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Article 19 - Living independently and being included in the community
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Fourth Session
Governments
Non-governmental organizations
Children's Rights Alliance for England
International Disability Caucus
Landmine Survivors Network
People with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
Canadian amendments to art. 15
(d) community services for the general population are available to p}sons
with disabilities on an equal basis with o!rs and are responsive to their
needs;
Article 15 : Living independently and being included in the community
We endorse Mexico's proposal to change the title of this article by means
of a broader wording consistent with the preamble and principles of the
Convention: "Independent living and inclusion in the community".
In subparagraph (a), we propose replacing the phrase "and living arrangements"
with "develop their own life plans" since the latter concept is
broader and more universal and covers various aspects of an independent
life. The text would read thus:
(a) "Persons with disabilities have the equal opportunity to choose
their place of residence and to develop their own life plans."
We endorse the Philippines proposal but it should be in an independent subparagraph,
since it deals with a topic of considerable importance and gives concrete
expression to a general principle of this Convention (article 2, subparagraph
(c) ) – the participation of persons with disabilities. The proposal states
that:
"Persons with disabilities are allowed to become members and active
participants in community organizations and instrumentalities of their choice.
There shall be policies and facilities to assist persons with disabilities
to qualify for membership and to be able to participate"
We endorse the European Union's proposal to insert a paragraph 2 that would
refer to the need for States Parties to take appropriate measures to promote
the provision of life assistance in order to enable persons with disabilities
to live independently .
EUROPEAN
UNION
Draft Article 15
LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
1. States Parties to this Convention shall take effective and appropriate
measures to enable persons with disabilities to live independently and be
fully included in the community, including by ensuring that:
EU Proposal:The EU suggests the following rewording: “States Parties
shall take appropriate measures to facilitate persons with disabilities
to live independently and be fully included in the community, including
measures aimed at ensuring that:”.
(a) persons with disabilities have the equal opportunity to choose their
place of residence and living arrangements;
(b) persons with disabilities are not obliged to live in an institution
or in a particular living arrangement
EU Proposal: Insert "Save as provided in Article 10" at
end of (b)
(c) that persons with disabilities have access to a range of in-home, residential
and other community support services, including personal assistance, necessary
to support living and inclusion in the community, and to prevent isolation
or segregation from the community;
EU Proposal: Delete (c) and replace by new paragraph 2 as below
(d) community services for the general population are available on an equal
basis to persons with disabilities and are responsive to their needs;
EU Proposal: The EU suggests replacing “on an equal basis” with
“without discrimination”.
(e) persons with disabilities have access to information about available
support services;
EU Proposal: EU suggests the inclusion of a new Article 15 (2) as follows:
“States Parties shall also take appropriate measures to promote the provision
of life assistance in order to enable persons with disabilities to live
independently”.
ISRAEL
Article 15: “Living Independently and Being Part the Community”
Comments on Behalf of the State of Israel
We would like to make two comments on Article 15.
Firstly, with regards to the use of the term “independence” in the title
and in the chapeau of this article: Many of the privileges of and services
for people with disabilities are based on the levels of functional dependency.
Thus, the use of the term “independence” in the formulation of Article 15
might be interpreted by many professionals as contradictory to the spirit
of the convention and the idea of living in a community, and still contingent
upon physical or psychosocial dependency.
Accordingly, we suggest that the title of Article 15 refer, generally, to
the right of “living in the Community” as a basic, unconditional principle,
and that the article emphasizes the principle that the right to live in
the community and to take part in all its activities and/or contribute to
society belongs to every person and derives from the right to equality,
regardless of the level of physical or psychosocial independence.
Secondly, we believe that an inherent part of one’s right to life in the
community is the “freedom of choice,” that is the right to make decisions,
and to choose the time, the place, and the frame of life within the community,
but also the right to choose the definition of what “community” means. There
are various ways of living. Omitting any one of the options, including the
right to choose to live independently or in partially independent facilities,
is a violation of human rights. Persons with disabilities are the only ones
who can make their own choices and decisions.
NEW ZEALAND
ARTICLE 15: Living And Being Included In The Community With Choices
Equal To Others
• The rights expressed in this article are very important for disabled people
and represent in a positive form the alternative to institutionalisation,
a policy that has led to the violation of so many human rights for disabled
people.
• A large number of amendments were proposed for the title and content of
this article, perhaps reflecting a lack of clarity about the overall purpose
of the article in the current wording.
• New Zealand considers that fundamentally this article is about ensuring
that disabled people have choices equal to others to move around and live
where and as they wish in a community setting. This is based on a civil
and political right, outlined in Article 12 (1) of the Covenant on Civil
and Political Rights, ‘to liberty of movement and freedom to choose his
[/her] residence’.
• We have amended the working group text to first state this right and to
then outline the necessary measures that States need to take so the right
may be exercised.
• The EU proposed changes that would strengthen the idea that the article
is about avoiding institutionalisation and retaining liberty. We support
many aspects of the EU’s proposals but we also seek to reinforce the inclusion
into the community as ‘ordinary citizens’ with rights equal to others.
• New Zealand also proposes shifting various related clauses from other
articles, with some amendments, into this article:
o 23(1)(d) which is about access to housing programmes on an equal basis
to others;
o 20(a) regarding mobility - to use this to amend what would become sub-paragraph
3 under the EU proposed amendment of 1(c) of the Working Group text;
o 9(e) regarding promoting equal access to opportunities for economic development
and financial independence.
• We have also proposed some wording that reflects the idea that access
to personal support should allow for people to choose where they live and,
therefore, must be separate from access to housing. This avoids an institutional
approach to support provision.
• Our suggested rewording is as follows (underlined text has been inserted
by New Zealand; struck out text has been deleted by New Zealand):
LIVING AND BEING INCLUDED IN THE COMMUNITY WITH CHOICES EQUAL TO
OTHERS
1. States Parties shall reaffirm the right of persons with disabilities
to liberty of movement and freedom to choose his or her residence. States
Parties shall ensure persons with disabilities have the equal opportunity
to determine how, where, and with whom they live.
2. States Parties to this Convention shall take effective and appropriate
measures to enable persons with disabilities to live in, independently and
to be fully included as members of in the community. States Parties shall
take measures to including by ensure that:
a. community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their
needs;
b. persons with disabilities have equal access to governmental housing programs;
and
c. persons with disabilities have access to information about available
community services, including support services.
3. States Parties shall also take appropriate measures to promote the provision
of in-home, residential and other community support services, including
personal assistance, necessary to support them persons with disabilities
to live and participate living and inclusion in the community with choices
equal to others, and to prevent isolation or segregation from the community.
States parties shall ensure that these support services are provided in
a manner that recognises the autonomy, individality and dignity of persons
with disabilities and, in particular, that access to personal support is
consistent with the right to liberty of movement and freedom to choose a
residence.
4. States Parties shall take effective measures to ensure liberty of movement
mobility with the greatest possible independence for persons with disabilities,
including facilitating access by persons with disabilities to high-quality
mobility aids, devices, assistive technologies and forms of live assistance
and intermediaries. including by making them available at affordable cost.
5. States Parties shall take all appropriate and effective measures to ensure
the equal right of persons with disabilities to opportunities for economic
development and financial independence including to rent, own or inherit
property, to control their own financial affairs, and to have equal access
to bank loans, mortgage and other forms of financial credit.
Non-governmental organizations
Article 15 –
Intervention by Bizchut – The Israel Human Rights Center for People with
Disability
Thank you Mr./Madame Chair.
Bizchut – The Israel Human Rights Center for People with Disabilities, is
also a part of the International Disability Caucus, and lends its support
to the comments given by the Caucus. Bizchut would like to complement the
comments made by the International Disability Caucus with the following
additional comment:
In many countries, the still prevalent belief – translated into policy –
is that not all people with all disabilities are entitled to live within
the community. As a consequence, living in institutions is still the default
mainstream choice for people with disabilities, even where institutionalization
is not made compulsory.
Our position is that life in an institution, even if not under duress, contradicts
the most basic principles of equality and dignity, by denying life in normative
living frameworks in the community, and constitutes one of the most severe
violations of human rights.
Therefore, we suggest the inclusion of the basic right to life within the
community for all persons with disabilities, in the chapeau of Article 15
of the Convention, as follows (additions to current Working Group draft
are marked):
“State parties to this Convention recognize the right of every person with
disability to live with the community, in a living setting which reflects
the general norm in a given society. In accordance with this principle,
State parties shall take effective and appropriate measures to enable persons
with disabilities to live independently and be fully included in the community.”
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 15
Living independently and being included in the community
States Parties to this Convention shall take effective and appropriate measures
to enable persons with disabilities to live independently and be fully included
in the community, including by ensuring that:
(a) Persons with disabilities have the equal opportunity to choose their
place of residence and living arrangements;
(b) Persons with disabilities are not obliged to live in an institution
or in a particular living arrangement;
(c) That persons with disabilities have access to a range of in-home, residential
and other community support services, including personal assistance, necessary
to support living and inclusion in the community, and to prevent isolation
or segregation from the community;
(d) Community services for the general population are available on an equal
basis to persons with disabilities and are responsive to their needs;
(e) Persons with disabilities have access to information about available
support services.
INTERNATIONAL
DISABILITY CAUCUS
Draft Article 15: Living Independently and Being Included in the Community
1. Persons with disabilities have the right to choose where and with whom
they live.
2. States Parties shall take effective and appropriate measures to enable
persons with disabilities to live independently and be fully included as
members of the community. States Parties shall ensure that:
a. compulsory institutionalisation is prohibited;
b. persons with disabilities have access to a range of in-home, and community-based
supports, including personal assistance, peer support, and those supports
necessary to support them to live where they choose, to participate in the
community, and to prevent isolation or segregation from the community;
c. persons with disabilities have the freedom to choose whether to accept
any support, and if so, how those supports shall be provided and by whom.
For persons with communications disabilities, States Parties shall ensure
the necessary augmentative communications devices are provided for this
purpose;
d. children with disabilities live with their own family, or, where that
is not possible, live in another family situation;
e. community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their
needs;
f. persons with disabilities are provided information about community services,
including support services, and about their rights to access such services.
g. persons with disabilities have access to fair appeals processes to challenge
denial to them of government-funded supports and services.
LANDMINE SURVIVORS NETWORK
Draft Article 15 - LIVING INDEPENDENTLY AND BEING INCLUDED IN THE COMMUNITY
SYNTHESIS OF PROPOSALS
States Parties to this Convention shall take effective and appropriate measures
to enable persons with disabilities to live independently and be fully included
in the community, including measures aimed at ensuring that:
(a) persons with disabilities have the equal opportunity to determine how,
where, and with whom they live;
(b) children live with their own family or, where that is not possible,
live in another family situation;
(c) persons with disabilities have access to a range of in-home and other
community support services, including personal assistance, necessary to
support them to live where they choose, to participate in the community,
and to prevent their isolation or segregation from the community;
(d) community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their
needs;
(e) community support services are provided in a manner that recognizes
the autonomy, individuality and dignity of persons with disabilities;
(f) persons with disabilities have access to information about community
services, including support services; and
(g) persons with disabilities who require assistance communicating have
access to necessary and appropriate supports to enable them to express their
decisions, choices and wishes.
COMMENTS
The concepts expressed in Draft Article 15, namely, living independently
and community inclusion, are of fundamental importance and require explicit
expression in a separate article in the Convention. The inclusion of this
article by the Working Group in the first place signaled a recognition that
many people with disabilities throughout the world are segregated in an
institution as their only option for receiving assistance with core activities
of everyday living whiles they could live in the community were appropriate
long-term services and supports provided. The article recognizes the need
to end institutional bias and create meaningful and affordable opportunities
to receive community-based long-term services. No delegation objected to
the inclusion of this provision in the Convention, although a number of
delegations introduced suggested additions or amendments to improve the
text. Many of the suggested amendments were crafted in response to issues
outlined in the footnotes to Working Group Draft Text Article 15.
Draft Article 15 reflects all of the core principles underlying the Convention.
The language expressed in the Working Group text was derived from principles
found in existing international human rights law, in particular those principles
supporting the concept of community integration for people with disabilities.
(Cf. UN Committee on Economic, Social and Cultural Rights, General Comment
5 stating that, as a non-discrimination measures, governments must adopt
policies “to enable persons with disabilities to live an integrated, self-determined
and independent life.”) In addition, there are numerous examples of domestic
law supporting the concepts expressed in this article. For example, in Olmstead
v. Zimring, 527 U.S. 581 (1999), the United States Supreme Court held institutional
isolation is discriminatory and illegal under disability anti-discrimination
legislation and that people with disabilities must be provided with community-based
support services in the most integrated setting appropriate. Institutionalization
where appropriate community services are available constitutes dissimilar
treatment because such confinement itself perpetuates unwarranted assumptions
that the individual is incapable of participating in community life. Unnecessary
confinement diminishes the individual’s ability to have a social life and
family relations, to receive an education or to achieve economic independence
through employment.
Draft Article 15(1): The content of this paragraph received broad support
by governments during the third Ad Hoc Committee meeting. It expresses concepts
of independence or independent life as embodied in the principle of autonomy.
It also provides a framework for living a life outside of institutions in
a society in which barriers for full social inclusion and community participation
are removed and appropriate support services are made available to facilitate
independent living. (Cf. Submission by the Asia Pacific Forum of National
Human Rights Institutions to the third session of the Ad Hoc Committee,
May 2004, para. 47)
Draft Article 15(1)(a) represents a modification of the Working Group Draft
Text (proposed by New Zealand) and is an improvement on the drafting of
that article. It maintains the concept of choice of living arrangement within
the framework of equal opportunity, and introduces three interrelated concepts
– choice of with whom one lives, where one lives, and how one lives. The
emphasis is on choice and therefore leaves ample room for people with disabilities
to live in a variety of settings, including a family setting, and thereby
responding to concerns by some delegations that family living options must
be preserved.
Language in Working Group Draft Text Article 15(1)(b) has been deleted,
in keeping with proposals by a number of States who indicated that coverage
of institutionalization is already addressed elsewhere in the Convention.
Draft Article 15(1)(b) (bis) is a new sub-paragraph (as proposed by New
Zealand) that reflects the important principle that children with disabilities
have the right to live with their families and, where circumstances do not
permit, should in any case have the right to live in a family-based or community-based
arrangement. Rule 9(1) of the UNSR provides that people with disabilities
“should be enabled to live with their families” and further calls on States
to ensure that measures of support have been taken so that children with
disabilities remain with their families. This proposal is directly in line
with recommendations made by the Committee on the Rights of the Child concerning
the implementation of Article 23 (Children with Disabilities) repeatedly
emphasizing its concern regarding institutional placement, calling it a
“last resort.” The Committee has encouraged States Parties “to make every
effort to provide assistance for children with disabilities and support
services for their families, to the maximum extent possible on an out-patient
or community basis, thereby avoiding removal of children with disabilities
from their families for placement in institutions.” (Cf. Committee on the
Rights of the Child, Report on the twenty-fifth session, Sept./Oct. 2000,
CRC/C/100, paras. 688.17, 20-22, 24-25.) (Note that there is currently a
separate article concerning children with disabilities (Draft Article 16).)
Draft Article 15(1)(c) identifies some core components of support that people
with disabilities need in order to exercise their right to live independently
and be included in the community.
Draft Article 15(d) makes explicit that community services and facilities
must be made accessible to people with disabilities, thereby rendering meaningful
the concept of, in particular, community inclusion.
Draft Article 15(e) reflects the concept that the provision of services
to people with disabilities should be implemented in a manner that facilitates
the core values of independent living, as well as the guiding principles
of the Convention.
Draft Article 15(f) refers explicitly to the provision of information about
support services and reflects a major barrier to the access of services
by people with disabilities. Its inclusion in the Convention is therefore
essential. (Cf. UNSR, Rule 1(1))
Draft Article 15(g), (introduced by Canada), refers explicitly to support
services to aid independent living for people with disabilities requiring
assistance in communicating. This provision, while relating to independent
living, could potentially be covered in a revised article covering support
services (formerly personal mobility). The provision relates in part to
UNSR, Rule 5(b).
PEOPLE WITH DISABILITY AUSTRALIA
Article 15: Living
Independently and Being Included in the Community
We strongly support the Expert Working Group’s formulation of this article.
The ability to live independently in the community with the support services
necessary for this to occur is fundamental to the realization of many human
rights. The continued institutionalisation of people with disability remains
one of the greatest abuses of their human rights. It is essential that this
convention place an unequivocal obligation of State and non-State actors
to cease institutionalising people with disability, in disability specific
institutions, as well as other institutional settings, such as residential
aged care facilities. In this respect it is important that sub-paragraph
(b) is strengthened to require States to eliminate institutional care, rather
then merely “not oblige” people with disability to live in institutions.
If institutional care is the only form of residential of accommodation available,
people with disability will have no choice but to accept this form of assistance.
Institutions must therefore be removed entirely from the spectrum of State
provided or supported residential services. Further, this article ought
to require States to develop and implement plans to relocate people with
disability who are currently institutionalised to the community along with
the supports they require for successful community living.
It is also important that sub-paragraph (c) is particularized to the circumstances
of families and children with disability. Children with disability must
be enabled, wherever possible, to grow up in the context of a family, preferably
with their birth family, but where this is not possible, in a substitute
family, with the support services necessary to enable this to occur.
The article might therefore be amended to read:
1. …
(a) …
(b) No person with disability is placed in an institution. States Parties
who maintain institutional facilities at the time this convention enters
into force shall relocate residents to community living arrangements as
soon as practicable.
(c) Persons with disability and their families have access to a range of
in-home, residential, family and community support services, including personal
care and domestic assistance, necessary to support living and inclusion
in the community, and to prevent isolation or segregation from the community.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 15
Living and being in the community
Article 15 should be complimented with one more sub-issue:
(f) get support for independent living according to appropriate needs.