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DISABILITY RIGHTS

LEGAL FRAMEWORK

International treaties

The People's Republic of China has extended the UN Convention on the Rights of Persons with Disabilities (CRPD) to Hong Kong since August 2008. Hong Kong is also a party to other human rights treaties which touch upon the rights of disabled persons, namely the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).

Convention on the Rights of Persons with Disabilities (CRPD)

The purpose of the convention 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. (Article 1)

This Convention is both a development and a human rights instrument, a policy instrument which is cross-disability and cross-sectoral and it is legally binding.

The Convention does not explicitly define what a disability is. The Preamble states that:

‘Disability is an evolving concept, and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders full and effective participation in society on an equal basis with others’

Also, article 1 of the Convention states:

‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.

In addition, “[d]iscrimination on the basis of disability”, under the Convention, means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. (Article 2)

The Convention is based on the following principles:

Respect for 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
Equality of opportunity
Accessibility
Equality between men and women
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities

To read more about the Convention, please click here.

International Covenant on Civil and Political Rights (ICCPR)

ICCPR is universal and expressed to apply to all human beings. The four categories of civil and political rights in ICCPR, i.e. (a) rights that refer to human existence, (b) liberty rights, (c) associational rights and (d) political rights are all of relevance to persons with disabilities and indeed are frequently violated in the case of persons with disabilities.

a) Rights that refer to human existence

The two important rights under this category are the right to life (Article 6) and the freedom from torture and other cruel, inhuman or degrading treatment or punishment (Article 7). In particular, Article 7 prohibits medical or scientific experimentation without free consent. These are all relevant to people with disabilities, as they are often affected by withholding of life-saving treatment, “warehoused” in institutions, and targeted for medical or scientific experimentation.

b) Liberty rights

The right to liberty and security of person (Article 9) is relevant in the context of civil commitment or criminal detention of the mentally ill. Further, Articles 10 stipulates that persons deprived of liberty, whether in civil commitment or criminal cases, “shall be treated with humanity and with respect for the inherent dignity of the human person”. Articles 14 and 15 in particular addresses important rights in the context of criminal proceedings, including the right to fair trial.

c) Associational rights

The following rights under ICCPR recognize and protect the need for humans to cooperate, to live in a community with others and to live as members of a social group: Freedom of association (Article 22), family rights (Article 23), the right to be protected as a child (Article 24) and the right to respect of privacy, family, home and correspondence, and protection of honor and reputation (Article 17). Note however that the right to privacy might be difficult to protect given that persons with disabilities often have to accept the involvement of others in their private lives, such as doctors, therapists, personal assistants. Family rights are also often violated, e.g. regarding the right to marry, compulsory sterilization practices. The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the General Assembly in 1993 may be used as a source of interpretative guidance on Article 23 in the context of disability.

d) Political rights

The political rights under ICCPR that are relevant to persons with disabilities include: freedom of thought (article 18) and freedom of opinion (article 19), the right of peaceful assembly (article 21), the right to take part in the conduct of public affairs (article 25) and equality rights (articles 2, 3 and 26).

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR does not refer explicitly to persons with disabilities, but since it is applicable to all human beings it is clearly applicable to persons with disabilities as well. It is well recognized that disability is closely linked to economic and social factors and in poor countries or even those with relatively high standard of living, persons with disabilities are very often denied access to basic needs such as food, water, shelter, health protection.

The general legal obligations placed on States parties by ICESCR, when compared with those in CRPD and ICCPR, are not couched in absolute terms. Instead they are dependent on states’ “available resources” and must aim to achieve “progressively the full realization of the rights” in ICESCR (Article 2(1)). The appropriate measures must however be taken “without discrimination of any kind” (Article 2(2)).

In terms of specific rights guaranteed, ICESCR is divided into four major sections. The first deals with the overarching right to non-discrimination (Articles 2 and 3). The second deals with the rights that facilitate participation, including the right to education (Articles 13-14) and right to health (article 12). The third deals with the rights to participate in the workplace, including the right to work (Article 6), right to just and favourable conditions of work (Article 7) and the right to form and join trade unions (Article 8). The fourth deals with other ICESCR rights such as right to social security (Article 9), right to protection of family, mothers and children (Article 10), and right to an adequate standard of living (Article 11), and to take part in cultural life (Article 15).

You can read the full text of ICESCR here.

United Nations Convention on the Rights of the Child (UNCRC) and Committee on the Rights of the Child

The Convention on the Rights of the Child (CRC) is the only UN convention other than CRPD that addresses disabled children directly. Articles 23 and 29 of CRC detail the obligations of States parties in ensuring mentally or physically disabled children enjoy a “full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community” (Article 23(1)). Article 29 deals in particular with education, and states that education of children shall be directed to the following:

(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

Read the full text here.

UN Charter and Human Rights Council

The Human Rights Council, established in 2006, is an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them. It has the ability to appoint independent special rapporteurs and working groups that focus on particular human rights issues or the human rights situation in particular countries. It discuss all thematic human rights issues and situations that require its attention throughout the year.

The Human Rights Council meets at the UN Office at Geneva. It is to meet for no fewer than three sessions per year, for a total of no less than ten weeks as instructed under a General Assembly resolution. It may also convene meetings on short notice to deal with emergency situations of human rights violations. It is a subsidiary organ of the General Assembly of the United Nations, and reports directly to the General Assembly.

In an effort to render the Human Rights Council more accessible to persons with disabilities and to allow them to participate in the work of the Council on an equal basis with others, three sessions of debate and discussion at the 2015 Human Rights Council meeting (HRC28) were made accessible to persons with disabilities. During the three sessions, international sign interpretation and real time captioning will be provided and webcasted. Braille printing were available on demand. The meeting room facilities were also made wheelchair friendly.

The following are Thematic Studies issued by or pending at the Human Rights Council relating to persons with disabilities:

Thematic Study on enhancing awareness and understanding of CRPD (26 January 2009; pdf)
Thematic Study on participation in political and public life by persons with disabilities (20 March 2012; pdf)
Thematic Study on Violence against women and girls (30 March 2012; pdf)
Pending Thematic Study on work and employment of persons with disabilities (link)
Pending Thematic Study on rights of persons with disabilities to education (link)

You can read more about the thematic studies carried out by the Human Rights Council concerning the areas of inclusive education, legal capacity and supported employment.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

CEDAW entered into force in 1981. The Optional Protocol, providing for the consideration of individual complaints and conduct of inquiries entered into force in December 2000.

The overall aim of CEDAW is to achieve de facto equality for women with men through identifying and eliminating causes of discrimination. The first six articles create general obligations on States Parties, for example to end discrimination against women (article 2), to guarantee full enjoyment of all human rights for women on the basis of equality with men (article 3), to give permission to introduce temporary special measures on behalf of women (article 4), to tackle stereotypes and prejudice and to bring about a proper understanding of maternity (article 5), and to suppress egregious abuses such as trafficking in women and the exploitation of prostitution (article 6). The remaining articles deal with specific circumstances of discrimination against women, for example with respect to women’s education (article 10), employment (article 11) and health care (article 12), the participation of women in public and political life (article 7) and their participation at the international level (article 8). Article 13 requires States parties to eradicate discrimination against women in other areas of economic and social life. Article 14 focuses on rural women.

Since CEDAW applies to all women and girls in general, its provisions are also applicable to persons with disabilities. This is confirmed in both the General Recommendations 18 and 24 of the Committee on Elimination of Discrimination against Women. General Recommendations are similar to the General Comments issued by other UN committees and they aim to provide an authoritative (albeit non-binding) interpretation on specific provisions in CEDAW. General Recommendations 18 requires the implementation of special measures to ensure that women with disabilities have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life. General Recommendations 24 urges special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups such as … women with physical or mental disabilities.

To learn more about the international and regional frameworks of protection of disability rights, please click here to visit our Disability Rights Resource Network.

INTERNATIONAL TREATIES

Domestic legislation

Disability Discrimination Ordinance (Cap 487) (DDO)

The Disability Discrimination Ordinance (Cap 487) (DDO) is the key piece of legislation on disability rights. It outlaws direct and indirect discrimination, harassment, and vilification on the ground of disability. With some exceptions, the DDO applies to both private and public sectors. The Equal Opportunities Commission (EOC), an independent statutory body, is established to implement the anti-discrimination ordinances.

Please click here to read the Disability Discrimination Ordinance (Cap 487).

Mental Health Ordinance (Cap 136) (MHO)

The Mental Health Ordinance (Cap 136) (MHO) contains important provisions on persons with mental impairment(s). First, the court has the power to decide whether a person is mentally incapacitated. The property and affairs of a mentally incapacitated person are subjected to orders by the court. Such persons are also disqualified from voting or standing for elections (see e.g. s 53 Legislative Council Ordinance (Cap 542).

Please click here to read the Mental Health Ordinance (Cap 136).

Minimum Wage Ordinance (Cap 608)

The Minimum Wage Ordinance (Cap 608) establishes a statutory minimum wage for all employees. However, employees with disabilities may opt for an assessment of productivity. The minimum wage can be exempted if the assessment shows the degree of productivity is less than 100%.

Please click here to read the Minimum Wage Ordinance.

Article 25 of the Hong Kong Basic Law

"All Hong Kong residents shall be equal before the law."

Article 22 of the Hong Kong Bill of Rights (the latter corresponds to Article 26 of the ICCPR)

"Equality before and equal protection of law."

DOMESTIC LEGISLATION

HONG KONG CASES

Since its 1996 creation, the EOC has provided legal assistance in bringing 55 legal actions under the DDO. A selection of major cases decided under the DDO is listed below.

K & Ors v Secretary for Justice (DCEO 3, 4 and 7/1999) District Court

The government’s policy of rejecting job applicants with a close relative that had a history of mental illness was found to be discriminatory. The court held that the government had a duty to conduct an individual assessment to determine whether an applicant poses a real risk to safety.

M v Secretary for Justice (CACV 265/2007) Court of Appeal

Following the High Court of Australia case of Purvis, the Court of Appeal held there were two steps in establishing direct discrimination. First, it must be shown that the complainant was treated less favourably compared to a person behaving in the same manner without the relevant disability. Second, the court needs to decide whether the impairment was one of the reasons for the less favourable treatment. It was not necessary to show the defendant had knowledge of the disability, or had consciously discriminated against the complainant.

Law Chi Yuen v Secretary for Education (HCAL 91/2011) Court of First Instance

The government provided funding under the Native-speaking English Teacher Scheme for mainstream schools, but excluded special schools for students with intellectual disabilities. The court found that this decision amounted to direct discrimination.

HONG KONG CASES

government policies

Social Security Allowance (SSA) Scheme

The Social Security Allowance Scheme is a non-statutory program that provides monetary support for severely disabled persons.

There are two particular schemes that are people with disabilities:

Normal Disability Allowance
- he/she is certified by the Director of Health or the Chief Executive, Hospital Authority (or under exceptional circumstances by a registered medical practitioner of a private hospital) to be severely disabled; and
- his/her disabling condition will persist for at least 6 months.
Higher Disability Allowance
- in addition to meeting the eligibility criteria for Normal Disability Allowance above, he/she must be certified by the Director of Health or the Chief Executive, Hospital Authority (or under exceptional circumstances by a registered medical practitioner of a private hospital) to be in need of constant attendance from others in his/her daily life; and
- he/she is not receiving care in residential institutions subsidized by the government (including subsidized places in subvented/contract homes and residential care homes under various bought place schemes) or all public hospitals and institutions under the Hospital Authority, or boarding in special schools under the Education Bureau.

To learn more about the scheme, please visit the government website here.

Integrated Education

The Education Bureau has a policy of placing students with special education needs in mainstream schools as far as possible. Underpinned by the Operation Guide, the government provides support to mainstream schools to enable integrated education, for example through Learning Support Grants.

According to the Disability Discrimination Ordinance (Cap. 487) and the Code of Practice on Education issued by the Equal Opportunities Commission, all educational establishments have the obligation to provide equal educational opportunities to eligible students, including students with Special Educational Needs (SEN).

Students with SEN refer to students who need special educational support because of learning or adjustment difficulties categorised as: (a) Specific Learning Difficulties; (b) Attention Deficit/Hyperactivity Disorder; (c) Autism Spectrum Disorders; (d) Speech and Language Impairment; (e) Intellectual Disability; (f) Hearing Impairment; (g) Physical Disability; (h) Visual Impairment; and (i) Mental Illness (included as a type of SEN from 2017/18 onwards — unless stated otherwise, all years mentioned hereinafter refer to school years).

Accessibility in Publicly Accessible Premises

In 2010, the EOC released its formal investigation report on accessibility in publicly accessible premises. Using the Building Department’s Design Manual Barrier Free Access 2008 as a benchmark, the investigation covered 60 target premises owned various public entities. The report made many recommendations on improving accessibility.

In response, the government embarked on a major retrofitting program covering 3500 government premises. The program was completed in 2014. The government has also implemented a system of Access Co-ordinators and Offices.

To learn more about how to contact the government in relation to any enquiries or comments on the accessibility of premises, facilities, please visit the website of the Labour and Welfare Bureau here.

Consultation Paper on Sexual Offences Involving Children and Persons with Mental Impairment

The Law Reform Commission is reviewing sexual offences involving children and persons with mental impairments. With regards to the latter, a range of gender-neutral new offences was recommended to provide for better protection.

To view the consultation paper, please click here.

Guidance for Airline Operators in Hong Kong: Facilitation of Persons with Reduced Mobility in Air Travel

Issued by the Civil Aviation Department, the Guide sets out a series of non-binding recommendations to facilitate air travel for persons with reduced mobility.

To view the guide, please click here.

GOVERNMENT POLICIES

KEY ISSUES

INCLUSIVE EDUCATION

The right to education is a universal right recognized by international human rights law and, as such, applies to all persons, including persons with disabilities. School systems have typically adopted one of three different approaches to persons with disabilities: exclusion, segregation and integration. Exclusion occurs when a student is kept away from school on the basis of the existence of an impairment, without another educational opportunity on equal terms with other students being provided. Segregation occurs when such a student is sent to a school designed to respond to a particular impairment, usually in a special-education school system. Integration is when a student with an impairment is placed in a mainstream school, so long as he can adjust to fit the standardized requirements of the school.

The inclusive education approach has emerged as a response to these discriminatory approaches. Inclusion is a process that recognizes: (a) the obligation to eliminate barriers that restrict or ban participation, and (b) the need to change culture, policy and practice of the mainstream schools to accommodate the needs of all students, including those with impairments. Inclusive education has been acknowledged as the most appropriate modality for States to guarantee universality and non-discrimination in the right to education.

International legal resources

Convention on the Rights of Persons with Disabilities

of the Convention on the Rights of Persons with Disabilities (“CRPD”), which deals with education, affirms the right of persons with disabilities to education. In order to realize this right without discrimination and on the basis of equal opportunity, state parties are required to ensure an inclusive education system at all levels and Article 24life long learning directed to the full development of human potential and sense of dignity and self-worth, and the development of their personality, talents and creativity, as well as mental and physical abilities, to their fullest potential, in order to enable them to participate effectively in a free society.

International Convention on Economic, Social and Cultural Rights

Before the promulgation of CRPD, the international community has already expressed increased interest and commitment to protect the right to education of persons with disabilities. Articles 13 and 14 of ICESCR relates to the right to education. The concept of inclusive education is contained implicitly in Article 13 (1) which reads:

“The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”

UN Human Rights Council - Thematic Study on the Rights of Persons with Disabilities to Education

Recognizing the importance of the right to education, the Human Rights Council in 2013 has requested the Office of the High Commissioner for Human Rights to prepare a Thematic study on the rights of persons with disabilities to education, in consultation with States and other relevant stakeholders. The study focuses on inclusive education as a means to realize the universal right to education, including for persons with disabilities. It analyses the relevant provisions of CRPD, highlights good practices and discusses challenges and strategies for the establishment of inclusive education systems.

The study is still on-going and has so far received submissions from states, national human rights institutions, intergovernmental organizations, NGOs, INGOs, DPOs. You can access them at the OCHCR website here.

Convention on the Rights of the Child

(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(e) The development of respect for the natural environment.

Committee on Elimination of Discrimination Against Women - Concluding Observations

In its latest concluding observations on China published on 14 November 2014, the Committee expressed concerns that about the limited access to education for women and girls with intellectual disabilities and recommended the removal of all obstacles to access to education for women and girls with disabilities, particularly those with intellectual disabilities (paragraphs 35-36; pdf).

United Nations Educational, Scientific and Cultural Organization - Policy Guidelines

The United Nations Education, Scientific and Cultural Organization (“UNESCO”) is a specialized agency of the United Nations. It was created in 1945 on the belief that peace must be established on the basis of humanity’s moral and intellectual solidarity. It strives to build network among nations by mobilizing for education, building intercultural understanding, pursuing scientific cooperation and protecting freedom of expression.

UNESCO issued its Policy Guidelines on Inclusion in Education in 2009 (pdf). The objectives of these Guidelines are to assist countries in strengthening the focus on inclusion in their strategies and plans for education, to introduce the broadened concept of inclusive education and to highlight the areas that need particular attention to promote inclusive education and strengthen policy development.

European Convention on Human Rights

Article 2 Protocol 1 of the European Convention on Human Rights deals with the right to education and reads as follows:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Article 14 of ECHR is the provision on prohibition on discrimination. It reads:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

It is well-established that disability is included in “other status”.

Frameworks of Hong Kong

Special Education Needs

In accordance to the principle of "one curriculum framework for all', students with special educational needs (SEN), like their able counterparts follow the mainstream school curriculum and are offered essential life-long learning experiences in Hong Kong. The Committee on Special Educational Needs (CSEN) under the Curriculum Development Council is responsible for formulating policy and overseeing curriculum development for students with SEN.

Read more about Special Educational Needs from the website of Education Bureau here.

Advocacy materials

1. United Nations Educational, Scientific, and Cultural Organization (UNESCO), Towards Inclusive Education for Children with Disabilities: A Guideline, 2009 (pdf)

This Guideline is the outcome of a project developed by UNESCO Bangkok to analyze the complex interplay of factors which result in exclusion and to obtain detailed information about education systems in selected countries where a specific commitment has been made to include children with disabilities in schools, in the national education process, and in the monitoring process. This Guideline aims to provide helpful guidance to all the countries in the region as they move to include all children, including those with disabilities and other disadvantaged situations, in their national education plans and implementation.

2. UNESCO, Policy Guidelines on Inclusion in Education, 2009 (pdf)

This Guideline serves as a resource for policymakers, teachers and learners, community leaders and members of civil society in their efforts to promote more effective strategies for reaching the Education For All goals. The Guideline first explains the relevance of inclusive education in today’s context and describes how inclusion is linked to Education for All. It then outlines the key elements in the shift towards inclusion with a particular focus on teaching for inclusion and the role of teachers, other educators, non-teaching support staff, communities and parents. It also provides some simple tools for policy-makers and education planners for hands-on analysis of education plans in view of inclusive education.

3. Enabling Education Network (EEN) UK, Enabling Education Review Special Issue- 2015 “Inclusive Education Advocacy, 2015 (pdf)

This Special Edition of EEN’s Enabling Education Review documents examples of ‘inclusive education advocacy in action’ in Armenia, Tajikistan, Gaza, Indonesia and Afghanistan, in particular the strategies used and the challenges the advocates encountered in the process. The aim is to help those working in education to better understand how to turn advocacy ideas and theories into appropriate practical action.

4. Richard Wiezer, Implementing Inclusive Education: A Commonwealth Guide to Implementing Article 24 of the UN Convention on the Rights of Persons with Disabilities (Second Edition), 2012 (pdf)

This Report critically examines international, district and regional and national programmes geared towards inclusive education in countries across the Commonwealth and beyond that have signed and ratified the CRPD. It also addresses issues such as changing attitudes, how to develop a “disability rights in education model” and how to develop inclusive practice at school and class level.

5. Catholic Relief Services Vietnam, How-to Guide: Inclusive Education for Children with Disabilities, 2007 (pdf)

This Guide outlines the recommended steps and main components of building a successful inclusive education programme, backed-up by the real-life experience of CRS/Vietnam, as well as lessons learned and a list of indicators for successful programmes. The Guide also provides information on CRS/Vietnam’s next steps to expand, improve and sustain its inclusive education initiatives through policy advocacy; specific recommendations for the inclusion of children with various or multiple impairments; and general recommendations for other developing countries interested in building inclusive education programmes.

Useful websites

UNICEF, Europe and Central Asia Regional Inclusive Education Portal (link)

This website is designed to provide information regarding the work that UNICEF in Central and Eastern Europe and the Commonwealth of Independent States (CEE/CIS) and its partners are involved in, particularly with regards to promoting and supporting Inclusive Education. The website contains a database of human and intellectual resources that have guided UNICEF CEE/CIS’s work on Inclusive Education, particularly with a focus on children with disabilities, and aims to provide information to all interested partners, in an easy and accessible format. This micro-site will further provide UNICEF and its partners with a forum in which to dialogue, share resources, collaborate and further promote the development of education systems that are inclusive of each and every child.

Enabling Education Network (link)

EENET (Enabling Education Network) is an inclusive education information-sharing network based in the UK. The site contains an extensive resource database with over 800 short articles, longer documents, posters, training manuals, videos and much more from around the world.

UNESCO (link)

United Nations Educational, Scientific and Cultural Organisation - Education for All website.

Links and Resources page of Inclusive Education Action Group (IEAG) (link)

A New Zealand organization that advocates for change in the education system through promoting knowledge, attitudes, policies and practices that facilitate inclusive education. This page contains links to and resources of other inclusive education groups that are involved in advocacy for inclusive education.

LEGAL CAPACITY

Legal capacity is what a person can do within the framework of the legal system. This includes the right to access the judicial system and the legal independence to speak on his or her own behalf. It is the ability to make decisions for and take control over oneself. The trend in recent years favours a supported decision-making regime over a substituted decision-making regime.

International legal resources

Committee on the Rights of Persons with Disabilities - Convention on the Rights of Persons with Disabilities

Article 12 of the Convention on the Rights of Persons with Disabilities (“CRPD”) affirms the equal recognition before the law and the legal capacity of persons with disabilities. Although the CRPD does not prohibit restrictions on legal capacity, Article 12 recognizes that persons with disabilities have legal capacity on an equal basis with others. In other words, disability alone does not justify the deprivation of legal capacity.

Article 12 stipulates that:

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

UN Human Rights Council - Thematic Studies

The following are documents issued by the Human Rights Council concerning legal capacity:

Thematic Study on enhancing awareness and understanding of the CRPD

The Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities was carried out pursuant to a requested by the Human Rights Council. It focuses on legal measures required for the ratification and effective implementation of the Convention on the Rights of Persons with Disabilities.

European Court of Human Rights

The European Convention on Human Rights does not contain an express provision protecting the right to legal capacity, but the European Court of Human Rights has interpreted a number of articles to encompass such right. In particular, in recent years, the European Court of Human Rights has heard a succession of cases that have significantly developed its interpretation of a number of articles of the European Convention on Human Rights in relation to legal capacity.

Before an overview of the case law on legal capacity developed by the European Court of Human Rights, the doctrine of margin of appreciation is crucial to understanding the European system. It is a doctrine developed by the European Court of Human Rights, which grants Members States the discretionary power to adopt both steps to implement the European Convention on Human Rights and steps that interfere with some of the rights and freedoms protected by the European Convention on Human Rights, but are considered to be justifiable because they are necessary to preserve public order and/or to protect the rights and freedoms of others in a democratic society. In other words, other than a rare group of absolute rights or freedoms, Members States are left with some room to assess whether appropriate restrictions should be placed on a right or freedom protected under the European Convention on Human Rights where important national interests and diverse social, cultural, or moral convictions are at stake.

Inter-American Commission on Human Rights

The Inter American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities states that determinations of incapacity do not constitute discrimination. In particular, Article 1(2)(b) of the Convention provides that “If, under a state’s internal law, a person can be declared legally incompetent, when necessary and appropriate for his or her well-being, such declaration does not constitute discrimination.” This is inconsistent with Article 12 of the CRPD, which requires states parties to recognize that persons with disabilities “enjoy legal capacity on an equal basis with others, in all aspects of life.”

Frameworks of Hong Kong

Under the Mental Health Ordinance (MHO), a person with a ‘mental disorder’ or ‘handicap’ can be found to be a mentally incapacitated person (MIP). MIPs face many challenges, including being unable to consent to sexual intercourse under law or to open bank accounts.

In accordance to the s 2 of the MHO, “mentally incapacitated person” (精神上無行為能力的人) means—

(a)for the purposes of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs; or

(b)for all other purposes, a patient or a mentally handicapped person, as the case may be[.]

Advocacy materials

1. Inclusion International, Independent But Not Alone: A Global Report on the Right to Decide, 2014 (pdf)

Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) reflects a fundamental shift in thinking: it asserts that with support all people with intellectual disabilities are able to make decisions and have control in their lives. This global report by Inclusion International presents the perspective of over 600 people self-advocates, family members, disability advocates, and professionals, and more than 80 organizations from more than 40 countries worldwide on the right to decide. The key findings of the report include:

Invest in empowerment, self-advocacy and strengthening a collective voice
Independence does not mean “alone”
Families have a critical role to play in building the social connections necessary for supported decision making
Family based organizations must play a leadership role as agents of change in community
The Right to Decide cannot be achieved without community inclusion
The Right to Decide is about more than the removal of guardianship and substitute decision making
Legal reform must go hand in hand with strategies for building community supports and supports for decision making

2. Mental Disability Advocacy Centre (MDAC), Right to Legal Capacity in Kenya, 2014 (pdf)

The report highlights the voices of people with mental disabilities themselves for the first time, outlining the need for substantial legal and social reform, and provides comprehensive recommendations to bring Kenya in line with international law, and specifically right to legal capacity guaranteed by Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD).

3. European Union Agency for Fundamental Rights, Legal capacity of persons with intellectual disabilities and persons with mental health problems, 2013 (pdf)

This report presents the European Union Agency for Fundamental Rights’ (FRA) legal analysis of current standards and safeguards concerning the legal capacity of persons with intellectual disabilities and persons with mental health problems. It uses legal and sociological research methods to highlight discrepancies between the CRPD – ratified by 24 European Union Member States and the EU itself, the first supranational government to ratify a human rights treaty – and the implementation of its standards on the ground. This report analyses the current international and European legal standards and compares EU Member States’ laws in the area of legal capacity.

The report twins this analysis with the lived experiences of a small number of interviewees regarding the loss of legal capacity and other restrictions on their ability to take decisions. This socio-legal approach provides an overview of the legal situation in an area of rapid and significant reform with an insight into how such laws impact the daily lives of those they most directly affect.

4. Mental Disability Advocacy Centre (MDAC), Legal Capacity in Europe, 2013 (pdf)

The purpose of the report is to call on governments and the institutions of the European Union to take concrete law and policy actions so that all people with disabilities have their right to legal capacity, and have access to supports to exercise it.

The report has 8 chapters. Chapter 1 presents a roadmap to the report. Chapter 2 sets out why guardianship is in dire need of reform. Chapter 3 sets out a vision for equality and inclusion and also analyzes the deficiencies of some existing data on guardianship in Europe Chapter 4 provides advice to governments about the provisions which they could consider adopting in legislation to give practical effect to the CRPD obligations. Chapter 5 lays out some of the learning which MDAC has gathered over the last few years as they have interacted in various ways with non-governmental organisations and governments in eleven European countries. Chapter 6 looks at the obligations of EU institutions under CRPD. Chapter 7 provides a snapshot of legal capacity law reforms in 16 European jurisdictions. Chapter 8 contains references for further reading.

5. Council of Europe Commissioner for Human Rights, Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities, 2012 (pdf)

The bulk of European legal capacity systems are outdated and in urgent need of law reform. The assumption of legal capacity, which all adults of majority age should enjoy, has to be extended to persons with disabilities. It redirects our focus away from personal deficiencies towards putting into place supports that enable individuals to make decisions for themselves and expand their capacities to do so. This Issue Paper describes the challenges faced by Council of Europe member states in dealing with the issue. These include the flaws of current guardianship systems and procedures, the automatic loss of human rights of those placed under guardianship regimes and the pressing need to develop support alternatives giving persons with disabilities equal opportunities to shape their life paths. The paper outlines the applicable international human rights frame-work, including the relevant case-law from the European Court of Human Rights. It concludes with examples of good practice to show the way forward.

6.Inclusion Europe, Position Paper on Legal Capacity- Key Elements of a System for Supported Decision-Making, 2009 (pdf)

Article 12 of CRPD introduces a fundamental shift of thinking from substitute decision-making to supported decision-making of disabled people. This position paper aims to identify some of the necessary conditions for the transposition of this paradigm shift into national laws. While the concrete transposition will be rather different for countries which become States Parties to the UN Convention, depending on legal structures and traditions, this Position Paper sets out to consider crucial elements without which national laws may fall short of the intentions manifested in Article 12. For supported decision-making to become a reality, States Parties are not only required to consider reforms of their national guardianship legislation, but it is furthermore important to implement a number of non-legal structures and measures in addition to the necessary legal instruments, for example promotion and support of self-advocacy, selection and registration of support persons, overcoming communication barriers and implementing safeguards. Since the issues related to legal capacity are linked to the basic structure of our societies, it is also important to ponder some of the underlying philosophical questions in order to develop an adequate approach to the question at hand.

SUPPORTED EMPLOYMENT

The right to work is a fundamental right. It is essential for realising other human rights and forms an inseparable and inherent part of human dignity. According to the United Nations Convention on the Rights of Persons with Disabilities, persons with disabilities have the right to work on an equal basis with others. This includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. Supported employment involves on-the-job training in a regular workplace. It has been found to be more effective in leading to jobs and is a preferable alternative to sheltered employment, which generally takes place in a separate workshop setting.

International legal resources

Convention on the Rights of Persons with Disabilities

Article 27 of the Convention on the Rights of Persons with Disabilities (“CRPD”), which deals with work and employment, affirms the right of persons with disabilities to work, on an equal basis with others.

Committee on Economic, Social and Cultural Rights

The ICESCR was promulgated in 1976. As at 17 January 2017, 165 out of 170 signatory states have ratified the ICESCR. The Optional Protocol, promulgated in 2009, is ratified by 22 states. China has signed and ratified the ICESCR but not the Optional Protocol.

UN Human Rights Council - Thematic Study on Work and Employment of Persons with Disabilities

The Thematic Study on work and employment of persons with disabilities was prepared by the Office of the United Nations High Commissioner for Human Rights on 12 December 2012 pursuant to a request by the Human Rights Council. It analyses relevant provisions of the Convention on the Rights of Persons with Disabilities, highlights good practices in promoting employment opportunities for persons with disabilities, and identifies the main challenges that States parties encounter in ensuring that persons with disabilities enjoy access to, retention of and advancement in employment on an equal basis with others.

European Social Charter

Article 15, paragraph 2 of the European Social Charter deals with the right to employment, which requires states to guarantee access to employment on the open labour market for persons with disabilities. States enjoy a margin of appreciation in the measures they adopt to enable this, however anti-discrimination legislation and protection against dismissal is required. Sheltered employment facilities must be reserved for those persons with disabilities who cannot and only by reason of their disability be integrated into the open labour market – should be the exception-and should aim to assist workers to migrate to the open labour market. People working in sheltered employment facilities, where production is the main activity, must enjoy the usual benefits of labour law and in particular the right to fair remuneration and respect for trade union rights.

European Court of Human Rights

The European Convention on Human Rights does not deal directly with the right to employment. However, Articles 8 and 14 are often engaged where persons with disabilities are denied employment opportunities due to their disabilities or due to the failure to provide reasonable accommodation. Article 8 guarantees an individual’s right to private and family life, whilst Article 14 prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Unfortunately there is no case law so far that has pronounced on this issue. In Bayrakci v Turkey (5 February 2016- see ECHR press release or French decision), a tax official complained that the lack of toilet facilities at work after his accident rendered him 60% disabled (one leg amputated) and argued that Articles 8 and 14 were violated. The courts, whilst accepting that the lack of suitable toilet facilities at his workplace could admittedly have had real and serious consequences for the applicant’s daily life, such as to arouse feelings of humiliation and distress that could impinge on the quality of his private life, declared the case as inadmissible because of the applicant’s failure to exhaust all domestic remedies in particular to bring his grievances before the administrative courts.

An interesting case in January 2016 relating to the work conditions of personal assistants that care for persons with disabilities attempted to engage Article 4, which prohibits forced or compulsory labor. In Radi and Gherghina v Romania(5 January 2016- see English decision), a nurse aunt (the first applicant) argued that gave up her job and worked as a personal assistant employed by local authority to take care of his disabled nephew (the second applicant) after accident complained about disadvantageous working conditions attached to contract. For example she was only paid the minimum wage, the nature of work performed was disadvantageous, and she had no entitlements such as holiday pay. The court found the application to be manifestly ill-founded as the first applicant had voluntarily entered into the employment contract with the local authority and was free to denounce it at anytime without any consequences to her. She could also challenge the level of remuneration in court.

Frameworks of Hong Kong

The Social Welfare Department offers a service of Supported Employment which provides support for persons with disabilities in employment and to allow them to work in an integrated open setting with necessary support service. The

To be eligible for the service, an applicant should be:

aged 15 or above;
person with disabilities who is assessed to be capable of or likely capable of open employment if provided with special support programme;
has adequate self-care and daily living skills; and
has motivation to take up open employment.

Please click here to learn more about the application. To view a list of supported employment services in Hong Kong, please click here.

Hong Kong Rehabilitation Power also provides a service of training for supported employment, you may read more about it here.

Advocacy materials

The following are relevant and useful advocacy and training materials on the issue of supported employment:

1. HR Council for the Non-Profit Sector (Canada), HR Toolkit on Diversity at Work- Supporting Employees with Disabilities (website)

This toolkit provides useful guidance on how to support employees with disabilities in the workplace. It includes examples of practical and supportive policies that would help create an inclusive workplace, including the duty to accommodate. It then goes on to explain how the duty to accommodate works in the context of recruitment and selection, during employment, and whether there are any grounds for not accommodating. It concludes with an interesting and useful list of preferred terminology to use that are not demeaning or hurtful.

2. United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Disability at a Glance 2015, 2016 (pdf)

Disability at a Glance 2015 focuses on barriers to the employment of persons with disabilities in the Asia-Pacific region, and offers solutions to strengthen their employment prospects. Employment is not only the primary means of livelihood generation; it also provides individuals with the purpose and meaning of playing a productive role in society. Equal access to employment is therefore vital, and barriers to work faced by persons with disabilities must be removed.This fifth edition in the Disability at a Glance series offers a regional overview of disability legislation, policies and practices, as well as relevant country-specific information. The information draws on both a targeted disability survey carried out by the ESCAP secretariat, and research undertaken by other organizations and scholars.

3. International Labour Organization, Inclusion of People with Disabilities in China, 2013 (pdf)

This factsheet outlines the current situation of people with disabilities in China, the government support provided for them, the key groups and ministries responsible for people with disabilities, key international standards and their status in China, organizations for and of people with disabilities and the role of ILO. The factsheet concludes with suggestions that people with disabilities be provided with productive and decent work and that ensuring a disability perspective in all aspects of policy and labour legislation, effective implementation and enforcement of existing disability laws and policies and providing for equal employment and training opportunities are among the factors that contribute to the reduction of poverty and to the social and economic inclusion of people with disabilities in China.

4. International Labour Organization, Facts on People with Disabilities in China, 2008 (pdf)

This factsheet outlines the key figures relating to people with disabilities in China. It then explains the challenges faced by them, including in employment The factsheet concludes with an overview of the ILO programmes on disabilities in China.

REASONABLE ACCOMMODATION

A reasonable accommodation is a modification or adjustment provided to persons with disabilities in order to facilitate equal opportunities in their effective participation and exercise of rights. At the same time, the accommodation must not impose a disproportionate or undue burden on the duty-bearer.

International legal resources

Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (“CRPD”) is the first legally binding human rights instrument that requires reasonable accommodation be accorded to persons with disabilities in order to enable them to exercise their rights fully and equally with other persons. In particular, the CRPD makes it clear that a failure to comply with a reasonable accommodation duty is a form of discrimination on the basis of disability. Article 2 of the CRPD defines “discrimination on the basis of disability” to specifically include the “denial of reasonable accommodation”. Thus, the obligation imposed on States Parties under Article 5(2) to “prohibit all discrimination on the basis of disability” would include an obligation to provide reasonable accommodation to persons with disabilities. The obligation under Article 5(3) to “take all appropriate steps to ensure that reasonable accommodation is provided” would include an obligation on the States Parties to impose the duty to provide reasonable accommodation on different sectors of society such as transportation providers, employers, and schools etc.

Committee on Economic, Social and Cultural Rights

Reasonable accommodation, although not explicitly mentioned, is closely linked to the rights guaranteed in the International Convention on Economic, Social and Cultural Rights as it is indispensable for the practical enjoyment of such rights by persons with disabilities.

European Convention on Human Rights

There is no direct provision in the European Convention on Human Rights addressing the right to reasonable accommodation. However, potentially two specific rights are relevant. The first is the right to private life under Article 8. The second is the freedom against torture, cruel, inhuman or degrading treatment under Article 3. The non-discrimination provision under Article 14 is also potentially relevant.

Frameworks for Hong Kong

In Hong Kong, the Housing Department (HD) will take into consideration of the need of persons with disabilities (PWDs) or chronic diseases and provide them with appropriate assistance when allocating public housing flats.

The Housing Department provides the following assistance to PWDs:

1. Conversion

If a flat has to be converted to cater for the needs of PWDs, HD will undertake the full cost incurred. Conversion works include, where practicable, widening of doorway with provision of ramp, conversion of bath tub into shower area, installation of grab rails in the bathroom and raising the floor slab of the balcony to make it level with that of the living room, etc.

2. Transfer

In cases where conversion to an existing flat is not feasible due to physical constraints, a disabled person may apply for transfer to a flat in the same or another estate together with his/her family. HD will consider such applications on individual merits and make appropriate arrangements.

3. 50% Concessionary Discount on Monthly and Hourly Parking Fees

Private car or motor cycle drivers may enjoy a 50% concessionary discount on monthly parking fee of the Hong Kong Housing Authority (HA)'s carparks if they are living or working in the public housing estate where the carpark located, and are holding an approval letter from the Commissioner for Transport or a valid Disabled Person’s Parking Permit issued by the Transport Department. Besides, private car or motor cycle drivers holding the approval letter or the Disabled Person’s Parking Permit may also enjoy a 50% concessionary discount on hourly parking fees in HA’s carparks.

4. Flashing-light Doorbells

When necessary, hearing-impaired persons may apply to HD for the free installation of a flashing-light doorbell for their ease of answering the door.

5. Service Dog

Keeping of dogs inside leased premises without the prior written consent of the HA is prohibited. In general, HA will not approve application for dog keeping, except under special situation (e.g. keeping guide dogs for tenants with visual and audio disabilities or keeping of companion dogs for tenants in need of accompany of a dog for mental support, with provision of medical support from medical practitioners) on conditional approval.

6. In-flat Repair Works

In case of need to carry out repairs to in-flat items that should be handled by tenants on their own, households having family members with disabilities may approach HD for the arrangement of such repair works at their own cost.

7. Estate Improvement Works

Public housing estates are designed to provide, as far as possible, a barrier-free living environment to facilitate the PWDs in accessing the services and facilities that the estates provide. HD will continue to carry out various improvement works to enhance the barrier free access provisions in existing estates.

8. Assistance Provided in Case of Emergency

Households having family members with disabilities, such as hearing impaired, visually impaired, mobility handicapped (wheelchair-bound), tetraplegia, requiring to undergo renal dialysis at home, having chronic diseases in need of special care, may opt for the special notification service provided by HD. Tenants are required to provide their emergency telephone contacts and other relevant information to the staff of the estate offices and authorize them to notify the contact person(s) in case of suspension of fresh water/electricity supply and lift service and in emergency (e.g. fire); and to transfer such information to other departments such as the Police, Fire Services Department etc. in case of emergency for contact purpose.

9. Others

Households having family members with disabilities or chronic diseases may approach the Social Welfare Department direct or through the respective estate offices for other support services such as home help, rehabilitation and counselling services.

Please click here to read more on the website of Housing Department.

Advocacy materials

1. United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), Accessibility for All: Good practices of accessibility in Asia and the Pacific to promote disability-inclusive development, 2016 (pdf)

This publication seeks to support policymakers in promoting accessibility at a policy and practical level. It contains information on relevant global and regional mandates that support and promote disability-inclusive development and accessibility, with a view to demonstrate the multi-faceted value of focusing on disability and accessibility policies to achieve broader development goals. Readers will learn about the core concepts of disability and accessibility, and be empowered with knowledge on standards, tools and means of promoting accessibility.

Furthermore, this publication will outline and analyse examples of good practices of accessibility identified in Asia and the Pacific. The majority of the good practices featured in this publication were initially discussed at two international and multi-stakeholder workshops that took place in 2014 and 2015, with a few additional examples drawn from Pacific island member States. The selection of practices for this publication is based on their embodiment of the principles of accessibility, demonstrated success, measurable impact on the community, and their adaptable and replicable nature.

2. European Commission, Reasonable Accommodation beyond Disability in Europe?, 2013 (pdf)

This report discusses the merits and drawbacks of extending the duty to provide for reasonable accommodation beyond disability, with a focus on the discrimination grounds covered by the European network of legal experts in the non-discrimination field (race and ethnic origin, religion and belief, age and sexual orientation). It chiefly focuses on the question of whether the concept of reasonable accommodation is superfluous beyond disability because other tools are in place (e.g. good practices, dynamic interpretation of indirect discrimination, etc.).

The report is useful to understand the basic legal frameworks of reasonable accommodation in the US, Canada, Council of Europe, European Union and individual EU Member States. It also analyzes the reasons why disability might be the only ground giving rise to the duty of reasonable accommodation in certain jurisdictions but not others.

3. International Telecommunications Union, G3ict, and the Centre for Internet and Society, e-Accessibility Policy Handbook for Persons with Disabilities, 2010 (pdf)

Digital Accessibility is a key mandate of the Convention on the Rights of Persons with Disabilities. Whereas the Convention mandates desired outcomes, it does not prescribe specific digital accessibility solutions or references. The Toolkit is therefore designed to support States parties to the Convention in identifying the requirements of Article 9 of the Convention and analyzing local gaps in digital accessibility programs and policies, provide a framework for the development of policies and strategies for mainstreaming digital accessibility at national, regional and international levels, serve as a global electronic repository of policies, international standards, good practices and technical references on digital accessibility, facilitate the design of effective policy frameworks responding to the needs of e-inclusiveness principles covering Communication, Information & Services, promote accessible and assistive ICT applications by fostering public-private cooperation in order to expand ICT usage by persons with disabilities and provide specific guidance to adequately address key issues of particular relevance to developing country environments.

4. United Nations Development Programme (UNDP) Malaysia, A Review of the International Best Practice in Accessible Public Transportation for Persons with Disabilities, 2010 (pdf)

This report provides an international overview of the key technical issues on accessible public transportation for persons with disabilities. It begins with a brief description of the prevalence of disability and factors that influence accessibility. It also explains why safe and convenient pedestrian infrastructure is particularly essential for persons with disabilities if they wish to satisfactorily access public transport. It then provides a discussion on design requirements and best practices for vehicles, bus stops and bus and train stations as well as important arguments on the importance of signage and information. The report also illustrates best practices for training courses for transport providers and transport users as these have been among the central elements for making public transport services more accessible. The report also explains how some of the barriers faced by persons with disabilities are often an unintentional result of particular policies of government and transport operators.

5. Republic of South Africa Department of Public Service and Administration, Handbook on Reasonable Accommodation for People with Disabilities in the Public Service, 2007 (pdf)

This Handbook on Reasonable Accommodation for People with Disabilities is a Public Service innovative, creative and visionary tool to fast track the efforts of ensuring an all inclusive Public Service towards restoring human dignity, the inherent right to work and economic independence, and to social justice. It serves as a tool to capacitate and empower people with disabilities towards being independent and self reliant in the workplace, with minimal assistance or reliance on collegial support.

6. European Center for Excellence in Personal Assistance, Model National Personal Assistance Policy, 2004 (pdf)

This Policy, compiled by persons with disabilities themselves, is created with the aim to promote self-determination and full citizenship for persons with extensive disabilities. It is designed to enable as many assistance users as possible to exercise the degree of control over their services which they prefer at any given situation in their lives by – providing assistance users with purchasing power which, in turn, creates a market for assistance services with a multitude of service providers with different service delivery solutions, – eliminating monopolies, public or private, in the provision of assistance services. As a policy document, the text is primarily addressed to lawmakers and those working for changes in personal assistance legislation. Its focus is not on prescribing service delivery solutions but on creating the legal and financial framework that promotes diversity and quality in service provision. As a model policy it may, at best, describe the ideal legislation, not the strategy in getting there. It shows the destination, but not the road map.

7. New Zealand Human Rights Commission, Reasonable accommodation of persons with disabilities in New Zealand (pdf)

This guide provides a useful summary of what reasonable accommodation means, the types of barriers that make it difficult or impossible for persons with disabilities to be accommodated and examples of what is considered reasonable. It also provides guidance for organizations, including explaining the benefits associated with providing reasonable accommodation, how to devise policies, procedures and services with reasonable accommodation in mind, including the use of Universal Design. It concludes with guidance to persons with disabilities on what their rights to reasonable accommodation are, how to effectively communicate requests for reasonable accommodation and how to make a complaint.

REASONABLE ACCOMMODATION

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