The case of S.K. v. Finland. Views of the Committee on the Rights of Persons with Disabilities dated March 24, 2022. Communication No. 46/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Finland.
As seen from the text of the Considerations, referring to the Committee's general comment No. 5 (2017), the author complained, in accordance with article 19 of the Convention, that he was deprived of the opportunity to make personal and independent choices and exercise control in all spheres of life. He was deemed unable to live independently in his home, using personal assistance. In practice, the support provided to him is tied to specific living conditions. Resources were not allocated to individually tailored services, but rather to services based on specialized institutions. The municipality and the State party refused to provide the author with the required social services that would allow him to live independently in society, which in his case led to family dependence, isolation and segregation (paragraph 3.1 of the Considerations).
The Committee's legal position: to lead an independent lifestyle and be involved in the local community, as reflected in article 19 of the Convention, means exercising freedom of choice and control over decisions affecting human life, with the maximum degree of self-determination and interdependence within society. Article 19 of the Convention requires States parties to take effective and appropriate measures to promote the full realization by people with disabilities of their right to live in the community, on an equal footing with other options, and their full inclusion and involvement in the life of the local community, ensuring that people with disabilities have access to a range of support services at home, locally residential and other community-based support services, including personal assistance necessary to support life in and inclusion in the local community, and also to prevent isolation or segregation from the local community. The Committee further recalls that people with disabilities have the right to choose services and that, although individual support services may vary in name, type or type depending on the cultural, economic and geographical characteristics of the State party, they should all be designed to promote life in the local community, avoid isolation and segregation from others people and should in practice meet these goals (paragraph 9.2 of the Considerations).
The Committee recalls that, according to article 2 of the Convention, "discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability, the purpose or result of which is to diminish or deny the recognition, realization or exercise on an equal basis with others of all human rights and fundamental freedoms in political, economic, social, cultural, civil or any other areas. It also includes the denial of reasonable accommodation. The Committee also recalls that a law applied in a neutral manner may have a discriminatory effect if the special circumstances of the individuals to whom it applies are not taken into account. The right not to be discriminated against in the enjoyment of the rights guaranteed by the Convention may be violated if the State does not treat persons whose situation differs significantly without objective and reasonable grounds. The Committee further recalls that in the case of indirect discrimination, laws, policies or practices that at first glance appear to be neutral have a disproportionate negative impact on people with disabilities. Indirect discrimination occurs when an opportunity that seems to be available turns out to be inaccessible in practice for some people due to the fact that their status does not allow them to take advantage of such an opportunity. The Committee notes that, in accordance with article 5, paragraph 1, of the Convention, States parties recognize that all people are equal before the law and have the right to equal protection and equal enjoyment of it without discrimination of any kind and, on the basis of article 5, paragraph 2, States parties are obliged to prohibit any discrimination on the basis of disability and guarantee equal and effective legal protection to persons with disabilities protection against discrimination on any ground (paragraph 9.5 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author's argument is taken into account that only personal assistance is suitable for him to live independently in his home. The Committee also noted the State party's argument that independent living for a person with a disability can be provided through special serviced housing, another type of service defined in the Law on Social Support for People with Disabilities. The Committee further pointed out the differences between the parties regarding the suitability of special serviced housing for the author's needs, the availability of such housing and the author's consent to live in it. In any case, the Committee stressed that the State party had not demonstrated in practice the suitability of serviced housing to meet the author's needs. On the contrary, it refused his request for personal assistance at home on the grounds that he was unable to make a choice - this argument seems to be a manifestation of abelism and contradicts the human rights model of disability (A/HRC/43/41, paragraphs 9-15), in the opinion of the Committee. Given the absence of elements that could show the practical application of this theoretical type of service, the Committee considered that the rejection of the author's application for personal assistance deprived him of access to a practical option that could promote his independent life and inclusion in the local community (See the case "H.M. v. Sweden", paragraph 8.9). The Committee therefore concluded that the author's rights under article 19 (b) of the Convention had been violated (paragraph 9.3 of the Views).
The Committee noted that the author's application for a certain number of hours of personal assistance was not satisfied, since he did not meet the resource criterion provided for in article 8 of the Law on Social Support for People with Disabilities; that is, the applicant is unable to determine the content of the assistance that he will need to live independently in his own home, and how to provide it. The Committee also pointed out that the author was provided with fewer hours of personal assistance than he had requested, and this assistance was intended for his activities outside the home, and not at home. The Committee took note of the State party's argument that the purpose of personal assistance is to support the personal choice - in other words, the right to self-determination - of people with disabilities. It also noted the State party's statement that this goal cannot be achieved if a person with a disability is unable to make his own choice. The Committee took into account the author's argument that the requirement that people with disabilities be able to determine the content of assistance and how it is provided - without support in decision-making - is discriminatory against persons with intellectual disabilities, since they require support for this (paragraph 9.6 of the Views).
In the present case, the Committee noted that the author had been provided with personal assistance while away from home. The State party did not explain on what basis it was considered that the author was able to determine the content of the assistance he needed on the street, but did not have the same ability with regard to the assistance provided indoors. The State party also did not explain how such a requirement with an intellectual component - the ability to determine the content of assistance and how it is provided - allows people in need of support to be able to express their choice on an equal basis with others. The Committee therefore concluded that in the present case, in the absence of an objective and reasonable justification by the State party, the application of the resource criterion under article 8 of the Law on Social Support for Persons with Disabilities disproportionately affected the author as a person who needs support to meet this criterion and led to him being subjected to indirect discrimination (paragraph 9.7 of the Considerations).
The Committee summarized: The fact that the national authorities rejected the author's request for personal assistance on the basis of criteria that are indirectly discriminatory for persons with intellectual disabilities, led to a diminution or denial of the author's realization or exercise of the right to an independent lifestyle and involvement in the local community on an equal basis with others in violation of his rights provided for in paragraphs 1 and 2 of article 5 considered separately and in conjunction with article 19 of the Convention (paragraph 9.8 of the Views).
The Committee's conclusions: The State party has failed to comply with its obligations contained in article 19, subparagraph (b), and article 5, paragraphs 1 and 2, considered separately and in conjunction with article 19 of the Convention.