantonal Limitation Possibilities
#Lucerne Cantonal Court Decision on Judicial Review
5V 18 163 of 15 January 2020 (Cantonal Court of Lucerne) Concrete judicial review for insufficient care home rates. Landmark decision on the review of cantonal daily rate setting.
«The deliberately low setting of daily rates for care home stays recognised as eligible expenditure for supplementary benefits by the Government Council leads to social assistance dependency in the Lucerne planning region sooner or later. This violates federal law. Therefore, the cantonal norm is not applicable in the case of an old-age pension recipient living in a care home (concrete judicial review).»
#Limits of Cantonal Discretion
BGE 143 V 9 of 13 January 2017 Scope of cantonal obligation in care home rate setting. The decision clarifies the limits of cantonal discretion for institutions other than recognised care homes.
«Art. 10 para. 2 lit. a SBLA does not oblige cantons to set daily rates for institutions other than recognised care homes under Art. 39 para. 3 HIA such that supplementary benefits recipients living there - as a rule - do not have to apply for social assistance. This limited scope of Art. 10 para. 2 lit. a SBLA can result in no entitlement to annual supplementary benefits and consequently also no entitlement to reimbursement of illness and disability costs. This must be accepted from a constitutional perspective (Art. 190 Federal Constitution).»
#Assessment of Assets
#Rental Value of Owner-occupied Properties
BGE 138 V 9 of 19 December 2011 Assessment of rental value of owner-occupied property for supplementary benefits. Fundamental decision on the correct calculation of assessable income from real estate ownership.
«Under supplementary benefits law, what must be assessed as income is not the reduced tax rental value of an owner-occupied property, but the uncut rental value determined according to cantonal tax law (subsidiarily: according to DFTA). The reference in Art. 12 para. 1 SBO encompasses only tax law principles, but not the - sometimes significantly differing - cantonal regulations regarding percentage taxation.»
#Building Maintenance Costs and Property Income
9C_822/2009 of 7 May 2010 Deduction of building maintenance costs from property income. The decision clarifies the modalities of deducting maintenance costs when assessing income.
The decision addresses the appropriate consideration of usufruct income and building maintenance costs in supplementary benefits calculation taking into account the constitutional mandate for securing subsistence.
#Attachment Protection and Coordination with Other Areas of Law
#Attachment Protection for Foreign Social Insurance Pensions
BGE 143 III 385 of 29 May 2017 Entitlement of a recipient of a Liechtenstein old-age pension to absolute attachment protection. The decision shows the coordination between supplementary benefits and attachment protection.
«The Liechtenstein old-age pension is in principle absolutely immune from attachment in Switzerland. Left open whether Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems is materially applicable to the question of attachment of foreign social insurance pensions.»
#Coordination with Other Social Insurances
#Relationship to Social Assistance
8C_138/2024 of 8 July 2025 Social assistance with parallel supplementary benefits receipt by partner. Recent decision on the delineation between supplementary benefits and social assistance for cohabiting couples.
The decision addresses the complex situation when only one partner receives supplementary benefits while the other depends on social assistance, and shows the constitutional limits of coordination.
#International Coordination
C-1393/2016 of 16 September 2016 (Federal Administrative Court) Supplementary benefits and international coordination. The decision addresses the prerequisites for supplementary benefits with international connections.
«Persons whose subsistence needs are not covered by old-age, survivors' and disability insurance may apply for supplementary benefits (cf. Art. 112a Federal Constitution), but this requires residence and habitual residence in Switzerland.»
#Recent Developments
#Supplementary Benefits Reform and Constitutional Compliance
ZL.2024.00023 of 27 March 2025 (Social Insurance Court of Zurich) Wheelchair allowance following the supplementary benefits reform. Recent decision on the constitutional application of the supplementary benefits reform.
«The recognised expenditure simultaneously defines the subsistence minimum which is to be secured through supplementary benefits (Art. 2 para. 1 SBLA, Art. 112a para. 1 Federal Constitution; cf. Message on the Amendment of the Federal Act on Supplementary Benefits to Old-age, Survivors' and Disability Insurance).»
#Cantonal Additional Contributions
810 23 127 of 31 January 2024 (Cantonal Court of Basel-Landschaft) Contestability of non-approval decisions for municipal additional contributions to supplementary benefits. The decision shows the limits of municipal discretion regarding supplementary benefits.
Recent case law shows that cantons are subject to legal constraints when designing additional benefits to constitutionally guaranteed supplementary benefits.