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1. Committee on the Rights of Persons with Disabilities

Convention on the Rights of Persons with Disabilities

 

The CRPD is the first legally binding human rights instrument that requires reasonable accommodation to be accorded to persons with disabilities so as to enable them to exercise their rights fully and equally with other persons. The CRPD makes clear that a failure to comply with the duty to provide reasonable accommodation is a form of discrimination. Given that Article 2 defines “discrimination on the basis of disability” to specifically include the “denial of reasonable accommodation”, the obligation under Article 5(2) to “prohibit all discrimination on the basis of disability” includes an obligation to provide reasonable accommodation to persons with disabilities. Article 5(3), which requires States Parties to “take all appropriate steps to ensure that reasonable accommodation is provided”, includes the obligation to impose the duty to provide reasonable accommodation to different sectors of society such as transportation providers, employers, and schools.

 

Article 2 defines “reasonable accommodation” as meaning “the necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. The reference to “particular case” highlights the case-specific nature of the obligation. Put another way, Article 3 requires duty-bearers to provide necessary and appropriate modifications and adjustments to cater to the particular needs of the individual in question. In turn, this requires understanding the specific needs of or obstacles faced by the individual (instead of making assumptions as to what may be most necessary and appropriate). Even persons with the same disability may require different forms of modification and adjustment. The General Comment on Article 9 (Accessibility) describes the concept of reasonable accommodation as an ex nunc duty – which means that it is enforceable from the moment an individual with an impairment requires it in order to enjoy their rights on an equal basis in a particular context. For example, this duty could arise in the workplace or school.

 

The concept of reasonable accommodation cuts across all aspects of rights and requires that the specific needs of a person with disabilities to be taken into account when duty-bearers provide “appropriate modification and adjustments”. For example, in education, reasonable accommodation may require alternative ways of assessment, additional teaching assistance, or assistive technology. In the workplace, reasonable accommodation may require different scheduling, physical space adaptations, or the use of interpreters. The concept of reasonable accommodation is mentioned in a number of articles in the CRPD, including Article 5 (Equality and Non-discrimination), Article 24 (Education), and Article 27 (Work and Employment).

 

The extent of the accommodation required is measured against the “disproportionate or undue burden” that may be imposed on the duty-bearer (e.g. schools, employers, service providers). The determination on whether a burden is disproportionate or undue is not confined to financial costs and extends to considerations such as time and the administrative steps necessary to make the adjustment or modification. Other considerations include whether the accommodation would interrupt the existing operations of the duty-bearer. In assessing whether a disproportionate or undue burden has been imposed on the duty-bearer, a case-specific approach is taken and the circumstances of the particular duty-bearer are considered. For example, in employment, factors such as the size and structure of the employer and the scope of its business may be taken into account to assess the burden imposed on the employer.

 

General Comments

The CRPD Committee has not issued a General Comment specifically addressing reasonable accommodation. Nevertheless, General Comment No. 2 on Article 9 (Accessibility) discusses the relationship between reasonable accommodation and accessibility.

 

General Comment No. 2 emphasizes that “[a]ccessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies”. Article 9 of the CRPD stipulates that “to enable persons with disabilities to live independently and participate fully in all aspects of life, States parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communication, including information and communication technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas”. Accordingly, any goods, products, and services open or provided to the public must be accessible to all in a manner that ensures effective and equal access by persons with disabilities and respect for dignity (regardless of the type of impairment and without regard as to whether the goods, products, or services are owned and/or provided by a public authority or a private enterprises).

 

General Comment No. 2 considers the relationship between accessibility and reasonable accommodation. It recognizes that accessibility relates to groups, while reasonable accommodation relates to individuals In other words, accessibility is not a duty owed to a particular individual with disabilities. As explained in the General Comment “accessibility standards must be broad and standardized”. The accessibility obligation is an ex-ante duty, which means that States Parties “have the duty to provide accessibility before receiving an individual request to enter or use a place or service”. The obligation to provide reasonable accommodation, on the other hand, is an ex nunc duty which means that it is enforceable from the moment an individual with an impairment needs it in a given situation in order to enjoy their rights on an equal basis in a particular context (i.e. in a workplace or school).

 

In practical terms, the more accessible the goods, products, or service, the less likely a person with any disabilities would seek reasonable accommodation. For example, there would be no need to provide reasonable accommodation for a person on a wheelchair if a building has ramps installed. However, a person with a rare impairment might have difficulty in accessing a particular service even though the service provider has fulfilled its duty to ensure accessibility. In such circumstances, the duty of reasonable accommodation may arise if the person asks for accommodation that falls outside the scope of the accessibility standard, depending on whether the request imposes a disproportionate or undue burden on the service provider.

 

The difference between accessibility and reasonable accommodation affects how the respective duties may be discharged. Since reasonable accommodation concerns a particular person, only that person can determine whether the modification or adjustment is required. On the other hand, a duty-bearer may comply with the accessibility obligation by consulting representatives of disabled persons (e.g. non-governmental organizations or disabled people’s organizations) or adhering to established standards regarding accessibility in the particular goods, products, or services provided by the duty-bearer. Moreover, the accessibility obligation is unconditional in that the duty-bearer will not be excused by arguing the obligation would impose a disproportionate or undue burden on it.

 

The General Comment No. 2 is accessible here.

 

Concluding Observations

The CRPD Committee recommends that in order to give full recognition to equality and non-discrimination rights under Article 5, States Parties should legislate to prohibit discrimination based on disability and multiple forms of discrimination experienced by persons with disabilities expressly. In particular, concerning the obligation to provide reasonable accommodation, States Parties are urged to incorporate the concept of reasonable accommodation into legislation and ensure that all relevant laws and regulations clearly affirm the denial of reasonable accommodation as a form of discrimination on the grounds of disability. The CRPD Committee also recommends States Parties to establish an effective monitoring mechanism to deal with all aspects of compliance with such anti-discrimination legislation, including the possibility for persons with disabilities to seek redress and commensurate compensation for discrimination based on disability. The CRPD Committee further recommends States Parties to initiate training for public and private actors (including but not limited to juridical persons, civil servants, and representatives organizations of persons with disabilities) on disability discrimination and the duty to provide reasonable accommodation to persons with disabilities.

 

In particular, the CRPD Committee recommends the following in the Concluding Observations to the initial report submitted by China:

 

“The Committee expressly encourages the State party to provide a legal definition of discrimination against persons with disabilities and include in such a definition of the prohibition of indirect discrimination. The Committee suggests including a definition of reasonable accommodation in Chinese law which reflects the Convention definition covering necessary and appropriate modification and adjustment applicable in a particular case beyond general accessibility. Furthermore, the State party should ensure that the law explicitly recognizes the refusal of reasonable accommodation constitutes disability-based discrimination”.

 

The excerpts from all of the Concluding Observations issued by the CRPD Committee relating to reasonable accommodation are accessible here.

 

Views on Individual Communications

The following summaries concern cases relating to reasonable accommodation heard by the Committee:

F v Austria

Applicant: F

State Party: Austria

Treaty-based Body: Committee on the Rights of Persons with Disabilities

Date Decided: 21 September 2015

Case Synopsis: The Applicant, who is deaf, complained that the local authorities in Linz, in Upper Austria, failed to install digital audio systems on the extended rail network. The digital audio system reproduces the written text of digital information displays and provides real-time information on the direction of the trams, their arrival and departure time and disruptions of services.  It has been installed on existing rail networks but not the extended one.

The Applicant complained that Austria’s failure to install an audio system on tram line 3 violates the two-senses principle of accessibility, according to which all information, including guidance aids, must be perceivable by a minimum of two senses out of three (hearing, sight and touch) to enable visually impaired and hearing impaired people to access all important information without outside assistance. The Applicant further argues that the lack of an audio system prevents him, as a person with visual impairment, to access information that is only visually available. He considers this barrier of communication to amount to discrimination, as it deprives him of the use of transportation services on an equal basis with others, in breach of Articles 5 and 9. The Applicant considers the refusal by the State Party to remove those barriers as constituting a breach of Articles 19 and 20 (as the lack of an audio system on line 3 prevents him from living an independent life and violates his right to personal mobility).

The CRPD Committee found violations of Articles 5 and 9 but not 19 or 20. The CRPD Committee noted the Applicant’s argument that the audio system would have provided him and other persons with visual impairment with immediate access to the real-time information available visually on an equal basis with others, while the existing alternatives(namely, different applications accessible through the Internet and mobile telephone, and the line message system) do not. The non-installation of the audio system by the State Party in extending the tram network therefore resulted into a denial of the access to information and communication technologies and to facilities and services open to the public on an equal basis with others, and therefore amounts to a violation of Articles 5 (2) and 9 (1) and (2) (f) and (h).

As regards the Applicant’s allegation under Articles 19 and 20, the CRPD Committee noted that the Applicant did not provide sufficient elements to enable it to assess the extent that the lack of an audio system affects his right to personal mobility and live independently. Consequently, the CRPD Committee is of the view that it cannot establish a violation of Articles 19 and 20 in this case.

The full case is accessible here.

A.M. v Australia

Applicant: A.M.

State Party: Australia

Treaty-based Body: Committee on the Rights of Persons with Disabilities

Date Decided: 29 May 2015

Case Synopsis: The Applicant is deaf and requires Australian Sign Language (Auslan) to communicate with others. He complained that the New South Wales government excludes deaf persons who require Auslan interpretation from participating in jury service.  The Applicant alleges that Australia violated his rights under the following articles:

a)    Article 12 regarding legal capacity: refusal to permit Auslan interpretation of courtroom proceedings and jury deliberations to enable participation in jury duty (should he be selected) constitutes a violation of his right to enjoy legal capacity on an equal basis with others;

b)    Article 13 regarding the right to effective access to justice;

c)    Article 21 regarding access to information: the only accommodation available is hearing induction which is of no benefit to the Applicant who is deaf; and

d)    Article 28 regarding the right to participate in the conduct of public affairs and right to have access to public service, on an equal basis with others.

The CRPD Committee found the Application inadmissible as the Applicant lacks victim status. The Application is hypothetical as the Applicant submitted only that he may be imminently selected from the Electoral Roll to perform jury duties.

The full case is accessible here.

Szilvia Nyusti v Hungary

Applicant: Szilvia Nyusti

State Party: Hungary
Treaty-based Body: Committee on the Rights of Persons with Disabilities
Date Decided: 16 April 2013

Case Synopsis: Both Applicants were visually impaired and had concluded contracts for private account services with OTP Bank (“OTP”).  Despite paying the same annual fees for banking services and transactions as other OTP clients, they were denied access on an equal basis with other clients from using OTP’s ATMs (which lacked Braille fonts, audible instructions and voice assistance).  The CRPD Committee found that Hungary failed to ensure accessible banking services, including those provided by OTP and other private financial institutions, for persons with visual impairments, in violation of Article 9(2)(b) (accessibility).  It upheld the obligation of Hungary to ensure that private entities which offer facilities and services to the public take into account all aspects of accessibility for persons with disabilities, by creating a legislative framework to monitor their modifications for achieving full accessibility.

A detailed case summary is accessible here, and the full case here.

H.M. v Sweden

Applicant: H.M.
State Party: Sweden
Treaty-based Body: Committee on the Rights of Persons with Disabilities
Date Decided: Communication adopted by the Committee on the Rights of Persons with Disabilities at its 7th session 16 to 27 April 2012

Case Synopsis: The Applicant is a Swedish woman whose physical disability causes her to be housebound. Hydrotherapy is the only available therapy for her condition and she cannot safely be transported to government-run facilities. The Applicant’s request for approval to build a hydrotherapy pool at her home was rejected because it would require deviation from the zoning plan. The CRPD Committee found this refusal inappropriate and amounting to discrimination as Sweden failed to make reasonable accommodations so that persons with disabilities, such as the Applicant, could enjoy their rights.

A detailed case summary is accessible here, and the full case here.

2. Committee on Economic, Social and Cultural Rights (“ESCR Committee”)

 

Although not explicitly mentioned in the International Convention on Economic, Social and Cultural Rights (“ICESCR”), reasonable accommodation is closely linked to the rights guaranteed in the ICESCR as it is indispensable for the practical enjoyment of such rights by persons with disabilities.

 

The ESCR Committee’s Concluding Observations on the second periodic report of China published on 13 June 2014 (pdf) commented on the lack of reasonable accommodation for persons with disabilities in the area of employment. It stated:

 

[…]

 
 

3. European Court of Human Rights

European Convention on Human Rights (“ECHR”)

The ECHR does not directly address the right to reasonable accommodation. However, the right to private life under Article 8 and the freedom against torture, cruel, inhuman or degrading treatment under Article 3 are potentially relevant in this respect. The non-discrimination provision under Article 14 may also address the right to reasonable accommodation.

 

ECHR cases

The following summaries of cases at the European Court of Human Rights (“ECtHR”) concern reasonable accommodation:

Semikhvostov v Russia

Applicant: Aleksandr Yuryevich Semikhvostov

Member State: Russia

Court: European Court of Human Rights (ECtHR)

Date: 14 January 2014

Case Synopsis: The case was brought by a wheelchair-bound inmate who alleged to have suffered inhuman and degrading treatment at correctional facilities due to its unsuitable condition for inmates with disabilities and denial of reasonable accommodation (including a lack of independent access to prison facilities and lack of organized assistance for his mobility).

The ECtHR concluded that the restrictions on the Applicant’s personal mobility and lack of reasonable accommodation during his three-year long detention violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”). The ECtHR further held that the State’s failure to provide an effective remedy and stop the degrading treatment constituted a violation of Article 13 of the Convention.

 

A detailed case summary is accessible here. The full case is accessible here.

 

D.G. v. Poland

Applicant: D.G.

Member State: Poland

Court: European Court of Human Rights (ECtHR)

Date Decided: 22 January 2013

Case Synopsis: The Applicant, a paraplegic individual confined to a wheelchair, was sentenced to 8 years of imprisonment. He complained that the prison conditions did not adequately accommodate his state of health. In particular, he alleged that the prison facilities were not adapted to wheelchair-use, incontinent pads were not sufficiently supplied, and the cell was overcrowded and dirty. The Applicant claimed that such conditions subjected him to inhuman treatment or punishment under Article 3 of the .

 

A detailed case summary is accessible here., The full case is accessible here.

Zehlanova and Zehnal v Czech Republic      

 

Applicant: Zehlanova and Zehnal

Member State: Czech Republic

Court: European Court of Human Rights (ECtHR)

Date Decided: 14 May 2002

Case Synopsis: The first Applicant is a person with disability. The second Applicant is the husband of the first Applicant. The applicants complained that a large number of public buildings and buildings open to the public in the applicants’ home town are not equipped with access facilities for persons with disabilities (persons with impaired mobility). They argued that Articles 1, 3, 8 and 14 of the Convention were violated. The ECtHR held the application inadmissible inter alia because there was no direct link between the applicants’ enjoyment of private life and the measures the State was being urged to take in order to remedy the failure to provide barrier-free access to public buildings.

 

The full case is accessible here.

Arutyunyan v Russia  

Applicant: Arutyunyan

Member state: Russia

Court: European Court of Human Rights (ECtHR)

Date decided: 10 January 2012

Case Synopsis: The Applicant was a wheelchair-bound person with numerous health problems including a failing renal transplant, extremely poor eyesight, severe obesity, and a serious form of insular diabetes.

The Applicant alleged he had been denied adequate medical assistance during an unreasonably long pre-trial detention period, that a certain period of his pre-trial detention lacked any legal basis, and that the conditions of his detention had been unsuitable for a person in his state of health. In particular, he argued that the failure to provide an elevator had led to a deterioration of his health because  it was impossible for him to move from his cell on the fourth floor to the recreation yard (and therefore, he could not engage in daily outdoor recreation and physical exercise).

The ECtHR found a violation of Article 3 as the detention authorities were unable to adequately accommodate the Applicant’s special needs. In particular, the failure to provide a lift meant that the Applicant had to climb up and down 4 flights of stairs regularly in order for him to access the administrative, technical, recreational, and medical facilities both within and outside the building (such as the courthouse or hospitals). The ECtHR found that such ordeal, to a seriously disabled person such as the Applicant, was serious enough to constitute cruel, inhuman or degrading treatment.

 

The full case is accessible here.


Botta v Italy


Applicant: Botta

Member State: Italy

Court: European Court of Human Rights (ECtHR)

Date Decided: 24 February 1998

Case Synopsis: The Applicant, an Italian citizen, was physically disabled. Upon going on  holiday in August 1990, he discovered that the private beaches were not equipped with facilities (namely special access ramps, lavatories, and washrooms) to sufficiently enable persons with disabilities to access the beach and sea (as required by Italian law). After complaining to the mayor of Commachio, no significant improvement was made. Therefore, in order to remedy the omission of private bathing establishments, he attempted to rely on local legislation such as the Criminal Code to file a lawsuit against the Government. When he failed to seek justice from the national courts, he filed a claim at the ECtHR and alleged that the State should “guarantee the right of people with disabilities to an independent life and full integration into society”, on the basic of equal opportunity and without discrimination.

 

A detailed case summary is accessible here. The full case is accessible here.