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Article 28 - Adequate standard
of living and social protection
Background Documents | Article
28 Background
Seventh Session | Sixth Session | Fourth
Session | Third Session
Working Group | References
Fourth Session
Governments
Sudan
Non-governmental organizations
Children's Rights Alliance for England
International Disability Caucus
Comments, proposals and amendments submitted electronically
Governments
PROPOSAL
ON DRAFT ARTICLE 23
SOCIAL SECURITY AND ADEQUATE STANDARD OF LIVING:
-Add to article 23 f the phrase in bold so it would read as follows:
Ensure that persons with disabilities are able to access life and health
insurance, where applicable, without discrimination on the basis of disability.
- Add to article 23-2 the phrase in bold so it would read as follows:
States parties recognize the right of all persons with disabilities to an
adequate standard of living for themselves and their families, including
and not confined to, adequate food, clothing, housing and access to clean
water, and to the cntinuous improvement of living conditions, and will undertake
appropriate steps to safeguard and promote the realization of this right.
Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 23
Social security and an adequate standard of living
1. States Parties recognize the right of all persons with disabilities to
social security, including social insurance, and to the enjoyment of that
right without discrimination on the basis of disability, and shall take
appropriate steps to safeguard and promote the realization of this right,
including measures to:
(a) Ensure access by persons with disabilities to necessary services, devices
and other assistance for disability-related needs;
(b) Ensure access by persons with disabilities, particularly women and girls
with disabilities and the aged with disabilities, to social security programmes
and poverty-reduction strategies, and to take into account the needs and
perspectives of persons with disabilities in all such programmes and strategies;
(c) Ensure access by persons with severe and multiple disabilities, and
their families, living in situations of poverty to assistance from the State
to cover disability-related expenses (including mobility and access to leisure
and recreational facilities and adequate training, counselling, financial
assistance and respite care), which should not become a disincentive to
develop themselves;
(d) Ensure access by persons with disabilities to governmental housing programmes,
including through earmarking percentages of governmental housing for persons
with disabilities, including young adults with disabilities leaving the
family home;
(e) Ensure access by persons with disabilities to tax exemptions and tax
benefits in respect of their income;
(f) Ensure that persons with disabilities are able to access life and health
insurance without discrimination on the basis of disability.
2. States Parties recognize the right of all persons with disabilities to
an adequate standard of living for themselves and their families, including
adequate food, clothing, housing and access to clean water, and to the continuous
improvement of living conditions, and will undertake appropriate steps to
safeguard and promote the realization of this right.
INTERNATIONAL DISABILITY CAUCUS
Draft Article 23: Adequate standard of living
States Parties recognize the right of all persons with disabilities to an
adequate standard of living for themselves and their families, including
adequate food, clothing, shelter and housing and access to clean water,
and to the continuous improvement of living conditions, and will undertake
appropriate steps to safeguard and promote the realization of this right,
including measures that:
a. Ensure equitable access by all persons with disabilities, particularly
women and girls with disabilities and aged persons with disabilities, and
their families to governmental poverty eradication strategy and program,
including international aid programs and ensure the participation of people
with disabilities in the definition and implementation of such programs.
b. Ensure the access by all persons with disabilities to housing or shelter
owned or administered by public authorities, public agencies and private
entities without any discrimination on the grounds of disability and ensure
the participation of people with disabilities in the definition and implementation
of programs and policies related to shelter and housing.
c. Ensure that persons with disabilities can freely exercise and enjoy their
right to shelter and housing, which includes:
i. security of tenure and freedom from forced eviction
ii. the shelter and housing are constructed and maintained to provide for
physical safety of occupants and protection from environmental threats to
health, structural hazards and disease vectors,
iii. the shelter and housing are affordable and do not compromise the ability
of persons with disabilities to secure other basic needs,
iv. persons with disabilities are not required to accept unwanted treatment
or services as part of the housing or shelter program or as a condition
for security of tenure.
d) States Parties shall develop programs to ensure that persons with disabilities
have access to affordable water, including for persons who require additional
quantities of water for personal and domestic needs and for those with difficulties
in physically accessing sanitation and water supply points and facilities.
Draft Article 23bis: Rights to social security
1. States Parties recognize the right of all persons with disabilities to
social security, including social insurance and social assistance, and to
the enjoyment of that right without discrimination on the basis of disability,
and shall take appropriate steps to safeguard and promote the realization
of this right, including measures to:
a) Ensure access by persons with disabilities to necessary services, devices
and other assistance for disability-related needs;
b) Provide assistance to people with disability and their families to meet
the extra costs they each incur because of disability (including adequate
training, counseling, financial assistance, tax exemption, housing adaptation,
transportation and respite care).
c) Ensure that autonomy is preserved in the delivery of social services,
including by prohibiting the bundling of services (making provision of any
service contingent on acceptance of any other service) and that services
always contribute to the full participation of people with disability in
the community.
d) Ensure that persons with disabilities are able to access life and health
insurance without discrimination on the basis of disability in public agencies
and private companies.
2. States Parties shall undertake periodic reviews of their systems of social
security, including employee compensation, to ensure that adequate support
is provided and that no undue obstacles are inadvertently placed in the
way of persons with disabilities in entering employment, retaining their
job or occupation, or returning to the open labor market and paid employment.
LANDMINE SURVIVORS NETWORK
Draft Article 23 – SOCIAL SECURITY
SYNTHESIS OF PROPOSALS
1. States Parties recognise the right of all persons with disabilities to
social security, including social insurance and assistance, and to the enjoyment
of that right without discrimination on the basis of disability, and shall
take appropriate steps to safeguard and promote the realisation of this
right, including measures to:
(a) ensure entitlement and access by persons with disabilities to necessary
support, services, devices and other assistance for disability related needs;
(b) ensure access by persons with disabilities, particularly women and girls
with disabilities, older persons with disabilities, and members of minority
groups with disabilities, to social security programmes and poverty reduction
strategies, and to take into account the needs and perspectives of persons
with disabilities in all such programmes and strategies;
(c) ensure entitlement and access to assistance to persons with disabilities
and their families to meet the extra costs they each incur because of disability,
including adequate training, counselling, financial assistance, taxation
exemptions and respite care; and
(d) ensure that persons with disabilities are able to access life and health
insurance without discrimination on the basis of disability in public and
private institutions.
2. States Parties shall undertake periodic reviews of their systems of social
security, including employee compensation, to ensure that adequate support
is provided and that no undue obstacles are inadvertently placed in the
way of persons with disabilities in entering employment, retaining their
job or occupation, or returning to the open labour market and paid employment.
COMMENTS
Draft Article 23, as drafted by the Working Group, combined rights in relation
to social security with rights in relation to an adequate standard of living.
In keeping with the proposal of some delegations (Argentina, Mexico) and
consistent with the separate articulation of these human rights in the CRC
and the ICESCR, these rights are here covered in two separate articles.
Social security; as a holistic term comprising both social assistance and
social insurance. The concept of social assistance refers to the basic relief
given to those who cannot obtain a living in the open market. The concept
of social insurance refers to systems of social security paid within an
insurance scheme by employees and employers. Such insurance can include
work accidents, temporary unemployment insurance, or old age pensions. Social
insurance applies to those in the work force, but not the unemployed or
self-employed, or those employed in the informal sector. Consequently, social
assistance and social insurance together reflect a comprehensive approach
to social security. They relate to particular types of financial support
schemes and as such have been treated in stand-alone provisions in other
international instruments (and indeed are the subject of an entire ILO Convention).
Further, the Copenhagen Declaration on Social Development includes a commitment
to develop and implement policies to ensure that people with disabilities
have adequate economic and social protection.
Draft Article 23(1): The term “social security” is the most widely used
terminology in human rights law so we prefer the use of this term for consistency.
Draft Article 23(1)(a) addresses access to “services, devices and other
assistance” related to “disability-related needs.” As noted in FN 100 of
the Working Group Draft Text, some elements of this paragraph may be covered
in Draft Article 20 (Personal Mobility - in this text it has become an article
on support services). Consistent with obligations set forth in the CRC relating
to social security (Article 26) as well as the UNSR, Rule 8, it is essential
that Article 23 retain language concerning access so as to ensure that the
take-up of benefits by people with disabilities is barrier-free and that
the process of applying for benefits does not discriminate against any people
with disabilities (e.g., those in remote areas, those with visual impairments).
Draft Article 23(1)(b) makes explicit reference to ensuring the access of
people with disabilities to social security programs and poverty reduction
strategies. It also makes important reference to particularly marginalized
groups of people with disabilities. A number of delegations emphasized the
need to ensure the inclusion of language concerning equitable access of
people with disabilities to poverty elimination strategies (Brazil, Cuba,
Bahrain, New Zealand).
The provision in Draft Article 23(1)(b) also mentions the need to take into
account “the needs and perspectives of persons with disabilities” in such
programs, reflecting, among others, the principle of participation.
Draft Article 23(1)(c) has been reformulated to help avoid defining what
constitutes a severe disability and noting the objection of many delegations
to this language. (Philippines, Brazil, Thailand, Kenya, Israel, Canada,
Palestine) The article now focuses directly on it central objective, namely,
the determination of the costs associated with providing appropriate assistance
to people with disabilities or their families. The language also takes into
account the concerns of some delegations that this provision should not
be overly prescriptive and should take into account the many and varying
social structures across countries. While the article should not be prescriptive
in providing how social security should be delivered, to be meaningful it
must ensure that people with disabilities are able to receive social security
without discrimination, social stigma, or deprivation of any other rights.
Social security should be delivered in accordance with privacy rights and
public information campaigns on benefit entitlements must be accessible
to people with disabilities.
Draft Article 23(1)(c) deletes the language “which should not become a disincentive
to develop themselves” on the grounds that special measures are not a disincentive
to personal development, but rather a precondition to it. Such language
is, in any event, paternalistic and contrary to the guiding principles of
the convention.
Draft Article 23(1)(d) introduces the important concept of non-discrimination
against people with disabilities in the context of obtaining life and health
insurance. Given that non-discrimination is an underlying principle of the
Convention, its specific applicability to this context is essential. Eligibility
terms must be non-discriminatory and non-stigmatizing.
Draft Article 23(2) incorporates a system of review, consistent with the
proposal put forward by the International Labour Organization. (Cf. ILO
Submission, third session of the Ad Hoc Committee, May 2004) The monitoring
of social security serves a two-fold function. First, it ensures the adequacy
of support. Second, it ensures that social security provisions do not constitute
a disincentive to vocational rehabilitation, vocational training or employment
(‘Benefits trap’) for people with disabilities. This is consistent with
the deletion proposed in Article 23(1)(c), because it continues to focus
on the requirement of support, while ensuring that this support does not
prevent access to employment opportunities. (Cf. Submission to the Ad Hoc
Committee of the Australian National Association of Community Legal Centres,
People With Disability Australia, Inc., Australian Federation Disability
Organisations)
Some delegations referenced the need to make clear that this article is
subject to the concept of progressive realization. Should a provision on
progressive realization in relation to certain rights be included in Draft
Article 4 (General Obligations), it need not receive explicit mention in
Draft Article 23.
Draft Article 23bis - ADEQUATE STANDARD OF LIVING
SYNTHESIS OF PROPOSALS
1. States Parties recognise the right of all persons with disabilities to
an adequate standard of living for themselves and their families, including
basic services, adequate food, clothing, housing and access to clean water,
and to the continuous improvement of living conditions, and shall take appropriate
steps to achieve the full realisation of this right.
2. With regard to the right to adequate food, States Parties undertake to
ensure that food is:
(a) available in a quantity and quality sufficient to satisfy the dietary
needs of persons with disabilities; and
(b) both physically and economically accessible.
3. With regard to the right to adequate housing, States Parties undertake:
(a) to engage in no act or practice of discrimination on the grounds of
disability in relation to housing policies and programmes and to take all
appropriate measures to ensure that all public authorities, public institutions
and private entities shall act in conformity with this obligation; and
(b) to guarantee the full participation of persons with disabilities in
the elaboration and implementation of housing-related legislation reflective
of their needs.
4. States Parties shall take all appropriate measures to ensure that persons
with disabilities can freely enjoy and exercise their right to housing and
can participate fully and equally within society. Steps to be taken by the
States Parties should ensure that housing for persons with disabilities:
(a) is accessible;
(b) provides security of tenure and freedom from forced
eviction;
(c) provides for the physical safety of occupants and protection from threats
to health, structural hazards and disease vectors;
(d) is affordable and does not compromise the ability of persons with disabilities
to secure other basic needs;
(e) contains all facilities essential for health, security, comfort and
nutrition; and
(f) is located in appropriate proximity to support services, employment
options, health care services and other social facilities.
5. States Parties shall develop programmes to ensure that persons with disabilities
have access to affordable water, including for persons who require additional
quantities of water for personal and domestic needs and for those with difficulties
in physically accessing sanitation and water supply points and facilities.
6. States Parties shall ensure equitable access by persons with disabilities
to government regional development programmes and poverty elimination strategies,
including international aid programmes.
COMMENTS
Draft Article 23bis (formerly covered in Working Group Draft Text Article
23(2)) incorporates the well-established international human rights to an
adequate standard of living and, importantly, applies that right to the
situation of people with disabilities. (Cf. UDHR, Article 25; ICESCR, Article
22(1); CRC, Article 27) Reporting guidelines associated with State reporting
on progress in relation to this right ask States to report on whether the
standard of living of all social groups has improved over time and to report
on the situation of the poorest sectors of society. Given that more than
80% of the world’s population of people with disabilities live in the developing
world and that they are typically among the poorest of the poor, the specific
application of this right to the situation of people with disabilities in
this Convention is essential. The mere abundance of food, housing, water
or clothing does not automatically mean that people with disabilities will
enjoy these internationally recognized rights. Such essentials must be affordable
and physically accessible, and people with disabilities are often doubly
disadvantaged. (Cf. Centre for Housing Rights and Evictions Submission to
the third session of the Ad Hoc Committee, May 2004)
Draft Article 23bis(2): The Committee on Economic, Social and Cultural Rights
detailed the normative content of the right to food, while noting it is
a progressive right. The Committee stated that the core content of the right
implies a) “[t]he availability of food in a quantity and quality sufficient
to satisfy the dietary needs of individuals, free from adverse substances,
and acceptable within a given culture” and, in addition, b) “[t]he accessibility
of such food in ways that are sustainable and that do not interfere with
the enjoyment of other human rights.” (General Comment No. 12 on the Right
to Adequate Food, Para. 8). The Committee has specifically identified people
with disabilities as a group whose access to food often denied.
Draft Article 23bis(3) and (4): The Committee on Economic, Social and Cultural
Rights has identified certain aspects of the right to housing that must
be taken into account to determine whether particular forms of shelter constitute
“adequate housing” under the ICESCR. (Cf. General Comment No. 4 on the Right
to Adequate Housing) These elements include: availability of services, material,
facilities and infrastructure, affordability, accessibility and habitability.
All of these components are highly relevant in terms of the barriers that
people with disabilities face in fully enjoying their right to housing.
In addition, discrimination, particularly in the housing field, often remains
a major problem for people with disabilities. In that respect, the Committee
on Economic, Social and Cultural Rights has recognized that the effects
of disability-based discrimination have been particularly severe in the
field of housing. Indeed, people with disabilities often face multiple layers
of discrimination based on grounds such as sex, gender, race ethnicity and/or
age.
The formulation provided in 23bis(3) and (4) avoids being too prescriptive,
but ensures protection both in the public and private housing sectors. (Cf.
Centre for Housing Rights and Evictions Submission to the third session
of the Ad Hoc Committee, May 2004)
Draft Article 23bis(5): The Committee on Economic, Social and Cultural Rights
has indicated that “the human right to water is indispensable for leading
a life in human dignity. It is a prerequisite for the realization of other
human rights.” (Cf. Committee on Economic, Social and Cultural Rights, General
Comment 15, 2002, para. 1) As highlighted by the Committee, people with
disabilities often face difficulties with physical access to water, raising
issues of availability, affordability and accessibility with regard to the
enjoyment of the right to water. In this regard, the Committee has emphasized
the need to protect against discrimination against people with disabilities
with regard to the enjoyment of this right. (Cf. Committee on Economic,
Social and Cultural Rights, General Comment 15, 2002, paras. 13, 16(h))
Accordingly, this Convention should take into account the current interpretation
of the right under international human rights law and include a reference
to “water.”
Draft Article 23bis(6): A provision on poverty reduction is appropriate
in the context of an adequate standard of living. The Committee on Economic,
Social and Cultural Rights has stated that the right to an adequate standard
of living has a “direct and immediate bearing upon the eradication of poverty.”
(Poverty and the International Covenant on Economic, Social and Cultural
Rights: statement adopted 4 May 2001 by the Committee on Economic, Social
and Cultural Rights (E/C.12/2001/10), para. 1) The proposed text recognizes
that link and acknowledges that people with disabilities are often among
the poorest sectors of society and must have equitable access to poverty
alleviation programs.