Last Updated on April 13, 2019 by LawEuro
International Federation for Human Rights (FIDH) v. Belgium, Complaint No. 75/2011, decision on the merits of 18 March 2013
A. Violation of Article 14§1 because of the significant obstacles to equal and effective access for highly dependent adults with disabilities to social welfare services appropriate to their needs
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article 14§1 of the Charter on the ground that there were significant obstacles to equal and effective access for highly dependent adults with disabilities to social welfare services appropriate to their needs.
2. Information provided by the Government
The Government states in the information recorded on 4 November 2014 that each of the three regions has taken steps to resolve the situation of non-conformity.
With regard to the Flemish-speaking Region, the Flemish Government pointed out that the VlaamsAgentschapvoorPersonen met een Handicap(VAPH) planned to increase and diversify support for persons with minor disabilities so as to fr282ee up places in care facilities for highly dependent persons with disabilities.
The concept note entitled “Plans for 2020 – a new form of support for people with disabilities” sets two targets which should be achieved by 2020:
– in 2020, care is to be guaranteed for persons with disabilities who need the most support. This will take the form of assistance in kind or a monetary allowance.
– In 2020, highly dependent adults with disabilities who have access to information are to be entitled to demand-based care and assistance.
Currently, the VAPH’s budget is €1.36 billion, €1.25 billion of which is earmarked for assistance of various kinds for 40 800 persons with disabilities. The Flemish Government has promised to add €145 million to what the VAPH receives annually in the course of this legislature (2014-2019). This will free up major funds for quality assistance at the request of users for highly dependent persons with disabilities who require more complex forms of care.
The system has also been overhauled to solve the problem of the 22 000 people on waiting lists, 63% of whom are awaiting assistance from the VAPH.
Where the Walloon Region is concerned, a new management contract was drawn up in June 2012 between the Walloon Government and the Walloon Agency for the Integration of People with Disabilities (AWIPH) for a five-year period (2012-2017).
The AWIPH, which in 2009 established a single waiting list, has estimated at 485 the number of highly dependent persons waiting for a solution to be offered. However the information does not state the date to which this figure refers. In its 2013 budget, the AWIPH earmarked € 1.6 million for the creation of about fifty places for new priority cases, the aim being to create 500 additional places by the end of the current management contract in 2017. It should be noted that the creation of 500 care and accommodation places requires a total budget of some €20 million.
The AWIPH also plans to transform residential places for adults into supervised housing. The information provided states that this transformation process was to enable about 60 persons with a high-dependency disability to be admitted to a residential service for adults in 2013, without, however, stating whether the goal was achieved.
The information indicates that creating additional care and accommodation places for people with a high-dependency disability, and combining this with an increased range of alternative services to satisfy users’ and families’ wishes, must comply with three criteria:
– a reasonable deadline: 2017;
– measurable progress: a programme for the creation of places and an implementation timetable have been proposed;
– a funding arrangement which makes the best possible use of available resources: the AWIPH’s grant amounts to € 582 million, which is over 8% of the total budget of the Walloon Region and nearly 60% of the budget of its Health, Social Welfare and Equal Opportunities Department. Some of the measures that are proposed will have an impact on the budget while others will make it possible to increase the care provided for people with a high-dependency disability without increasing the budget. The estimated budget increase is estimated at some € 2.4 million per year and this has to be accepted by the Walloon Government when the budget is drawn up and then be approved by the Walloon Parliament.
In the Brussels-Capital Region new places, most of which are reserved for persons with a high-dependence disability, have been created thanks to the programme of activities of the Joint Community Commission (COCOM). The new Artémia day-care centre has been providing for twenty additional persons, including ten with a high-dependency disability, since December 2013 while the Orfea centre has been catering for the same number of persons, also including ten highly dependent persons, since March 2013. A new accommodation centre called “le Potelier” is also being built, and will provide twenty places for adults with mental disabilities including some highly dependent persons.
The Order of 15 March 2013 has introduced a high dependency care provision standard.
Under the programme of activities of the French Community Commission, new places are to be created in existing day and accommodation centres, and a High Dependency Action Plan and a long-term infrastructure plan are to be drawn up by the PHARE department. All of these measures will be put in place over the next few years. The decree on the integration of persons with disabilities (the “Integration Decree”) was adopted on 17 January 2014 and the order bringing it into force was adopted on 7 May 2015.
3. Assessment of the follow-up
With regard to the Flemish Region, the Committee considers that progress has been made towards ensuring that highly dependent adults with disabilities have equal and effective access to welfare services. However, not all of the measures envisaged have been adopted to date and 63% of persons with disabilities are still awaiting a solution. The Committee asks that the information on the follow-up given to decisions that will be submitted in October 2017 indicate the percentage of highly dependent adults with disabilities who have access to welfare services. The Committee will therefore assess the situation on the basis of this information.
With regard to the Walloon Region, the Committee considers that progress has been made towards ensuring that highly dependent adults with disabilities have equal and effective access to welfare services. The Committee takes note of the measures envisaged and invites the Government to confirm in the information on the follow-up given to decisions that will be submitted in October 2017, whether this objective has been met.
With regard to the Brussels-Capital Region, the Committee takes note of the measures taken. The Committee considers that progress has progress has been made to ensure that highly dependent adults with disabilities have equal and effective access to welfare services. However, not all of the measures provided for have been adopted to date. The Committee asks that the next information indicate the percentage of highly dependent adults with disabilities who do not have access to welfare services. The Committee will assess whether the measures taken ensure that all members of this group have access to welfare services on the basis of the information on the follow-up given to decisions that will be submitted in October 2017.
The Committee finds that the situation has not been brought into conformity with the Charter.
B. Violation of Article 14§1 because of the lack of institutionsgivingadvice, information and personal help to highlydependentadults with disabilities in the Brussels-Capital Region
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article 14§1 of the Charter on the ground that were no institutions in the Brussels-Capital Region providing advice, information and personal help to highly dependent adults with disabilities.
2. Information provided by the Government
The Government states in the information recorded on 4 November 2014 that the Cocom certifies and finances day centres, accommodation centres, day-to-day assistance services and grouped housing services. It also certifies general social services open to everyone. There are also several facilities in Brussels which are particularly suited to the needs of highly dependent adults with disabilities, both among associations providing assistance for individuals and through bodies such as the PHARE department, which co-operates with the CoCom.
3. Assessment of the follow-up
The Committee notes that there are day centres, housing services and day-to-day assistance centres in the Brussels-Capital Region which provide advice, information and personal assistance to highly dependent adults with disabilities.
The Committee asks for confirmation that these welfare services meet the following criteria:
– trained staff in sufficient numbers;
– highly dependent adults with disabilities should be involved in decisions concerning them as much as possible;
– public and private mechanisms for supervising the adequacy of services.
The Committee finds that the situation has not been brought into conformity with the Charter.
C. Violation of Article 16
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article 16 of the Charter on the ground that the shortage of care solutions and of social services adapted to the needs of persons with severe disabilities caused many families to live in precarious circumstances, undermining their cohesion, and amounted, on the part of the State, to a lack of protection of the family as a unit of society.
2. Information provided by the Government
The Committee refers to the information provided above concerning the violation of Article 14§1 of the Charter on the ground that there are significant obstacles to equal and effective access for highly dependent adults with disabilities to social welfare services appropriate to their needs.
3. Assessment of the follow-up
The Committee admittedly noted above that progress had been made in different parts of the country; nevertheless, it considers that the shortage of care solutions and of social services adapted to the needs of persons with severe disabilities means that many families continue to live in precarious circumstances.
The Committee finds that the situation has not been brought into conformity with the Charter.
D. Violation of Article 30
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article 30 of the Charter on the ground that the State’s failure to collect reliable data and statistics throughout the metropolitan territory of Belgium in respect of highly dependent persons with disabilities prevented an overall and co-ordinated approach to the social protection of these persons and constituted an obstacle to the development of targeted policies concerning them.
2. Information provided by the Government
The Government indicates in the information registered on 4 November 2014 that there is no mechanism for collecting reliable data and statistics on highly dependent persons with disabilities at the level of the metropolitan territory of Belgium.
The information indicates that, with a view to addressing this shortcoming, the section on persons with disabilities of the Interministerial Conference on Well-being, Sport and the Family of 22 May 2012, which brought together the political authorities of the federal state and the federated entities responsible for disability policies, had set up a working group, whose tasks are as follows: to agree on a common definition of disability and define the criteria that have to be met; and to set up a system to centralise all the available data which could be of use to stakeholders in the disability field. This working group is made up of experts in the management of existing databases at federal and federated entity level. The workis in progress.
3. Assessment of the follow-up
The Committee takes note of the work currently being done by the working group to enable the State to collect reliable data and statistics throughout the metropolitan territory of Belgium in respect of highly dependent persons with disabilities. The Committee will assess on the basis of the information on the follow-up given to decisions that will be submitted in October 2017, whether data and statistics thus collected have led to an overall and co-ordinated approach with a view to giving highly dependent persons with disabilities and their families access to welfare and medical assistance.
The Committee finds that the situation has not been brought into conformity with the Charter.
E. Violation of Article E taken in conjunction with Article 14§1
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article E taken in conjunction with Article 14§1 on the ground that Belgium was not creating sufficient day and night care facilities to prevent the exclusion of many highly dependent persons with disabilities from social welfare services appropriate to their specific, tangible needs.
2. Information provided by the Government
The Committee refers to the information provided above concerning the violation of Article 14§1 of the Charter on the ground that there are significant obstacles to equal and effective access for highly dependent adults with disabilities to social welfare services appropriate to their needs.
3. Assessment of the follow-up
The Committee considers that the measures envisaged to comply with Article 14§1 of the Charter indicate that the Belgian authorities are taking account of the particular situation and needs of highly dependent adults with disabilities. As this group is taken into account in social policies, the Committee finds that the situation has been brought into conformity with the Charter.
F. Violation of Article E taken in conjunction with Article 16
1. The Committee’s decision on the merits of the complaint
The Committee concluded that there had been a violation of Article E taken in conjunction with Article 16 on the ground that the shortage of care solutions and of social services adapted to the needs of persons with severe disabilities obliged highly dependent persons to live with their families and caused many families to live in precarious and vulnerable circumstances.
2. Information provided by the Government
The Committee refers to the information provided above concerning the violation of Article 14§1 of the Charter on the ground that there are significant obstacles to equal and effective access for highly dependent adults with disabilities to social welfare services appropriate to their needs.
3. Assessment of the follow-up
Although the Committee considered with regard to Article 16 that families continued to live in precarious circumstances, the measures envisaged show that the public authorities are dealing with the situation of highly dependent adults with disabilities and with that of their families. As the discrimination against highly dependent adults with disabilities has been eliminated, the Committee finds that the situation has been brought into conformity with the Charter.
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