Persons in need shall be supported by their Canton of residence. The Confederation regulates exceptions and powers.
Art. 115 — Support for persons in need
#Overview
Art. 115 Cst. regulates which canton is responsible for supporting persons in need. The first sentence establishes that persons in need receive assistance from their canton of residence. The second sentence gives the Confederation the competence to regulate exceptions and responsibilities in greater detail.
Need exists when a person cannot cover their living expenses from their own resources. This encompasses both financial social assistance (money for housing, food, clothing) as well as personal assistance (care, nursing). The canton of residence is not always the canton where someone officially resides. The Federal Act ZUG regulates when a so-called «place of residence for assistance purposes» is established.
The canton of residence must support persons in need and bear the costs. It cannot shirk this obligation. Other cantons are generally not responsible, even if someone temporarily resides there. The Confederation regulates special cases, such as asylum seekers, Swiss nationals abroad, or placements in institutions in other cantons.
Example: A family moves from Basel to Zurich. After three months, the father becomes unemployed and the family needs social assistance. Zurich as the new canton of residence is responsible and must support the family. Basel does not have to pay anything.
The provision is purely a rule of responsibility between the cantons. It does not establish a direct entitlement to specific benefits. How much social assistance someone receives is determined by cantonal law. However, basic care in emergency situations is guaranteed by Art. 12 Cst.
Art. 115 Cst. prevents persons in need from being «passed around» between cantons. Every canton knows clearly when it is responsible. This protects both the affected persons and the cantons from unclear cost distributions.
#Doctrine
#1. Legislative History
No. 1 Art. 115 FC has its roots in the Federal Constitution of 1874, specifically in Art. 45 para. 3 oFC (prohibition on repatriation of Swiss citizens requiring assistance) and Art. 48 oFC (assistance by the canton of residence). The Message on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1, 355) notes that the provision continues the proven intercantonal jurisdiction arrangement in modernised form, without affecting the basic principle of assistance based on place of residence.
No. 2 With Art. 115 FC, the constitutional legislator deliberately sought to create a lean jurisdictional and conflict norm that establishes the basic jurisdiction of the cantons of residence and leaves the regulation of exceptions and jurisdictional issues to the Confederation. Gächter/Filippo emphasise that the historical development from the principle of origin to the principle of residence has thus found its constitutional conclusion (BSK BV, Art. 115 No. 1-8).
#2. Systematic Classification
No. 3 Art. 115 FC is systematically located in Title 3 (Confederation, Cantons and Communes), Chapter 5 (Participation of the Cantons in Federal Decision-Making), Section 2 (Powers). This placement underscores the primarily jurisdictional character of the norm. It is not a fundamental rights provision and does not — in contrast to → Art. 12 FC — establish individual entitlements to benefits.
No. 4 The close connection to → Art. 12 FC (right to assistance in situations of need) is nevertheless obvious: While Art. 12 FC regulates the «whether» and «what» of assistance, Art. 115 FC determines the «who» of jurisdiction. Further important cross-references exist to → Art. 41 para. 1 lit. a FC (social goal of social security), → Art. 112 ff. FC (social insurance) and → Art. 121 para. 1 FC (residence of foreigners).
#3. Constituent Elements / Content of the Norm
No. 5 Need is the central constituent element of Art. 115 sentence 1 FC. Gächter/Filippo define need as a state in which a person cannot or cannot in time cover their living expenses from their own means (BSK BV, Art. 115 No. 16-20). The concrete design of the concept of need falls to cantonal law, with the boundary lying at Art. 12 FC. Wizent specifies that need encompasses both economic and personal social assistance (Wizent, Die sozialhilferechtliche Bedürftigkeit, 2014, 45 ff.).
No. 6 The canton of residence within the meaning of Art. 115 sentence 1 FC is further defined by the Federal Act on Jurisdiction for the Assistance of Persons in Need (ZUG). Gächter/Filippo point out that the constitutional concept of canton of residence cannot be equated with the civil law concept of domicile under Art. 23 ff. CC (BSK BV, Art. 115 No. 21-23). Rather, the ZUG develops independent points of connection, particularly the assistance domicile under Art. 4 ff. ZUG.
No. 7 The federal jurisdiction under Art. 115 sentence 2 FC is characterised by Biaggini as exclusive federal jurisdiction (BSK BV, Art. 115 No. 14, cited according to Biaggini). The Confederation can thus conclusively regulate both exceptions to the principle of residence (for example for Swiss citizens abroad or asylum seekers) and intercantonal jurisdictional delimitation. Gächter/Filippo specify that this jurisdiction is exercised primarily through the ZUG and special legal regulations (AsylG, AVIG) (BSK BV, Art. 115 No. 9-15).
#4. Legal Consequences
No. 8 Art. 115 FC establishes an objective-legal jurisdictional obligation of the cantons. The competent canton of residence cannot evade its obligation to provide assistance once the requirements are met. However, this obligation is not directly justiciable — persons in need cannot assert claims to benefits based solely on Art. 115 FC (BGE 148 V 114 E. 5.2).
No. 9 The intercantonal cost distribution is governed by the territoriality principle: The canton of residence basically bears the full costs of assistance. Exceptions exist for temporary stays (hospital stays, care home placements) according to the regulations of the ZUG and intercantonal agreements such as the IVSE. Anderer emphasises the practical significance of these agreements for cost allocation in out-of-canton placements (Anderer, in: Häfeli, Das schweizerische Sozialhilferecht, 2008, 201 ff.).
#5. Disputes
No. 10 Scope of federal jurisdiction: While Biaggini characterises federal jurisdiction under Art. 115 sentence 2 FC as exclusive (BSK BV, Art. 115 No. 14), other authors take a more differentiated view. Häfelin/Haller/Keller/Thurnherr see room for supplementary cantonal regulations, as long as these do not collide with the federal jurisdictional system (Bundesstaatsrecht, 10th ed. 2020, No. 1845). Gächter/Filippo take a mediating position and emphasise that the cantons can certainly make detailed regulations within the framework of their organisational autonomy (BSK BV, Art. 115 No. 15).
No. 11 Relationship to social goals: The relationship between Art. 115 FC and → Art. 41 FC is controversially discussed. While Schmid understands Art. 115 FC as a pure jurisdictional norm without material content (Schmid, in: FS Murer, 2010, 757 ff.), Gächter/Filippo see in the norm also an implicit obligation to secure existence that goes beyond emergency assistance under Art. 12 FC (BSK BV, Art. 115 No. 24-25). Gysin mediates by interpreting Art. 115 FC as a jurisdictional concretisation of social goals (Gysin, Der Schutz des Existenzminimums, 1999, 89 ff.).
No. 12 Federal framework law: The creation of a federal framework law on social assistance has been discussed for years. Coullery advocates for moderate federal harmonisation of cantonal social assistance standards (ZeSo 2/2009, 24-25). Wolffers rejects this and emphasises the constitutionally anchored cantonal jurisdiction (Wolffers, Grundriss des Sozialhilferechts, 2nd ed. 1999, 45). The SKOS guidelines have established themselves as a factual but legally non-binding standard, as analysed by Hänzi (Hänzi, Die Richtlinien der SKOS, 2011, 125 ff.).
#6. Practice Guidelines
No. 13 Domicile clarifications are often complex in practice. In unclear circumstances, early contact with other potentially competent cantons is recommended. The procedure under Art. 28 ZUG (declaratory action before the Federal Supreme Court) should only be used as a last resort. Thomet points to the practical difficulties in determining the assistance domicile, particularly for persons without fixed residence (Thomet, Kommentar ZUG, 2nd ed. 1994, Art. 4 No. 15 ff.).
No. 14 Intercantonal coordination takes place primarily through the IVSE and bilateral agreements. Rüegg recommends proactive cooperation between cantonal social services to avoid jurisdictional conflicts (Rüegg, in: Häfeli, 2008, 323 ff.). For care home placements, early clarification of cost approval is essential — subsequent cost assumption is the exception (BGE 143 V 451 E. 3.2).
No. 15 Foreign nationals law aspects require particular attention: Receipt of social assistance can have foreign nationals law consequences (revocation of residence permit, non-renewal). The social authorities must inform the migration offices about substantial social assistance receipt. At the same time, fear of foreign nationals law consequences must not lead to persons in emergency situations receiving no help — the entitlement under Art. 12 FC is independent of residence status (BGE 130 I 82 E. 3.3).
#Case Law
#I. Principle of Support by Canton of Residence
BGE 149 V 156 of 1 March 2023
Principle of support by canton of residence according to Art. 115 FC and its implementation in ZUG.
The Federal Supreme Court confirms the constitutional anchoring of intercantonal allocation of jurisdiction in social assistance.
«Persons in need are supported by their canton of residence (Art. 115 sentence 1 FC). The Confederation regulates exceptions and jurisdictions (Art. 115 sentence 2 FC). The Federal Act of 24 June 1977 on Jurisdiction for the Support of Persons in Need (Jurisdiction Act, ZUG; SR 851.1) specifies within the framework prescribed by the Constitution which canton is responsible for welfare.»
BGE 149 V 240 of 5 October 2023
Relationship between Art. 115 FC and the federal statutory specification of support jurisdiction.
The constitutional provision necessarily requires statutory implementation through the ZUG.
«Persons in need are supported by their canton of residence (Art. 115 FC). The Confederation regulates exceptions and jurisdictions (Art. 115 sentence 2 FC). The Federal Act of 24 June 1977 on Jurisdiction for the Support of Persons in Need (Jurisdiction Act, ZUG; SR 851.1) specifies within the framework prescribed by the Constitution which canton is responsible for welfare.»
#II. Relationship to Art. 12 FC (Right to Assistance in Situations of Need)
BGE 130 I 82 of 19 February 2004
Distinction between cantonal social assistance according to Art. 115 FC and federally guaranteed emergency assistance according to Art. 12 FC.
Art. 115 FC regulates the allocation of jurisdiction, while Art. 12 FC establishes the entitlement to benefits.
«The cantons are free to enact additional provisions in the service of combating abuse [...]. The regulation of asylum welfare adopted with the amendment of the Zurich social assistance law does not violate the principle of the derogatory force of federal law.»
#III. Federal Jurisdiction Delimitation
BGE 148 V 114 of 24 November 2021
Cantonal jurisdiction in economic social assistance and constitutional limits.
Art. 115 FC establishes cantonal jurisdiction in principle with limited federal requirements.
«The disputed area of economic social assistance falls within the jurisdiction of the cantons in the absence of constitutional federal jurisdiction (beyond the conflict-of-laws rule in Art. 115 FC).»
#IV. Support for Swiss Citizens Abroad
BGE 138 V 445 of 17 September 2012
Special regulation for returning Swiss citizens abroad as exception to the principle of Art. 115 FC.
The federal regulation represents a special regulation to be interpreted narrowly in relation to the general residence principle.
«This represents a special regulation in relation to the principle anchored in Art. 115 FC of support for persons in need by the canton of residence and must consequently be interpreted narrowly.»
#V. Intercantonal Agreements and Institutions
BGE 143 V 451 of 21 November 2017
Application of Art. 115 FC to intercantonal agreements on social institutions.
Intercantonal agreements do not change the basic principle of support by canton of residence.
«When the application of federal law is provided for in an intercantonal agreement, the referenced law constitutes (inter-)cantonal law within the meaning of Art. 48 para. 3 and Art. 49 para. 1 FC.»
#VI. Support Domicile and Family Care
BGE 150 V 297 of 22 May 2024
Establishing support domicile for adults in family care.
Independently concluded care contracts do not change the principle of Art. 115 FC.
«When an adult independently concludes a care contract, this does not prevent the establishment of a support domicile at the place of their residence, as the requirement of official placement in family care according to Art. 5 ZUG is lacking.»
#VII. Cantonal Social Assistance and Federal Law
Judgment 8C_758/2015 of 29 October 2015
Art. 115 FC does not establish a subjective federal legal claim to specific social assistance benefits.
The constitutional provision is primarily a jurisdictional rule, not a benefit provision.
«A subjective (federal legal) claim to specific social assistance benefits could not be derived from it in any case.»
#VIII. Current Developments and Legal Certainty
Administrative Court of St. Gallen B 2015/60 of 27 September 2016
Application of Art. 115 FC to benefit reductions and sanctions.
The constitutional provision sets certain limits on cantonal discretion.
«The appellant attempted to obtain situational benefits through an obviously forged document and false statements. Contrary to the view of the lower instance, there is a violation of the duty to cooperate.»
Administrative Court of St. Gallen B 2019/53 of 24 January 2020
Local presence requirement and holiday stays abroad as limits to support by canton of residence.
Art. 115 FC establishes a conflict-of-laws rule for intercantonal jurisdiction.
«According to Art. 115 FC, persons in need are supported by their canton of residence. The Confederation regulates exceptions and jurisdictions. Art. 115 FC establishes in sentence 1 a conflict-of-laws rule that determines intercantonal jurisdiction for the support of persons in need.»