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A World Report on Disability published by the World Health Organization in 2011 indicates now that an estimated more than one billion people, or 15% of
the world population, live with some form of disabilities around the world!
With the adoption of the UN International Convention on the Rights of
Persons with Disabilities (CRPD Convention), persons with disabilities worldwide
have an instrument that allows them to no longer just aspire to charity
and condescendence, but to full inclusion in their respective
societies.
The CRPD Convention and its Optional Protocol were adopted by the United Nations General
Assembly on 13 December 2006 and entered into force on 3 May 2008.
The CRPD Convention establishes monitoring mechanisms both at the international
and national levels. At the international level the central monitoring
mechanism is the UN Committee on the Rights of Persons with Disabilities
(CRPD Committee). At the national level the CRPD Convention encourages
States to establish a number of institutions in order to facilitate implementation and monitoring. A closer work with civil society organizations including national organizations of persons with disabilities is encouraged.
States parties are obliged under the terms of the CRPD Convention to respect,
to protect and ensure the equal enjoyment of all human rights by persons with disabilities on equal footing with other citizens. However,
ensuring the promotion, protection and implementation of the rights of persons with disabilities is not an easy task and will not be achieved
without the contribution and collective efforts of civil society organizations both nationally and internationally based.
It is in this connection that DISABILITY COUNCIL INTERNATIONAL (DisabCouncil) is positioned as an innovative non-profit organization
working to promote the full realization of the rights of persons with disabilities. Far too often disability is viewed as a health or charity
issue. Disability Council International believes that persons with disabilities should be
seen as an asset for the future of their countries rather than a burden to avoid. It is not so much a question of curing the impairments of persons with disabilities as it is a question of removing society made barriers (stereotypes, inaccessible environment, lack of reasonable accommodation) preventing the full and productive inclusion of persons with disabilities in absolutely all areas and forms of society life. It is a matter of putting ability and human dignity first.
In this regard, Disability Council International is an international
NGO, universal in membership (it is open to persons with
all forms of disabilities, but it appeals equally to persons without disabilities, who are invited to work, as active partners, for the
promotion of the equal human rights of persons with disabilities). Disability Council International is also universal in its territorial ambit (its activities extend to all countries of the world).
Disability Council International is based in Geneva and works to encourage the universal
ratification and implementation of the CRPD Convention through advocacy and capacity
building programs of support to States and to the UN monitoring body (the CRPD Committee), the UN
Offices and Agencies dealing with disability issues, civil
society organizations, and national human rights institutions. It also develops projects directly benefiting concrete individual persons with disabilities and communities of those persons in all
countries of the world.
Disability Council International also contributes to the implementation of the
Convention by disseminating best practices in the realization of the human rights of persons with disabilities and fostering international
cooperation in the exchange of technical innovations.
Dear Friend, if you share the desire of Disability Council International to make the world a
better place for all to live in, without discrimination and inclusive of persons with disabilities, this is YOUR ORGANIZATION! Please join us as a member or otherwise become a sponsor for the cause of disability rights worldwide!
Let us make our SOCIETIES fully INCLUSIVE and ACCESSIBLE to Persons with Disabilities!
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CRPD Jurisprudence
B. Case Kenneth McAlpine vs. UK, (September 2012)
The CRPD Committee was seized of its second individual petition and declined to review it for lack of jurisdiction ratione temporis (Case of Kenneth McAlpine vs. UK, September 2012)
Case review
1. Case no. 6/2011 (Kenneth McAlpine
vs. UK) (Decision adopted in September 2012 during the 8th session of the
Committee). This is the second case on which the Committee took a decision on
the basis of its competence under the Optional Protocol to the Convention on
the Rights of Persons with Disabilities.
I. The facts of the case
2. The case relates to events that happened back in 2005/2010, more
precisely between December 2005 and February 2010. During this
period, Kenneth McAlpine a British national and a person with diabetes mellitus
(type 1 diabetes) was an employee of a private company. In December 2005 after a discussion with his
supervisor related to his unavailability for a meeting at work, the supervisor
was informed for the first time that the employee was a person with
disabilities. The discussion resulted in
a reasonable accommodation of Mr. McAlpine, who saw his duties at work reduced
as he wished. In January 2006, a
reorganization in the petitioner’s company resulted, this time against his
specific will, in further, more substantive reduction of his duties. In
February 2006 the petitioner was put on a confidential provisional list for
redundancy. In May of the same year he was publicly informed of that decision,
with the explanation that the reorganization made his specific duties no longer
needed in the company. The petitioner then tried on his own to find an
alternative occupation in the same company, but was unsuccessful, until the
dismissal took effect in July 2006.
3. In August 2006, the petitioner lodged a complaint with the UK’s
Employment Tribunal Service alleging discrimination. He claimed that he was dismissed because he
had requested a reduction of his workload because of his disability. In support
of his position he relied in particular on an exchange of messages available in
the files of the Tribunal where his immediate supervisor had indeed proposed
him for redundancy on account of his disability. However, the Tribunal noted
that the exchange of messages happened after the petitioner had been included
in the redundancy list by the direction of the company, of which the supervisor
was allegedly unaware, and dismissed his complaint in August 2007.
4. In October of the same year the
petitioner appealed the decision to the UK’s Employment Appeals Tribunal. In
December 2007 the Appeals Tribunal dismissed the appeal alleging lack of
“reasonable grounds” for a valid appeal.
5. The petitioner filed another application for leave to appeal these
decisions to the highest Court of Session in the UK. In February 2010 the Court of Session (last
available local remedy) also refused his application alleging the same lack of
reasonable grounds for the appeal (matters of facts were within the purview of
the lower Employment Tribunal, and the Court found “no errors of law” in the
qualification of the facts by the lower courts).
6. In May 2011, having thus
exhausted all the local remedies, the petitioner applied to the Committee. In
his application, the petitioner raised issues of violation of his rights
granted by the Convention, among others under the following articles: 4 (denial
of reasonable accommodation), 5 (non-discrimination), and 27
(non-discrimination in employment).
7. The UK asked the Committee to declare the case inadmissible on the
following ground, among others: lack of jurisdiction ratione temporis (alleging that the facts happened in 2006, whereas
the State party ratified the Convention and the Protocol only in 2009).
II.The Committee’s position
and reasoning
8. The Committee essentially agreed with the UK and found that it lacked jurisdiction ratione temporis to entertain the case on its merits.
9. In coming to
its conclusion, the Committee considered the following arguments:
a) On the key
matter of ‘date of the alleged violation’ by the UK (before or after its ratification of the Convention in 2009),
the petitioner asked the Committee to consider this date as 2010, when the highest
Court of Session’s decision was taken, but the Committee found that
the 2010 highest Court of Session’s decision “by its very nature, did not in itself constitute an act that reiterated
the content of the judgments of the lower courts in their rulings on the
question of discrimination raised by the author, and that, consequently, the
decision did not violate the author’s rights under the Convention.” (para. 6.5).
b) Therefore the Committee appears to have
considered the UK’s Appeal Tribunal’s decision of December 2007 as the critical
date of the alleged violation by an organ of the State, as it concluded in
agreement with the UK that “the alleged violations took place before the entry
into force for the State party of the Convention and Optional Protocol” in 2009
(para. 6.5).
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A. Case Ms H.M. vs. Sweden (April 2012)
The CRPD Committee reviews its first individual petition and finds Sweden in violation of its treaty obligations for denying reasonable accommodation to a person with disabilities (Case of Ms H.M. vs. Sweden, April 2012)
Case review
1. Case no. 3/2011
(H.M. vs. Sweden) (Views were adopted in April 2012 during the 7th session
of the Committee) is the first one ever decided by the CRPD on the
basis of its competence under the Optional Protocol to the
Convention on the Rights of Persons with Disabilities.
I. The facts of the case
2. The case
reports to events that happened back in 2009/2010, more precisely between
December 2009 and August 2010. During
this period, Ms H.M., a Swedish national resident in the city of Örebro (Sweden) and a person suffering from multiple forms of disability, including the so-called Ehlers-Danlos Syndrome, tried unsuccessfully to secure permission from
local municipal authorities for the building of an indoor hydrotherapy pool in
her own plot of land, as recommended by her treating doctors. Orebro municipal
authorities rejected her request for permission to build the indoor
hydrotherapy pool, relying on local Swedish land use regulations that
prohibited such buildings in that parcel of land. The petitioner went through
the chain of administrative courts up to the Supreme Administrative Court of Sweden, which
refused her appeal.
3. Having exhausted
all possible local remedies, on 6 December 2010, Ms H.M. applied to the CRPD Committee seeking a redress of her situation under the CRPD Optional Protocol. In
her claim to the Committee, H.M. essentially raised two issues: first that she
considered that by failing to take account of her specific needs and her equal
right to rehabilitation and improved health, Sweden has discriminated against her; and second, since without the hydrotherapy pool
she would be left with the only option of joining an institution, her right to
an independent life in the community would also be violated. The petitioner relied on a number of the substantive provisions of the Convention, in
particular articles 5 (non- discrimination), 19 (life in the community), 25 (health)
and 26 (rehabilitation).
II.The Committee’s position
and reasoning
4. The Committee
essentially agreed with the petitioner and found Sweden in violation of its
obligations under the mentioned relevant articles (Sweden’s obligation to ensure the
realization of the right of the petitioner not to be discriminated against, and
her equal right to independent life in the community). The Committee
recommended Sweden to consider authorizing the petitioner’s request for a
building permit, and ensure that such violations are prevented in future
including by ensuring that the interpretation of its legislation does not have the
effect of nullifying the exercise of the rights of persons with disabilities on
equal basis with others.
5. In coming to its
conclusion, the Committee considered the following arguments:
a) There is
discrimination contrary to relevant provisions of the Convention (arts 4, 5) when laws are
applied in a neutral manner without taking into consideration the particular
circumstances of the individuals to whom they are applied; accordingly the
right not to be discriminated against is violated if a State, without objective and reasonable
justification, treats equally, persons in
different situations;
b) Making necessary and appropriate modification
and adjustments not imposing a disproportionate or undue burden, where needed
in a particular situation is a requirement under the Conventional principle of
reasonable accommodation, and denying such accommodation is considered a form
of discrimination in the Convention (arts 2, 5). The Committee noted that the
State never argued that providing the petitioner with such accommodation (departing from the official policy) would occasion a
disproportionate or undue burden on the State;
c) The Convention (arts 25, 26) also requires
States parties to undertake measures to ensure access for
persons with disabilities to health services that are gender-sensitive,
including health-related rehabilitation to allow such persons to attain maximum
independence and full inclusion in all aspects of life. The Committee also noted
that the Convention requires such rehabilitation programs and services to
be based on the multidisciplinary assessment of individual needs and
strengths;
d) The
Committee concluded that denying the building permission due to purported
general public interests protected by the said law of Sweden, was a
disproportionate and discriminatory measure adversely affecting the petitioner’s
right to the healthcare and rehabilitation required for her specific health
condition;
e) The Committee further concluded that by denying the building permission and leaving the petitioner with no other
alternative but joining an institution, Sweden was also violating the
petitioner’s right to life and inclusion in the community, which could only be
supported with the indoor hydrotherapy pool. The Committee reminded that under the
terms of the Convention (art 19), Sweden was obliged to provide persons with
disabilities with a range of community-based supporting services and programs
in order to prevent their isolation or segregation from the community.
6.The Committee requested Sweden to report back within 6 months on the measures undertaken to implement its Views and recommendations.
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