Constitutional lawyer Mayer: Auszeit-WG lacks a legal basis

The Auszeit-WG itself is a facility intended to provide children and adolescents in acute crisis situations with a supervised place to live at short notice. The City of Vienna has developed the model in recent years as a supplement to existing youth welfare services. The facility is run by the association 'neue wege', which operates several social-pedagogical offerings in Vienna.

The Federal Ministry of Justice and MA 11 of the City of Vienna partially rejected Mayer's characterization. According to their information, the relevant point of reference is not the individual shared household, but the entire provider 'neue wege' with its existing approvals. The responsible authorities invoke the fact that the requirements for accommodation within the framework of youth assistance are met.

Position of the Ministry of Justice and MA 11

As emerges from a statement, the authorities formulate unambiguously: „Maßgeblich ist demnach der gesamte Träger 'neue wege' und nicht ausschließlich die WG.' In doing so, the ministry and MA 11 distance themselves from a reading that assumes the absence of a specific statutory authorization for the Auszeit-WG.

Mayer, by contrast, points to the systematics of the HeimAufG, which in his view contains clear requirements for the establishment and operation of facilities. According to his argument, it is not enough to refer to the provider as such if the specific form of accommodation goes beyond what the existing approvals cover.

HeimAufG at the core of the legal debate

The role of the Vienna city government also plays into the debate. The responsible city councillor Bettina Emmerling had repeatedly defended the concept of the Auszeit-WG as a supplementary offering within Vienna's child and youth services. She sees it as a low-threshold instrument to enable a quick change of living environment in acute family crises.

The head of the provider 'neue wege', Markus Riedl, had also pushed back in the past against accusations of a lacking legal basis. He pointed out that the facility is operated in accordance with the applicable provisions of Vienna's youth assistance system. Administrative practice had so far not objected to its operation.

Political dimension and consequences

The legal controversy also raises a more fundamental question: What requirements must be met by the legal basis for supervised residential forms for children and adolescents? Mayer sees a gap in the system here that the legislature must close. The Ministry of Justice evidently does not share this assessment and considers the existing regulations sufficient.

Observers interpret the public exchange as an indication of an unresolved conflict between constitutional law, administrative practice, and political steering. As long as the fundamental legal question has not been conclusively clarified, the Auszeit-WG remains, in Mayer's view, in a legal gray area that could have significance beyond the individual case for similar models in other federal states.

APA reports that the responsible authorities are seeking dialogue with academia. It remains open whether Mayer's statement will lead to an amendment of the HeimAufG or to a new administrative practice. Clarity can only be brought by further legal opinions or a court decision.