Implementation of the Right of Disabled People to Independent Living

Implementation of the Right of Disabled People to Independent Living - Human Rights Joint Committee Contents

2 Independent living as a human right

What is independent living?

8. The Government, adopting wording originally proposed in 2002 by the Disability Rights Commission, have defined independent living as "all disabled people having the same choice, control and freedom as any other citizen—at home, at work, and as members of the community. This does not necessarily mean disabled people 'doing everything for themselves', but it does mean that any practical assistance people need should be based on their own choices and aspirations"[11].

A personal account of independent living

John Evans gave a personal account of the meaning of independent living in evidence to us:

"What does independent living mean to me? I think that is a very deep, life
changing question and it means a lot of things. I suppose I could say it has
changed my life and I know it has changed the lives of many other disabled
people whom I have come into contact with [...] It is very hard I think to get that message across to people who perhaps are not dependent on others to support them in their day-to-day living. But it has provided me with a life, my work-I have worked widely-and the opportunities and the choices to do the things I want, like you do. I think with the restrictions somebody like myself has, with the kind of severe impairment I have, it is freedom. It is the freedom for me to be able to do what I want to do, when I want to do it, in a way, because I have people around me who can support me to do that."[12]

9. Independent living is as relevant to people living in residential care as it is to someone living in their own home, and as relevant to people with significant cognitive impairments as to a university graduate. In its inquiry on the rights of adults with learning disabilities, our predecessor Committee supported independent living as a basis for Government policy, explaining that, as a concept, it was important that independent living did not mean leaving people without support:

"When we refer to independent living, we refer to the Disability Rights Commission interpretation, which promotes choice and autonomy for people with disabilities in their daily lives. This may mean different things for different people. It should not be confused with situations where people with learning disabilities have been moved to supported living in the community without adequate support. One of the first things that we learned in this inquiry was that a 'one size fits all approach' was not appropriate.

We consider that the principles of independent living and promoting the participation of disabled people in community life are core themes of the UN Disability Rights Convention. It has a clear basis in other human rights standards and principles, such as freedom, equality and autonomy."[13]

10. Independent living, in short, is freedom for disabled people. Individual freedom has long been cherished by our common law tradition. The Disabilities Convention simply recognises that for some people positive steps have to be taken in order to secure that freedom.

Relevant provisions of the Disabilities Convention

11. The UNCRPD's stated purpose is to "promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity."[14] It reaffirms the existing human rights of disabled people and sets out the practical action that is required to remove barriers and put in place the support to make the human rights of persons with disabilities an everyday reality. The key articles for understanding the right to independent living as enshrined by the Convention are Articles 3, 4 and 19. The effect of these three crucial provisions is summarised below. Their full text is included in the Annex.

12. Article 3 of the Convention sets out a number of general principles which are intended to guide States in their interpretation of the subsequent provisions of the treaty. These include:

Respect for the inherent dignity, individual autonomy (including the freedom to make one's own choices), and independence of persons;
Non-discrimination;
Full and effective participation and inclusion in society;
Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.

13. Article 4 of the Convention sets out the range of obligations which are assumed by States which choose to ratify the Disabilities Convention[15]. The general obligations set out in Article 4 are extensive. Significantly, they explicitly recognise that States are under an obligation to take positive actions in order to comply with the Convention. The obligations recognised in Article 4 include (most relevantly for the purposes of our inquiry) the following:

To ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability;[16]
To adopt all appropriate legislative, administrative and other measures for the implementation of the rights in the Convention;[17]
To take all appropriate measures (including legislation) to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;[18]
To take into account the protection and promotion of human rights of persons with disabilities in all policies and programmes;[19]
To ensure that public authorities and institutions act in conformity with the Convention;[20]
To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise;[21]
To take measures to the maximum of its available resources with a view to achieving progressively the full realisation of the economic, social and cultural rights in the Convention;[22]
To consult closely with and actively involve persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities.[23]

14. Article 19 of the Convention is a key provision: it deals with living independently and being included in the community and is of such importance to this inquiry that we set it out in full:

"States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) 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;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs."

15. Article 19 has been interpreted as a logical extension of the right to equal recognition before the law in Article 12 of the Convention, in the sense that recognition of legal capacity restores the "power of persons with disabilities to decide about their own lives, while the right to independent living paves the way for persons with disabilities to choose how to live their lives."[24] Article 19 can be seen as what lawyers call a "lex specialis", that is, a more specific or concrete expression of a general underlying norm when that norm is given effect in a particular context. It gives more specific meaning to the general rights to liberty and security of person and to private and family life in the particular context of disabled people and their living arrangements. Of particular importance is the elimination of living arrangements that segregate and isolate people with disabilities (e.g. institutionalisation), unless that choice is made by the disabled person. Article 19 thus requires States Parties to ensure that people with disabilities are able to live in the community with accommodation options equal to others, and that these options support the inclusion and participation of people with disabilities in the life of the community. Article 19 requires that States ensure that disabled people have the opportunity to choose with whom they live on an equal basis with others.

16. In order to realise these freedoms, States Parties are obliged to ensure that disabled people have access to a range of support services that they may require in order to live freely in the community, and to avoid isolation and segregation from the community. The Convention also requires that steps are taken to ensure that mainstream community services and facilities must be available to disabled people on an equal basis with others and responsive to their needs.

The legal status of the relevant standards in the Disabilities Convention

17. In the course of our inquiry it became apparent that Government ministers were under an unfortunate misapprehension as to the legal status of the Disabilities Convention. In oral evidence to us the Minister for Disabled People expressed her view that the Convention was 'soft law': "Is it hard law or soft law? [...] the UN Convention is soft law—if one uses those terms—because it is a Convention that does not have legal standing, but it is very much a Convention which every Department is signed up to [...] it does drive at the heart of our approach although technically [...] it is a soft law approach."[25]

18. "Soft law" is the term generally used to describe standards which do not have the status of being legally binding on the State in international law, such as declarations, minimum principles and similar internationally agreed documents. Treaties, however, are legally binding on the state in international law. A violation of a treaty obligation is an internationally wrongful act which has serious consequences for the State in international law. Obligations contained in treaties are always "hard law".

19. The UK Independent Mechanisms[26], in supplementary evidence, gave the following assessment of the legal status of the Convention: "As a matter of international law the CRPD, in its totality, is binding international law—i.e. "hard" law. It is an international treaty which has been entered into by State Parties and is subject to the law of treaties and the principle of pacta sunt servanda. That is the principle, codified in the Vienna Convention on the Law of Treaties, that States enter into international agreements and implement those obligations in good faith. The CRPD was ratified by the UK Parliament on 8 June 2009. Since that date the UK has had "hard" international law obligations under Article 19 of the CRPD."[27] This analysis is clearly correct.

20. In addition to its status as an international treaty which is legally binding on the UK, the Convention also has a degree of more direct legal effect in the UK's legal system, through the Human Rights Act 1998 and the European Communities Act 1972. The European Court of Human Rights has begun to take note of the Convention in the context of its interpretation of the European Convention on Human Rights.[28] The UK Courts are required by the Human Rights Act 1998 to take account of ECtHR jurisprudence and the Government is bound by its judgments in cases against the UK. The Convention also has a particular status in EU law. The EU, as a "regional integration organisation" has ratified the UNCRPD requiring it to interpret EU law and regulation compatibly with the Convention, providing the basis for consistent interpretation of EC (now EU) secondary law including Regulations, Directives, Decisions, Recommendations or Opinions.

21. What the Minister may have had in mind when describing the Disabilities Convention as "soft law" is that fact that it has not been incorporated into UK law and is therefore not directly justiciable in UK courts: that is to say, an individual cannot go to a UK court to complain about a breach of any of the rights in the Convention. Implementation of the UN human rights treaties is generally supervised by the "treaty bodies", which are independent expert committees established under each of the treaties, through a system of periodic State reports and, under some of the treaties, petitions from individuals. The UNCRPD requires its parties to report periodically to explain the extent of State compliance. The responsible treaty body will then examine the report, together with submissions of NGOs and others, and will issue Concluding Observations highlighting positive and the negative aspects of the State's level of compliance, and will make recommendations for appropriate changes to law or practice accordingly. These conclusions and recommendations are not strictly speaking legally binding, but provide an authoritative interpretation of the individual treaty obligations which are legally binding. All of this is correct but it does not make the treaty "soft law".

22. The Minister may also have had in mind that the nature of some of the obligations imposed by the Convention are of a different kind from those imposed by treaties such as the European Convention on Human Rights, in that some of them are subject to the principle of progressive realisation. The precise nature of the legal obligations imposed by the Disabilities Convention, and by Article 19 of that Convention in particular, is considered in detail below. It is true that the nature of some of the legal obligations imposed by the Disabilities Convention is different from those imposed by other international human rights treaties such as the ECHR. But this difference in the nature of the legal obligations does not reduce the status of those obligations to "soft law".

23. We are concerned that characterising the obligations assumed by the Government under the Disabilities Convention as "soft law" is indicative of an approach to the treaty which regards the rights it protects as being of less normative force than those contained in other human rights instruments. The UNCRPD is hard law, not soft law. The Government should fulfil their obligations under the Convention on that basis, and must counter the public perception that it is soft law.

The nature of the legal obligations under the Disabilities Convention

OBLIGATIONS TO RESPECT, PROTECT AND FULFIL

24. Like all international human rights treaties, the Disabilities Convention imposes three distinct types of legal obligation on States: obligations to respect, protect and fulfil the rights contained in the Convention.

25. The obligation to respect means that States must not interfere with the enjoyment of the rights of people with disabilities. For example, they must respect their right to education by not excluding them from school on the basis of their disability and must respect their right to health by not carrying out medical experiments on them without their free and informed consent.

26. The obligation to protect means that States must take positive steps to protect the rights of disabled people against violation by third parties, including private individuals and organisations. For example, the State must protect people with disabilities against inhuman and degrading treatment by privately run prisons or care homes, and must protect their right to work by ensuring that private businesses cannot discriminate against employees on grounds of their disability.

27. The obligation to fulfil means that States must take appropriate actions (including legislative, executive, administrative, budgetary, and judicial actions) towards the full realisation of the rights in the Convention. For example, the State must fulfil the right not to be abused or mistreated by taking positive steps to ensure that adequate training and information are provided to health professionals, police and prison officers, and must fulfil the right of disabled people to take part in the life of their community by taking steps to enhance accessibility.

OBLIGATIONS OF "PROGRESSIVE REALISATION" AND "NON-RETROGRESSION"

28. As we pointed out in our recent Report on the Welfare Reform Bill, where international human rights treaties protect social, economic and cultural rights, the State is under a particular type of legal obligation: it must take deliberate, concrete and targeted steps towards the realisation of those rights "to the maximum extent of their available resources."

29. The availability of resources is therefore of central relevance in assessing the degree to which the UK is meeting its obligations under such human rights treaties. However, the duty of progressive realisation entails a strong presumption against retrogressive measures. In its General Comment on the scope of the UN Committee on Economic Social and Cultural Rights (ICESCR) right to an adequate standard of living and to social security, the ICESCR explained:

"There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level."[29]

30. So, while the principle of progressive realisation within available resources affords States a degree of flexibility in achieving the objectives of the Convention, it does not absolve States of the responsibility to take active steps to protect and fulfil those rights. "Retrogressive" measures, that is, measures which represent a backwards step in terms of the realisation of the rights concerned, require strict justification and even then are not permissible if they are incompatible with the "core obligations". Although States are free to secure their minimum obligations through a variety of means, those obligations have a "minimum core", and any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted.[30]

31. In its recent General Comment on the scope of the right to social security in the International Covenant on Economic, Social and Cultural Rights, for example, the UN Committee on Economic and Social Rights explained:

"The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights."[31]

"To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women"[32]

"Violations include, for example, the adoption of deliberately retrogressive measures incompatible with the core obligations […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; [...] active denial of the rights of women or particular individuals or groups. Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone's right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security [...]"[33]

32. Similarly, in its General Comment regarding the right to housing, the UN Committee asserted that "a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant".[34]

33. The UN Committee has also emphasised the particular responsibility on states to ensure that the most vulnerable do not bear a disproportionate burden at times of public spending cuts:

"The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints [...] Similarly, the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes."[35]

THE LEGAL OBLIGATIONS IN ARTICLE 19 OF THE DISABILITIES CONVENTION

34. As we indicated above, the Disabilities Convention does not recognise any new human rights for people with disabilities, but is intended to complement existing international human rights treaties by spelling out in more detail States' obligations to respect, protect and fulfil the human rights of people with disabilities. It is intended to assist States by clarifying the steps that States need to take in order to ensure that disabled people enjoy their human rights to the same extent as other people. Like the UN Convention on the Rights of the Child, the Disabilities Convention therefore draws on all of the existing international human rights treaties, and includes a mixture of civil, political, social, economic and cultural rights.

35. The right to live independently and be included in the community in Article 19 of the Disabilities Convention embodies this synthesis of civil and political, economic, social and cultural rights. Article 19 (a) in particular concerns self-determination, a recognisably civil and political right. Yet its realisation is strongly dependent upon the availability of options, as envisaged by Article 19 (b) which confers economic, social and cultural rights, and upon access to mainstream community services and facilities as envisaged by Article 19 (c). Ensuring equal access to and responsiveness of community services and facilities in turn depends upon measures to combat disability discrimination, including reasonable adjustments in the context of goods, facilities and services.

36. A rigorous analysis of Article 19 is important because, as we explained above, different types of rights impose different legal obligations. Compliance with the obligations imposed by Article 19 will therefore require the State to take a variety of different actions and measures.

Article 19 (a) implies rights to self-determination in relation to matters affecting where and with whom a disabled person lives and the means by which disabled people are involved in decisions affecting them. This suggests a need for legal and/or administrative mechanisms which protect and promote choice and control regarding where and with whom disabled people live.
Article 19 (b) appears to recognise social and economic rights of disabled people and as such obliges a contracting State to "take measures to the maximum of its available resources with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law".[36]
Article 19 (c) is more in the nature of a civil and political right to non-discrimination in relation to accessing goods and services, including the duty to make reasonable accommodations, legislative measures for which are required with immediate effect, but which in practice (such as in relation to making premises accessible) may take time to be realised in practice.

37. The precise nature of these legal obligations must always be borne in mind when considering the extent to which the UK has implemented the right to independent living and when making recommendations about the sorts of action which the State should be taking in order to fulfil its treaty obligations in that respect.

11 See for instance the 2009 Independent Living Strategy, Improving the Life Chances of Disabled People, Prime Minister's Strategy Unit, 2005, and Policy Statement on Social Care and Independent Living, Disability Rights Commission, 2002. Back

12 Q 78 Back

13 See Seventh Report of 2007-08, paras 72-73 Back

14 Article 1 Back

15 In a recent statement, the Children's Commissioner has expressed concerns about the impact of the Welfare Reform Bill on children, citing Article 4 of the UN Convention on the Rights of the Child, which imposes similar obligations. Back

16 Article 4(1). Back

17 Article 4(1)(a). Back

18 Article 4(1)(b). Back

19 Article 4(1)(c ). Back

20 Article 4(1)(d). Back

21 Article 4(1)(e). Back

22 Article 4(2). Back