London, 13 August 2013
On 29 July 2013, the decision of the European Committee on Social Rights in International Federation for Human Rights (FIDH) v Belgium was made public. The Committee, in its decision dated 18 March 2013, held that Belgium’s inadequate provision of care and accommodation for highly dependent persons with disabilities amounted to a violation of their right to benefit from social welfare services (Article 14) and their right to non-discrimination (Article E) under the revised European Social Charter of 1996.
The collective complaint was brought by FIDH on behalf of highly dependent adults with disabilities (“the persons concerned”) and their families against the Belgian state, due to a concern about a “severe shortage” of accommodation for the persons concerned and its impact on them and their families. FIDH alleged that the Respondent’s failure to ensure sufficient accommodation amounted to: a failure to provide effective access to social and medical assistance, social services and housing; a violation of the right to independence, social integration and participation in the life of the community; a lack of social, legal and economic protection against poverty and social exclusion; and discrimination.
The Respondent denied any breach of the Charter. It pointed out that its federal structure meant policies often originate at a regional or community level. The Respondent also argued that it had taken significant steps including increasing the budget for provision of community services for persons with disabilities and that, in the current economic climate, it would not be reasonable to expect it to spend more in this area. It stated that persons with the severest disabilities are better subsidised than others and that its extremely varied range of social services options on offer meant it was in conformity with its obligation to progressively realise Charter rights.
The Committee held that the Respondent was responsible under Article 27 of the Vienna Convention on the Law of Treaties for any failures which arose as a result of delegating its Charter responsibilities to a local level. It held that:
- Access of persons with disabilities to social welfare services can only be regarded as “equal and effective” for the purpose of Article 14(1) if the state offers: “varied and multiple methods of care for these people by the community and if the number and quality of the social welfare services actually provided correspond as closely as possible to the specific, practical, individual needs of the persons concerned”.
- Article 19 of the CRPD – which “reflects existing trends in comparative European law in the sphere of disability policies” – recognises the right of all persons with disabilities to live in the community “with choices equal to others” and with social services available to them “on an equal basis and (,,,)responsive to their needs”.
Rejecting the Respondent’s argument that it had done enough to show it was progressively realising the rights of the persons concerned, the Committee found that the Respondent had not achieved enough in the time examined. It held that the shortage and the resulting waiting lists and lack of care amounted to a breach of the Charter rights of the persons concerned as well as a breach of the rights of their families under Article 16.
The Committee also found that the Respondent’s failures amounted to discrimination in violation of Article E of the charter. It held:
- “Disability” is a protected characteristic under “other status” in Article E;
- Article E obliges states “when taking measures in the social services field, to take account of the situation of highly dependent adults with disabilities so as to guarantee their effective access to the benefits of public policy on an equal footing with all other persons, even if that entails that persons with severe disabilities, on account of their own specific vulnerability, will be treated more favourably than others”. In order to determine whether there was discrimination, the persons concerned were to be compared to both the general population and also other persons with disabilities;
- As the Respondent was not creating sufficient accommodation facilities to prevent the exclusion of many of the persons concerned from this form of social welfare service appropriate to their specific, tangible needs, the Respondent had, amongst other things, violated Article E taken in conjunction with Article 14(1);
- The lack of accommodation causes many families to live in insecure circumstances. These families are vulnerable groups and the Respondent’s failure also amounted to a breach of Article E taken in conjunction with Article 16.
The Committee did not find violations in relation to the other claims made by FIDH.
ERT welcomes the strong position the Committee has taken in relation to the positive obligations of the state in the provision of social services to particularly vulnerable groups such as the highly dependent persons with disabilities in this case.
To read ERT’s case summary click here
To read the Committee’s decision click here