Judgment of the ECHR of 10 September 2020 in the case "G. L. v. Italy (G. L. v. Italy)" (aplication No. 59751/15).
In 2015, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Italy.
The case successfully considered an aplication about the inability of an autistic child to receive specialized care, to which he was entitled under Italian law, while studying in the first two grades of primary school. The case involved a violation of the requirements of article 14 of the Convention.
CIRCUMSTANCES OF THE CASE
The applicant is a girl born in 2004 who suffers from a non-verbal form of autism. During her first two years of primary school in 2010-2012, she was not able to receive the specialized training assistance to which she was entitled under the relevant Italian legislation. Thus, the applicant, and in fact her parents, were forced to pay for private educational services. The Italian administrative courts rejected the applicant's claims.
Regarding compliance with article 14 of the Convention, considered in conjunction with Article 2 of Protocol No. 1 to the Convention. The scope of article 14 of the Convention includes not only the prohibition of discrimination on the basis of disability, but also the obligation of States to provide "reasonable accommodation" capable of correcting de facto inequalities that, in the absence of any justification, would constitute discrimination.
The Italian legal system guarantees children with disabilities the right to education in the form of inclusive education in general public schools in Italy. In classes that enroll children with disabilities, there must be a teacher who provides such children with additional assistance in learning, as well as, if the situation with a particular student requires it, there must be other assistants.
(a) Refusal to provide the applicant with specialized assistance. At the time under review, various provisions of Italian law enshrined the right of children with disabilities to education and to protection from discrimination.
By including children with disabilities in the general education system, the Italian legislature made a choice within the scope of their discretion. In the present case, even though Italian law provided for an abstractly reasonable "adjustment", leaving the administration (school) no freedom in this regard, the competent Italian public authorities did not indicate how such adjustment should have been carried out in practice in the period 2010-2012, and thus during this time the applicant did not receive specialized assistance that would meet her special educational needs.
The Court has taken into account that article 14 of the Convention should be interpreted in the light of the requirements, inter alia, of the United Nations Convention on the Rights of Persons with Disabilities. This Convention establishes that the "reasonable accommodation" that persons with disabilities have the right to expect " means making... necessary and appropriate modifications and adjustments", when "it is necessary in a particular case", in order to "ensure the realization or enjoyment by persons with disabilities on an equal basis with others of all human rights and fundamental freedoms", and that discrimination on the basis of disability "includes all forms of discrimination, including the denial of reasonable accommodation". Measures of reasonable accommodation are designed to correct de facto inequalities.
Indeed, the Court should not determine what "reasonable accommodation" should be applied in the field of education in order to meet the educational needs of persons with disabilities. However, it is important that States pay particular attention to their choices in this area, given the particular impact of the consequences of decisions taken on children with disabilities, whose vulnerable situation cannot be ignored.
According to the Italian authorities, since the only available funds were allocated to meet the needs of people suffering from amyotrophic lateral sclerosis (ALS), the authorities did not have the money that could be quickly redirected to provide support in the field of education. The Italian authorities also reported that the school administration organized specialized assistance from the school staff at its own expense. However, the Italian authorities did not provide any data on the special skills of these employees or on the assistance they provided, nor did they provide any details on the duration (period) of such assistance and the specific time when it was provided. In addition, during the school year, the school spent 476.56 euros to pay for the services of six employees.
In the light of the above-mentioned explanations, the applicant was consequently unable to continue attending primary school under conditions similar to those of non-disabled students, and this difference in treatment was due precisely to the applicant's disability. Thus, during the two academic years, with the exception of the services of private teachers paid for by the applicant's parents and a few episodes of assistance from school staff, the applicant did not receive the specialized assistance to which she was entitled and which would have allowed her to use the educational and social services of the school on an equal basis with other students.
(b) Proceedings before the Italian administrative courts. The Italian administrative courts took into account that the lack of financial resources justified the fact that the applicant was not provided with specialized assistance, without checking whether the relevant authorities had provided a fair balance between the applicant's educational needs and the limited ability of the school administration to meet them, and without checking whether the applicant's complaints of discrimination were justified. In particular, the Italian administrative courts did not consider whether the budgetary restrictions referred to by the respondent authorities had the same impact on non-disabled children as on children with disabilities.
The Italian authorities have not yet explored the possibility that the lack of necessary financial resources or the special need to prioritize the care of persons suffering from serious illnesses could be compensated not by changing the "reasonable accommodation" to ensure equal opportunities for children with disabilities, but by reducing the overall volume of education with an equal burden between non-disabled and disabled students, although this point has already been reflected in the documents of the Italian Court of Cassation. Taking into account the inclusive model of education adopted in Italy, when all students were taught in general classes and taking into account the practice of the Italian Court of Cassation, any restriction on budget funding should have had an equal impact on the education of both non-disabled and disabled children.
(c) Output. The Italian authorities did not attempt to determine the applicant's real needs or possible solutions that would allow the applicant to attend primary school in conditions as similar as possible to those of the other students, without placing a disproportionate or inappropriate burden on the administration.
The discrimination suffered by the applicant was all the more serious, given that it took place during the applicant's primary school education, where the foundations of education and social integration of children are laid, where children get their first experience of life in society, and which is a mandatory level of education in most countries.
The Italian authorities did not demonstrate that the competent public authorities acted with due diligence to guarantee the applicant the exercise of her right to education on equal terms with the rest of the students, in order to ensure a fair balance of the interests involved.
The case involved a violation of the requirements of article 14 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage and EUR 2,520 in respect of pecuniary damage.