Tag Archives: Article 19

COE Commissioner for Human Rights Publishes Issue Paper on the Right to Independent Living

The Council of Europe Commissioner for Human Rights Thomas Hammerberg published an Issue Paper entitled “The Right Of People With Disabilities To Live Independently And Be Included In The Community”.  This Issue Paper Follows On From One On Legal Capacity Published Last Month Entitled “Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities”.  Issue Papers are commissioned and published by the Commissioner for Human Rights, to contribute to debate and reflection on important current human rights issues. Many of them also include Recommendations by the Commissioner for addressing the concerns identified. The Commissioner in this Issue Paper made a number of important recommendations on how States can realise the right to independent living.   The Issue Paper identifies the right to live in the community as enabling people to live their lives to their fullest within society and access the public sphere and as “… a foundational platform for all other rights: a precondition for anyone to enjoy all their human rights is that they are within and among the community”.   The Issue Paper very much is based on the emerging discourse being generated by Article 19 of the CRPD, which captures the right to live independently in the community as a distinct right. The Issue Paper also makes a number of references to the synergy between Article 19 of the CRPD and Article 12 on legal capacity and the right to live independently in the community is closely allied to fundamental rights such as personal liberty, private and family life and freedom from ill-treatment or punishment etc.

The Issue Paper sets out that living independently involves the provision of support and that full inclusion and participation in the community involves different elements that include:

  • choice
  • individualised supports that promote inclusion and prevent isolation and
  • making services for the general public accessible to people with disabilities.

The Commissioner expressed concern that “millions of people with disabilities in Council of Europe member states are denied the right to live in the community. Placement in institutions, still affecting the lives of more than a million people with disabilities across Council of Europe countries, is a pervasive violation of this right which calls for a firm commitment to deinstitutionalisation. Many more are isolated within their own communities due to inaccessibility of facilities such as schools, health care and transportation and lack of community-based support schemes.”  This Issue Paper is timely then as the CRPD is driving a worldwide disability law and policy reform agenda.  This provides an opportunity for States across Europe to promote the right to live in the community and participate and contribute to their communities. 

From a mental health perspective it is noteworthy that the Commissioner in the Issue Paper identifies mental illness as a factor as contributing to institutionalisation and subject to detention and forcible treatment.  The Commissioner also referred to Article 14 of the CRPD as countering this by prohibiting “deprivation of liberty on the basis of a disability”. 

In order to ensure the effective enjoyment of the right to live in the community for people with disabilities, the Commissioner for Human Rights urged Council of Europe member states to take the following action:

  1. ratify the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol.
  2. review their legislation and policy in the light of Article 19 of the UN Convention on the Rights of Persons with Disabilities, with a view to ensuring that everyone with disabilities enjoys an effective right to live independently and be included in the community, irrespective of the nature of the impairment.
  3. ensure that all people with disabilities have the legal capacity to make decisions, including those affecting their right to live independently and to be included in the community, through appropriate supported decision-making if needed.2
  4. adopt a no-admissions policy to prevent new placements of persons with disabilities in institutional settings.
  5. set deinstitutionalisation as a goal and develop a transition plan for phasing out institutional options and replacing them with community-based services, with measurable targets, clear timetables and strategies to monitor progress.
  6. allocate the necessary budgetary and other resources towards community-based supports rather than institutional placement and services, in accordance with the principle of progressive realisation.
  7. ensure that the process of transition to community-based services and supports does not fall short of achieving full implementation of the right to live in the community, recognising that smaller institutions or segregated frameworks and mechanisms, such as congregate care, even when physically placed in the community, do not satisfy the conditions set in Article 19 of the UN Convention on the Rights of Persons with Disabilities.
  8. develop and implement a plan for services such as personal assistance, housing, support in finding a job, life planning, and support to family, which prevent isolation within the community, and which ensure that a person’s support needs do not compromise their full and equal participation and inclusion in society.
  9. develop and implement a plan to support families who have a child with a disability to enable the child a full life within family and community and prevent isolation and institutionalisation.
  10. define a statutory and enforceable individual entitlement to a level of support which is necessary to ensure one’s dignity and ability to be included in the community.
  11. review the nature and purpose of services offered to persons with disabilities with a view to enabling them to lead the life they prefer, by maximising their choice and control of support services and by avoiding bundling such services in a way which compromises that choice.
  12. enable persons with disabilities to purchase their own supports and access housing in the general housing market.
  13. critically examine the inclusiveness of community services for the general population with a view to making these services responsive to the needs of persons with disabilities.
  14. ensure monitoring by independent national mechanisms of the human rights of residents of institutions until institutions are phased out, and of the human rights of people using community support services, including the quality and accessibility of community-based schemes and supports.
  15. ensure that persons with disabilities and their representative organisations are involved and participate fully in planning, carrying out and monitoring the implementation of the right to live in the community. 
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UK Joint Parliamentary Committee on Human Rights launches Report on Article 19 UNCRPD

We are delighted  to welcome this guest post by Neil Crowther a leading disability rights and equality advocate.  Neil an independent consultant and writes in a personal capacity. He was previously Director of Human Rights at Britain’s Equality and Human Rights Commission (EHRC) where he led the development and implementation of its domestic and international human rights programme.  Prior to his role as Director of the EHRC Neil led the Commission’s disability rights programme.  

In a world-first, the UK’s Parliament has conducted an Inquiry into the UK Government’s implementation of Article 19 of the UN Convention on the Rights of Persons with Disabilities – the right to live independently and to be included in the community.   I was honoured to work as a specialist adviser on the Inquiry of the Joint Parliamentary Committee on Human Rights which began in 2011 and received evidence from over 300 witnesses.  Dr Hywel Francis MP, Chair of the Committee, said: “We are concerned to learn that the right of disabled people to independent living may be at risk through the cumulative impact of current reforms. Even though the UK ratified the UNCPRD in 2009 with cross-party support, the Government is unable to demonstrate that sufficient regard has been paid to the Convention in the development of policy with direct relevance to the lives of disabled people. The right to independent living in UK law may need to be strengthened further, and we call on the Government and other interested organisations to consider the need for a freestanding right to independent living in UK law.” 

The Report draws attention to a number of significant human rights issues, including:

  • the need for freestanding legislation to protect the right to independent living in UK law,
  • the effect of current reforms to benefits and services on the ability of disabled people to enjoy independent living,
  • the role played by the UNCRPD in policy development and decision making at all levels of government,
  • the use of equality impact assessments,
  • the effects of devolution on implementation of the UNCRPD

The right to independent living does not exist as a freestanding right in UK law. Although it is protected and promoted to some extent by a matrix of rights, the Committee believes that this is not enough. It argues that the Government and other interested parties should immediately assess the need for, and feasibility of, legislation to establish independent living as a freestanding right. In addition, the Committee concludes that the UNCRPD is hard law, not soft law, and that the Government should fulfil their obligations under the Convention on that basis, and counter any public perception that it is soft law.

The Committee finds that:

  • reforms to benefits and services risk leaving disabled people without the support they need to live independently;
  • restrictions in local authority eligibility criteria for social care support, the replacement of the Disability Living Allowance with Personal Independence Payment, the closure of the Independent Living Fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people;
  • some people fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care.

It also finds that:

  • the Government had not conducted an assessment of the cumulative impact of current reforms on disabled people. The Report urges them do so, and to report on the extent to which these reforms are enabling them and local authorities to comply with their obligations under the UNCRPD.
  • the UNCRPD did not appear to have played a significant role in the development of policy and      legislation, as is required by the Convention. The Committee therefore argues that the Government should make a commitment to Parliament that they will give due consideration to the  articles of the Convention when making legislation.
  • Further, the Committee deprecates changes to the duties of public authorities in England under the Equality Act 2010, which no longer require the production of equality impact assessments of changes in policy, nor the involvement of disabled people in developing policies which will affect them.

The Committee finds variations in the manner in which the devolved administrations have implemented the Convention, and uncertainty as to the role the UK Government should play in ensuring implementation. The Report notes with disappointment the lack of a strategy in Northern Ireland to promote independent living and reminds the UK Government to acknowledge their responsibility to ensure implementation.

The Committee also considers a range of other issues relating to independent living. It recommends that the Government should take further action to ensure that assessments for care needs are portable across the country in order to ensure disabled people’s right to choose their place of residence. It also expresses concern over a growing incidence of hate crime against disabled people and urges the Government take action to foster respect for the rights and dignity of disabled people. 

Neil will write more about the issues raised by the Inquiry and about other work he has been involved in on Article 19 and the Convention more generally in a separate blog.

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