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| Back to: Third Session | Draft Article 23 Comments
on the draft text Download complete compilation of comments: MS Word
National Human Rights Institutions Ontario Human Rights Commission Footnote 104 The Commission agrees with this suggestion. Under Ontario’s Human Rights Code, persons with disabilities have the right to be free from discrimination in housing accommodation including privately provided housing. Under the Code, landlords also have a duty to accommodate the needs of occupants with disabilities, short of undue hardship. (f); Footnote 106 In Canada, the provision of insurance is typically the domain of the private sector. Ontario’s Human Rights Code provides for the right to be free from discrimination in insurance (including the private sector) on the basis of disability and other grounds. At the same time, the Code permits certain exceptions and defences, for example, where a contract of insurance makes a distinction, exclusion or preference on reasonable and bona fide grounds because of disability among other grounds. The Supreme Court of Canada in Zurich1 qualified this defence in finding that the insurance industry must demonstrate that its reliance on enumerated grounds of discrimination are rational in that there currently is no alternative to viably assess risk. The Court also stated that the industry must strive to move away from relying on enumerated grounds by attempting to develop viable alternatives. In another case involving insurance, the Supreme Court of Canada recognized the distinct disadvantage and negative stereotyping faced by persons with mental disabilities, and held that discrimination against individuals with mental disabilities is unlawful. In Gibbs v Battlefords,2 the Court struck down an insurance plan for employees with disabilities that limited benefits for mental disabilities to a lower level as compared to physical disabilities. A more detailed analysis can be found in the Commission’s discussion paper and report on Human Rights Issues in Insurance. 2. The Commission is supportive of this provision. The Commission recognizes that poverty is inextricably linked with inequality, particularly for persons with disabilities as well as single mothers, the elderly and racial minorities among others. The Commission also recognizes that human rights institutions are challenged in their ability to deal with the issue of adequate standard of living. For a full discussion, see the Commission’s research paper, Human Rights Commissions and Economic and Social Rights. The paper explores the concept of "social condition" as a prohibited ground of discrimination as one potential way that social and economic rights may be protected. Centre on Housing Rights and Evictions Article 23 of the current Draft International Convention recognises the right of persons with disabilities to ‘an adequate standard of living, including food, housing, clothing and water’. As such article 23 remains the main reference, in the current draft, to housing as a component of the right to an adequate standard of living. Other parts of the Draft Convention also bear relevance to the issue of housing, including the provisions on non-discrimination (draft articles 2, 4.1, 7) participation (draft articles 4.2 and 19.2), the fight against stereotypes (draft article 5) and accessibility to services (draft article 19). These elements constitute fundamental prerequisites for the full enjoyment of the right to adequate housing and the right to water by disabled persons. In addition to these fundamental elements, the following aspects of the rights to adequate housing must be taken into account to guarantee that particular forms of shelter constitute “adequate housing” for disabled persons: availability of services, material, facilities and infrastructure; affordability; accessibility and habitability. As it stands, the current draft, and in particular article 23, fails to take into account these elements. It should therefore be completed with subsequent sub-paragraphs, reflecting the needs of disabled people, notably in the field of housing and water and the concurrent steps that State Parties should take in that respect. Proposed amendments to draft article 23 (underlined in the text) “State Parties recognise 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. As such, State Parties will undertake to take appropriate steps to safeguard and promote the realisation of these rights. (a) With regard to the right to adequate housing, State Parties undertake 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. In that respect, State Parties shall give particular attention to those persons who face discrimination not only due to their physical or mental disability, but also due to their sex, gender, race, ethnicity and/or age. (b) State Parties undertake to guarantee the full participation of disabled persons in the elaboration and implementation of housing policies and programmes and to ensure that the development and implementation of housing related legislation reflect their needs. (c) State 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 State Parties should ensure that housing for persons with
disabilities: (d) State Parties shall develop special 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. EDF considers that paragraph c) should cover all disabled people who are faced with extra costs linked to their disability. At the same time, EDF supports a specific reference, as foreseen in the current draft, to persons with severe and multiple disabilities as a group for which this right is particularly relevant. EDF proposes to rephrase subparagraph 1e) which in its current wording reminds of old times when disability was approached from a charitable point of view. EDF proposes therefore to indicate that tax benefits or exemptions will be used as one of the ways to compensate disabled people from their disability-related expenses. The overall objective to ensure is that disabled people obtain their equal share in the economic development of their country. A specific reference to the obligation to include persons with disabilities in the national poverty reduction strategies should also be added. The article might be split up into two articles, one dealing with social security and another dealing with adequate standard of living. Indian NGO Consultative Meeting Endorse footnote 100 vehemently { i.e. Some members of the Working Group considered that this provision should be strengthened to mention explicitly technical aids to mobility, transfer, auditory or visual perception and other special devices that persons with disabilities require. The Ad Hoc Committee may wish to consider whether this issue is adequately covered in draft Article 20 on Personal Mobility.} It was recommended that the issues related to intellectual property vis-à-vis accessing materials in appropriate formats might be separately and elaborately dealt with. Draft Article 23 seeks to combine coverage of two issues traditionally addressed in separate articles. (Cf. International Covenant on Economic, Social and Cultural Rights, Articles 9 and 11). In order to adequately elaborate the issues relevant to these two rights, the Ad Hoc Committee may wish to consider splitting Draft Article 23. With regard to the right to social security (as well as the acceptance of the use of that term), the Ad Hoc Committee may find ILO Convention (157) on Maintenance of Social Security Rights, as well as Rule 8 of the UN Standard Rules, of some assistance. Draft Article 23(1)(a) addresses access to “services, devices and other assistance” related to “disability-related needs.” As noted in Footnote 100, some elements of this paragraph may be covered in Draft Article 20 (Personal Mobility). While the purpose of the provision is to detail how States should proceed in achieving the right of people with disabilities to social security, as drafted, this paragraph seems to vague to be useful. The Ad Hoc Committee will want to explore with greater depth the necessary components for realization of this right. Draft Article 23(1)(b) makes explicit reference to ensuring access of persons with disabilities to social security programs and poverty reduction strategies. It makes important reference to particularly marginalized groups of disabled persons. The provision also significantly mentions the need to take into account “the needs and perspectives of persons with disabilities” in such programs. It could be strengthened by explicitly referencing the participation of people with disabilities in all stages of programming. Draft Article 23(1)(c) provides important reference to particularly disadvantaged sectors of the disability community. Nonetheless, the Ad Hoc Committee will need to consider the precise objectives of the provisions in light of its drafting. Draft Article 23(1)(d) provides important mention of access to governmental housing programs and provides a specific example of how such access might be achieved, namely, through an earmarking system. The Ad Hoc Committee may wish to consider how access to housing relates to paragraph (2) of Draft Article 23 concerning adequate standard of living. In addition, the Ad Hoc Committee may wish to consider whether the explicit mention of earmarking is appropriate given that this is the only example listed but is by no means the only way of achieving the purpose of the provision. Draft Article 23(1)(e) addresses access to tax exemptions and tax benefits for people with disabilities in respect of their income. The provision as drafted has a level of specificity that may not take into account differences in tax systems (notably in relation to income taxation) and may indeed be unrealistic. Draft Article 23(1)(f) introduces the important concept of non-discrimination against persons with disabilities in the context of obtaining life and health insurance. Note that Footnote 75 of the Draft Text likewise references disability discrimination in this context. The right to an adequate standard of living is well-established in international human rights law. (Cf. Universal Declaration of Human Rights, Article 25; International Covenant on Civil and Political Rights, Article 11(1); and Convention on the Rights of the Child, Article 27) Footnote 107 discusses the appropriateness of the inclusion of a reference to “clean water” in paragraph (2). The Committee on Economic, Social and Cultural Rights has indicated “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) Furthermore, the Committee has highlighted the particular relevance of this right to people with disabilities, as well as 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)) It would therefore seem appropriate for the Ad Hoc Committee to retain the reference to “clean water” in paragraph (2). Physical Disability Council of Australia Ltd People with disabilities experience:
PDCA strongly recommends that the Draft Article be amended to include
a provision that states people with disability are entitled to access
a basic level of social security to achieve an adequate standard of
living. Article 23 should be divided into 2 articles: If the word severe disabilities should be used, it needs a definition and should be referred to Article 3, Definitions. In para 1 (e), it is very strange to mention tax exemptions and tax benefits. This is not a human rights issue. State Parties should take legislative measures, so as PWD are not discriminated against on ground of disability when signing any kind of contracts with Insurance Companies. Para 2, it is of great importance that food, clothing, housing and access to clean water, are recognised as a specific right. Access to water is in particular essential for Women with disabilities, who can have difficulties to get access to water due to their disability. PWD should have the same right and access to the same relative growth that is given other citizens within the country. World Network of Users and Survivors of Psychiatry 1. (c) ADD: g) 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). The additional paragraph is necessary to give effect to autonomy in decision-making, promote living independently, and protect against unwanted or forced interventions. The deletion in paragraph (c) is suggested so as not to differentiate between people according to the extent of disability, which could be used in unpredictable ways. Footnotes Footnote 1: Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R. D/255 (S.C.C.) Footnote 2: Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.) |