Wednesday 11 June 2014

More back-slapping than soul-searching: The European Commission’s reflections on the UN Convention on the Rights of Persons with Disabilities

Dr. Charlotte O’Brien, Lecturer in Law, York Law School, University of York

More than seven years on from signing the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and three and a half years on from conclusion of the Convention, how is the EU doing on protecting the disability rights contained therein? Extremely well, according to the European Commission. So well, in fact, it seems the UNCRPD was barely necessary at all, since the EU was doing the right things anyway. But this self-analysis – in the Commission’s first report on implementation of the UNCRPD – is unsurprisingly partial, in both senses of the word, being both predisposed to the Commission’s viewpoint, and incomplete.

The report is a series of responses to each article of the Convention, capturing some element of EU activity. There is no section addressing the overall picture, or what is missing, or what needs to be done. The focus is on the patchy assemblage of areas in which disability has been (however peremptorily or indirectly) considered by EU law – and not on the significant gaps. It is tricky to differentiate between those activities that the Commission consider to follow from the UNCRPD, and those that were happening anyway, especially as there is a heavy reliance on the EU Disability Strategy. The Strategy document does refer to the UNCRPD several times – but makes only one mention of it in the ‘areas for action’ of accessibility, participation, equality, employment, education and training, social protection and health.

The message does seem to be that substantive Convention duties were largely being discharged, and the Convention has inspired some procedural refinement.  For example, on assessing the Commission’s internal rules and practices, the Commission ‘concluded that they were in line with the letter and the spirit of the CRPD. However, the review highlighted the need to offer additional guidance to services on the application of reasonable accommodations.’

Some of the most significant issues which emerge from, but are not engaged with in, the report are: (i) the difficulty EU institutions have had breaking away from a medical model of disability; (ii) the continued exclusion of disabled migrants from free movement rights; (iii) the limits of discrimination law; (iv) the detrimental impact of the EU-wide austerity agenda on disabled citizens; and (v) the use of non-justiciable measures and initiatives, combined with a dearth of impact evidence. 

(i)  The EU’s persistently medical model of disability

The report states that in the HK Danmark cases the CJEU adopted the UNCRPD definition of disability, combining medical impairment with ‘physical, mental or psychological impairments which in interaction with various barriers’ create limitations that ‘hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’.

But this was not unproblematic adoption of a more social model – the Court then conflated impairment with the limitation (i.e. the disability) that ensues following interaction with social and environmental barriers – a confusion repeated in this report. Despite the references to social and environmental barriers, the Advocate General and the Court focused on impairment and barriers were not considered.

The same approach of name-checking the UNCRPD definition without engaging with its substance was taken in the surrogacy case (C-363/12 Z), in which a woman whose medical condition prevented her from carrying children was to have a baby through a surrogate mother and wished to take maternity leave. The exclusion of such women from maternity leave rights presented an ideal opportunity to engage with the idea of socially created disability – as here was a condition that in itself might not be disabling, but on interaction with employment rules became a source of disadvantage, or limitation, in the workplace. But the Court insisted that an impairment must be a disability in itself  - finding that ‘it is not apparent from the order for reference that Ms Z.’s condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity.’

It is not just the Court that struggles. The report refers to the ‘social concept of disability’, but relies throughout upon a very medico-economic standpoint – necessarily reflecting the impairment-centric approach of the legislation cited. The General Block Exemption Regulation (a key measure in EU state aid law) defines disability as someone recognized under national law as disabled, or someone who has ‘a recognised limitation which results from physical, mental or psychological impairment. 

(ii) Cross border mobility

The report is a little evasive and misleading as to the free movement rights of disabled EU citizens. After noting the exclusion of EU migrants form social assistance for the first 3 months in a host state, it goes on to add that ‘if they lawfully reside there for period longer than three months, EU citizens are entitled to social assistance benefits on an equal footing with nationals of the Member State concerned.’ But in the UK, EU migrants have to fit in to one of the categories of Article 7 of Directive 2004/38 of the citizens’ Directive (ie, the grounds for an EU citizen to reside for more than three months in another Member State) in order to be considered lawfully resident. So someone considered economically inactive (and disabled persons are disproportionately more likely to be so considered) will not be entitled to social assistance. The Report does add the caveat that ‘in specific cases where authorities have a reasonable doubt that the EU citizens concerned may become an unreasonable burden on their social assistance system, they may assess the individual situation taking into account all relevant circumstances and the principle of proportionality, and could, on this basis, terminate the right of residence of the persons concerned.’ But, certainly in the UK, refusal of benefits to economically inactive EU migrants is routine, and mandated by law – it is not just in ‘specific cases’. Nor is there recourse to a discretionary assessment of ‘all the relevant circumstances’ or use of ‘proportionality’.

Disabled persons are also disproportionately more likely to be in receipt of special non-contributory benefits (SNCBs), but following the CJEU’s judgment in Case C-140/12 Brey, they cannot rely on this entitlement to argue that they are self sufficient and not reliant on social assistance, and so can also be excluded from equal access to SNCBs. Equal access to benefits in the host state is not the only obstacle. The social security coordination regime also excludes social assistance and SNCBs from exportation rules, so that recipients are helped by neither home nor host state.

(iii) The limits of discrimination law

Disability equality rights are limited to Directive 2000/78, the employment equality Directive, which ensures equality on grounds of disability, age, sexual orientation and religion as regards employment and occupation. The report notes that in 2008 the Commission put forward a proposal to extend non-discrimination beyond employment, and merely concludes that ‘the proposal is under negotiation in the Council, where the unanimous vote of the Member States is required for its adoption’. It does not enter into the protracted, tortuous route it has taken, or its period of dormancy, or its recent revival, the continued Council controversy, or the apparently vanishing likelihood of unanimous approval ever being reached. As of this month, the disability provisions as a whole were still one of the ‘outstanding issues’.

(iv) Austerity and poverty

In pushing an austerity agenda, the EU draws upon the logic of flexicurity and activation, to pressure Member States into reducing their welfare expenditure and focus on pushing the disabled into the workplace. The Report notes that the position of the Disability Strategy is that ‘quality jobs [are] the best protection against poverty for disabled people’. However, welfare retrenchment strategies tend not to promote ‘quality’ jobs, but any jobs, and penalize those whose circumstances make it harder for them to find work.  The report notes that severe material deprivation increased amongst disabled people between 2010 and 2011, from 10.9 to 12%; an increase 2.75 times greater than that experienced by non-disabled people.  But the report does not suggest a response to this disability-inflated poverty risk increase or connect it to social protection policies. Moreover, many welfare reforms will have only started to bite since 2011.

On top of this, there are important questions about the disproportionate impact of poverty upon persons with disabilities, who without financial means may be more likely to be disempowered through family-based support or institutionalization. On being asked in the European Parliament about the prospects of increased institutionalization, Commission Vice-President Viviane Reding has suggested that the remedy lies in the Commission’s employment policies, which in the context of persons requiring substantial care, and in an employment environment still very poorly adapted to disability, seems to be an example of ardent ideological faith rather than realistic projection.

(v) Measures without impact evidence

The report is replete with references to not-easily-actionable sources, and softer measures, such as those which ‘encourage Member States’, without explanation as to the degree – or the success – of ‘encouragement’. It relies fairly heavily on the Charter of Fundamental Rights, but does not engage with the question of if and how disabled people can actually access the rights declared within, given the limitations built into the Charter and the wariness of courts to find it can create any right that does not exist elsewhere. The Charter could well still prove a valuable interpretative prism – but it would be helpful had the report engaged in the practical utility question. Where more clearly justiciable instruments are referred to, the relevant text as it affects disabled people is often plucked from recitals, suggesting that they do not reside in the more easily invoked Article based provisions, and raising questions over the degree to which individuals can rely solely on recitals.

Some of the activities cited are conspicuously outcome-light – such as the preparation of the now-stymied Directive extending non-discrimination law, or the mandates to draft accessibility standards for the built environment issued in 2007 and 2010. The report notes that they have not yet led to the standards being drafted, and does not offer any insight into whether attempts are being made to do so. While pointing to (excellent) reports by the Fundamental Rights Agency on issues such as rights to independent living and political participation, the report does not highlight the conclusions or recommendations of those reports, or suggest what follow up action is to be taken. The frequent references to the European Disability Strategy, and associated awareness campaigns (33 mentions of raising awareness), lead us to ask what effects these are actually having, and how the Commission is measuring the impact of its activities.  The report does list the Commission’s generic data gathering activities, but there is no mention of indicators of the success of its own policies and ‘soft’ measures.

As anyone who has been through the recent Research Excellence Framework process in a UK university will know, impact is not simply about saying you will make things available, or tell people stuff. We have to show that doing so makes a difference; it does not seem unreasonable to expect the same of the Commission. Such a task might avoid the pitfall of constructing a complacent defence of the status quo, and might instead encourage an active identification of things that need changing.

Some of the ideas presented here are developed in more detail in ‘Article 26: Integration of persons with disabilities’ in Peers, Hervey, Kenner and Ward (eds), Commentary on the EU Charter of Fundamental Rights (Hart: Oxford, 2014), and ‘Union citizenship and disability: restricted access to equality rights and the attitudinal model of disability’ in D. Kochenov (ed) Citizenship and Federalism in Europe, CUP, forthcoming.

Barnard & Peers: chapter 9, chapter 20 

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