Basic Subsistence Level after Insolvency: Future Care Costs

Jun 27, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the issue of when a debtor’s minimum subsistence level can be raised during insolvency proceedings, considering anticipated future care and support costs.

During debt settlement proceedings, a paraplegic pensioner requested that his entire income be deemed unattachable due to the necessity of covering disability-related expenses. The lower courts granted only a portion of the requested amount, considering solely the expenses that had already been incurred.

Partial success for the debtor – key point referred back

The OGH partially upheld the appeal on points of law, amending the decision to increase the debtor’s non-garnishable allowance by EUR 1,130 per month (twelve times a year). However, the request for an additional EUR 1,110 was denied. Regarding a larger claim of EUR 2,822 per month, the lower court decisions were set aside, and the case was sent back to the first instance court for further fact-finding.

Care costs to be realistically predictable

The debtor requested his entire income be non-garnishable for care and therapy expenses. The lower courts partially agreed but denied further exemptions since the expenses had not yet occurred.

The OGH asserted that the term ‘additional expenses’ within the framework of Section 292a EO should not be narrowly confined to costs already incurred. It stated that foreseeable future expenses necessary for maintaining a dignified life—such as 24-hour care or medically indicated therapies—could warrant an increase in non-attachable income. The court emphasized that without this consideration, the protective function of the provision would be compromised. Consequently, individuals currently unable to afford essential care services would be at a permanent disadvantage, a situation deemed objectively unjustifiable by the Supreme Court.

Clarification of actual needs

As the lower courts have not made adequate findings regarding the necessity and scope of future 24-hour care or the requirement for regular physiotherapy, the case has been referred back to the court of first instance.

Conclusion

The OGH indicates that insolvency law allows for the consideration of future necessary and specifically foreseeable living expenses. The important aspect is whether these expenses are objectively necessary for maintaining a basic standard of living, rather than if they have already been incurred.

OGH 8 Ob 26/25v (28 March 2025)