FLAC TCD - Disability Rights

Di s abi l i t y Ri ght s

Ar es ear c hr epor tbyTr i ni t yFLAC

A plain text version of this research report is available at this link.

RESEARCHERS - Abigayle Pigott

- Lochlan Liyuan Zhang

- Adaeze Chukwuogor

- Lorna Traynor

- Alisa Pasanen

- Matthew O'Shea

- Apolline Quinson

- Mira Bedi

- Dara Kavanagh

- Muireann Carton

- Dearbhla O'Regan

- Nadine Fitzpatrick

- Eleni O'Dwyer

- Ruairí Lee

- Eoin Jackson

- Sean Mulvaney

- Fiona Stenson

- Sinziana Stanciu

- Isabelle Healy

- Sophie Treacy

- Jennifer Brennan

- Sorcha Byrne

- Jessica Daniel

- Teresa Schell

- Julia Best

- Zoe Timmons

- Kylie Quinn

EDITORS Hugh Gallagher, Legal Research Officer, Trinity FLAC Rebecca Cleere, Deputy Legal Research Officer, Trinity FLAC Patricia O’Reilly, Deputy Legal Research Officer, Trinity FLAC

With thanks to: Susan Kennefick and Janelle Veitch, National Disability Authority Mark Bell, Regius Professor of Law, Trinity College Dublin Síofra Carlin, Chairperson, Trinity FLAC Lucy Shu Yao Lu, PRO, Trinity FLAC Georgia Dillon, Secretary, Trinity FLAC Page | 2

DISCLAIMER Trinity FLAC assumes no responsibility for and gives no guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in this report and/or for any consequences of any actions taken on the basis of the information provided, legal or otherwise.

The information provided in this report is not a complete source of information on all aspects of the law. Trinity FLAC takes no responsibility for any information or advice passed from a client to a third party. If you need professional or legal advice you should consult a suitably qualified person at one of our weekly clinics.

If there are any questions, please contact: tcdflacresearchproject@gmail.com.

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TABLE OF CONTENTS FOREWORD......................................................................................................7 INTRODUCTION..............................................................................................9 CONCLUSIONS...............................................................................................12 CHAPTER 1......................................................................................................14 Defining Disability Differing Models of Disability..........................................................................15 Defining Disability in Irish Law.......................................................................17 Case Study: ‘Invisible’ Disabilities..................................................................21

CHAPTER 2......................................................................................................25 Inclusion in Public and Political Life The right to political participation for persons with disabilities.....................26 Progress in lifting administrative and legal barriers in political participation for persons with disabilities.............................................................................27 Analysing the European Court of Human Rights Decisions in Strøbye v Denmark and Rosenlind v Denmark................................................................34

CHAPTER 3......................................................................................................39 Rights of Persons with Disabilities under National and International Legal Regimes The European Convention on Human Rights and The Protection of Persons with Disabilities................................................................................................40 United Nations Convention on the Rights of Persons with Disabilities...........43 A Critical Commentary on the Evolution of Ireland’s Legal and Policy Framework in Response to the UNCRPD........................................................46

CHAPTER 4......................................................................................................51 European Union Law The European Accessibility Act........................................................................52 The Employment Equality Directive.................................................................57

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CHAPTER 5......................................................................................................64 Criminal Justice and Persons with Disabilities The Criminal Trial of Persons with Disabilities..............................................65 The Irish Prison Service...................................................................................68 The Irish Probation Service.............................................................................70

CHAPTER 6......................................................................................................72 Education The right to an ‘appropriate’ education under Irish law.................................73 The Education for Persons with Special Educational Needs Act 2004............74 Educational Needs Assessments and Curriculum Design................................78 Case-study: School closure during Covid 19 and the rights of children with disabilities........................................................................................................82

CHAPTER 7......................................................................................................85 Employment Primary legislative and policy context for persons with disabilities and employment in Ireland......................................................................................86 Ireland’s comprehensive Employment Strategy for People with Disabilities..87 International Comparative: Legal Models for Workplace Inclusion...............93

CHAPTER 8......................................................................................................97 Social Welfare Overview of Irish Social Welfare Supports......................................................98 Placing the Social Welfare System in Context...............................................103 Future Directions and Recommendations for Reform...................................104

CHAPTER 9....................................................................................................109 Assisted Decision Making (Capacity) Act 2015 Wardship in Ireland.......................................................................................110 Changes introduced by the Act.......................................................................113

CHAPTER 10..................................................................................................119 Irish Sign Language Act 2017

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Overview of the Act........................................................................................120 Changes implemented by the Act....................................................................121 Scope and limitations of the Act.....................................................................124

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FOREWORD This report confirms the pressing need for further action to enhance the rights of persons with disabilities in Ireland. Its comprehensive review of different dimensions of social, economic, cultural, and political life reminds us that, in many areas, people with disabilities continue to encounter significant barriers to participating in the life of the community on an equal basis with others. As the report indicates, people with disabilities are at a greater risk of living in poverty and have significantly lower rates of employment than those without disabilities.

Children with disabilities face considerable hurdles to receiving appropriate and inclusive education. There are barriers to participating in political life. The experience of the criminal justice system of people with disabilities is not the same as that of persons without disabilities, whether as a victim of crime or as a person accused or convicted of an offence. While these are long-standing concerns, the experience of the pandemic exacerbated some forms of disadvantage, in particular during periods when schools and other support services were closed.

During recent decades, people with disabilities successfully advocated for law reform as a means of bringing about change. This report provides critical insight into the major legislative reforms in Ireland, as well as those stemming from the EU and international organisations. It identifies areas where there has been progress, but it also notes a pattern of shortcomings and delays in implementation.

For the global disability movement, the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2006 was a watershed moment.

Ireland was, regrettably, the last EU Member State to ratify this Convention in 2018 and, as this report makes clear, there are still many areas where the State needs to complete the task of bringing Irish law into compliance with the requirements of the Convention.

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One area where CRPD requires change is Ireland’s equality legislation. As this report explains, important strides have been made through the Employment Equality Acts, Equal Status Acts, and the Irish Human Rights and Equality Commission Act. At the same time, there are aspects of these laws that should be revised in the light of the CRPD and the avenues for their enforcement need to be strengthened. In 2021, the government launched a wide-ranging consultation on Ireland’s equality legislation. This is a welcome opportunity to look again at legislation first adopted over 20 years ago. The consultation indicated that it would address the substantive content of the law, such as the definition of disability, and the practical experience of seeking to enforce the rights found in the law. This report provides a valuable and timely contribution to the ongoing debate on the future reform of this legislation.

Mark Bell Regius Professor of Laws Trinity College Dublin.

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INTRODUCTION Following Ireland’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in March of 2018, the Programme for Government stated: “Ever since Ireland ratified the UN CRPD, we have signalled to those with a disability that we are now serious about making a difference – a difference that will make things better. The ratification raised awareness of the lived experience of people with disabilities, but we have much more to do.”

Therefore this research project proposed to consider the positive developments and shortcomings within current approaches towards the rights of persons with disabilities.

This research is inextricably shaped by the influence of the CRPD, with regards the substantive legal and policy changes which have occurred following its ratification but perhaps more fundamentally in regarding persons with disabilities as rights holders rather than objects of charity, medical treatment and social protection. This is aligned with the broad paradigm shift in attitudes and approaches to persons with disabilities, and has focused our researchers on critically evaluating the failures of society to accommodate individuals which impede the full enjoyment of their rights and active participation in all aspects of society. The core aim of this research was analysis of the present state of law and policy as they affected persons with disabilities, and the identification of future avenues for reform to ensure that their rights were fully realised in the spirit of the Convention.

Chapter 1 examines the primary models for defining disability, and considers is definition as a matter under Irish law. Chapter 2 investigates the right to participation in public and political life for persons with disabilities, focusing on the legal and policy barriers currently impacting the effective exercise of this

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right. Chapter 3 analyses the rights of persons with disabilities under the European Convention of Human Rights, the CRPD and Ireland’s progress in fulfilling its CRPD obligations. Chapter 4 provides an overview of the European Accessibility Act and the Employment Equality Directive supplemented by critical commentary. Chapter 5 focuses on the criminal justice system’s interactions with persons with disabilities, highlighting current inadequacies across all levels from the trial process to the probation service. Chapter 6 centres on the right to an ‘appropriate’ education and the broader legal and policy frameworks relating to the education of children with special educational needs.

Chapter 7 examines the major legislative and policy devices supporting persons with disabilities in the context of employment. Chapter 8 considers the Irish social welfare system and its role in protecting the rights of persons with disabilities.

Chapter 9 analyses the Assisted Decision-Making (‘Capacity’) Act, with its forthcoming abolition of wardship and introduction of an alternate decisionmaking support system. Chapter 10 focuses on the Irish Sign Language Act, outlining its key provisions while critically assessing its efficacy in meeting the needs of persons whose primary mode of communication is ISL.

I would like to thank all those who were involved in the publication of this report.

We are honoured to have our project foreword written by Professor Mark Bell, who threads together a number of the abstract patterns emerging from this research and provides his own insight into the area of disability rights. I am incredibly grateful to Janelle Veitch and Susan Kennefick for their assistance in the early stages of this project, particularly their kind words surrounding the importance of research in policy change and their insight into the area of disability rights in Ireland. I would extend my sincere thanks to my Deputy Legal Research Officers, Patricia O’Reilly and Rebecca Cleere, for their continued support and dedication to the research efforts of Trinity FLAC. I would like to highlight their

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extensive work in the editing stages of this project, both in their attention to detail and constructive approach to our researchers’ submissions. I would like to thank Síofra Carlin, Chairperson of Trinity FLAC, for her guidance during all stages of the project. I would like to thank Lucy Shu Yao Lu, Public Relations Officer of Trinity FLAC, for her continued work promoting this project and its associated events. Additionally, I would like to thank Georgia Dillon, Secretary of Trinity FLAC, for her kind support and assistance throughout this project. Finally, this report would not have been possible without our outstanding research team. It has been a pleasure to work alongside each and every one of you. The fruits of your efforts are evident within this research publication, and your submissions were an accurate reflection of your time and work. A sincere congratulations to all!

Hugh Gallagher Legal Research Officer, Trinity FLAC

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CONCLUSIONS •

The definition of disability under Irish law should be clarified and expanded to encompass the experiences of persons who experience disability due to impairments;

•

The social model of disability is the preferable model to be adopted in reforming the definition of disability under Irish law.

•

To secure the political agency and autonomy of persons with disabilities, it is necessary that their right to participation in public and political life is strongly protected in law, with the approach of the CRPD being preferred to that of the ECHR.

•

Core barriers to the full and effective political participation of persons with disabilities primarily relate to the communication of voting information and procedure, the accessibility of voting procedures and facilities themselves, and the provision of appropriate and specific supports those seeking to vote or stand for election.

•

The ECHR offers a relatively weak framework for the protection of disability rights, primarily due to the ECtHR piece-meal approach to this issue area and high deference to Member States.

•

The UNCRPD was an overwhelmingly positive development for the rights of persons with disabilitie, but has produced inconsistent legal and policy changes across it’s the states party to it.

•

Ireland’s legal and policy framework has evolved significantly since its ratification of the CRPD in compliance with their obligations, however there remains significant deficiencies in Ireland’s frameworks affecting persons with disabilities.

•

The current European legal framework is insufficient to enable persons with disabilities to fully participate in all aspects of society, including economic and social.

•

Within the criminal justice system, there is a pressing need for effective research and data collection, the adoption of inclusive practices within current services and the introduction of effective and appropriate support mechanisms across all its facets.

•

Despite judgements defining an “appropriate education” as one which allows a child to reach their full potential and capacities, it is seriously questionable whether this standard of “appropriate education” is being upheld for children with disabilities in Ireland.

•

Whilst the Education for Persons with Special Educational Needs (EPSEN) Act 2004 represented a step forward for special needs education in Ireland, further work is

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necessary by Government and the National Council for Special Education in realising the goals of this legislation.

•

In order to better deliver education to classes of children with mixed ability, Universal Design for Learning (UDL) should be adopted.

•

The restrictions imposed during the Covid-19 pandemic had a particularly adverse effect on school children with disabilities evidence the importance of ensuring all children with special educational needs receive an effective and inclusive education.

•

There is a need for policy schemes focusing on the transition from secondary school to further education for persons with disabilities, the commencement of proposed employment support systems, the implantation of universal design across workplaces and introducing flexible work arrangements more broadly across the employment sector.

•

The Irish social welfare system could further support persons with disabilities by responding to the rising costs of disability, mitigating against the disincentivising of participation in employment due to a loss of welfare benefits and an overhaul of the application and appeals process for those seeking to avail of social welfare supports.

•

The Assisted Decision-Making (‘Capacity’) Act 2015 it provides for a significantly more nuanced and compassionate treatment of those who may struggle exercising their decision-making capacity, than the antiquated system of wardship.

•

The Irish Sign Language Act 2017 ought to be more ambitious in future reforms to meet the needs of persons who utilise Irish Sign Language as their primary means of communication, such as expanding entitlements under the Act beyond public bodies.

•

In order for the aims of the Irish Sign Language Act 2017 to be realised, further investment in interpreter services and training is crucial.

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Chapter 1: Defining Disability Mira Bedi, Jessica Daniel, Eleni O'Dwyer

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Introduction The area of disability rights is a complex, delicate one that invokes much passion in its discourse. As this area attracts increased awareness, attention must be paid by Irish legislators to the models and definitions it employs of ‘disability’, and what such definitions signify.

This chapter will discuss differing models of disability, the definition of ‘disability’ in Irish law, and will conclude by examining the case study of ‘invisible’ disabilities.

I.

Differing Models of Disability

While significant progress has been made towards stigmas associated with disability, definition of the term remains relatively contentious. This is largely to do with the conflicting models of disability developed over the past century. State responses and provisions for persons with disability reflect to varying degrees the models of disability that have either been explicitly accepted or implicitly adopted. In exploring the unique frameworks of models of disability, this section will also assess its impact on the everyday lives of persons with disabilities.

A primary purpose of implementing disability models is so that an effective structure can be devised to aid and meet the needs of persons with disabilities. These models facilitate the identification and understanding of disability in a manner intelligible to policy-makers.

However, a number of these models have been constructed and dictated without the involvement of persons with disabilities, resultingly non-disabled persons have imposed definitions upon persons with disabilities.

The Medical Model A prime example of this is the controversial approach of the medical model of disability, that views all disabilities ‘as the result of some physiological impairment due to damage or a disease process’.1 Historically, disabled persons have been institutionalized largely due to the approaches deemed suitable by professionals engaged in medical practice. The overarching agenda in the medical

1

A. Llewellyn and K. Hogan, ‘The Use and Abuse of Models of Disability’ (2000) 15(1) Disability & Society 157.

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model is rooted around the idea that an individual has a physical, mental, or intellectual impairment. Disability is then viewed as an illness to be “cured” by medical intervention.

Those with disabilities, under this medical model, have often felt ‘excluded, undervalued, pressurised to fit a questionable norm, and/or treated as if they were globally incapacitated’.2 This model has been central to the development of specialised institutions removing persons with disabilities from the general populace. Yet, due to its easily comprehensible diagnostic system, it remains the dominant narrative in shaping the public's perception towards disability.3 The Social Model While the social model of disability is certainly not free from criticism, it comes as a response, partially from persons with disabilities, as a response to the failings of the medical model. This model of disability is seen as progressive as it recognizes that disability is rooted with society’s failure to provide adequate services and ensure that the needs of disabled people are considered.4 The foremost argument considered within the realm of the social model relates to the distinction between the meanings of ‘impairment’ and ‘disability’. It is argued widely that impairment, relating to how bodies function, is not the disabling factor. Rather, disability is a product of how society is organized, and results in disabled people being unnecessarily isolated and excluded from full participation in society.

With the distinction between these two terms clarified, disability is now being seen as a politicized issue that requires a response from those with considerable power in society. The social model thus holds those with power in the design of society accountable, and helps us recognize how disability is contextual, rather than a fact attributable to the individual.

Physical barriers directly relate to the issue of an environment preventing equal access. As defined by Inclusion London, a renowned charity supporting disabled organisations, these barriers range from ‘stairs/steps, narrow corridors and doorways, kerbs, inaccessible toilets,

2

Sara Goering, ‘Rethinking Disability: The Social Disability and Chronic Disease’ (2015) 8(2) Current Reviews in Musculoskeletal Medicine 134.

3 Julie F. Smart, ‘The Power of Models of Disability’ (2009) 75(2) Journal of Rehabilitation 3.

4 Mike Oliver, ‘The Social Model of Disability: Thirty Years On’ (2013) 28(7) Disability & Society 1024.

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inaccessible housing, poor lighting, poor seating, broken lifts or poorly managed street and public spaces’.5 These barriers operating in society are not solely restricted to physical barriers and can be attitudinal as well. Assumptions that people with certain impairments cannot, for example, work or live independently, or raise children – all stem from biased labels that limit persons with disabilities. Additionally, inadequate provision of supports operates is itself as a barrier, for example in considerations of decision-making capacity its effective exercise for persons with cognitive disabilities may require assistive technology or interpretation.

Mike Oliver, a person with disability, was a pioneer of the disability rights movement in the 1980’s. A key advocate of the social model of disability, Oliver believed that the social model, in recognizing barriers as the cause of disability, is a powerful tool for personal and collective emancipation.6 Advocates for disability rights tend to prefer the social model, as it does not denigrate persons with disabilities’ agency and locates disability in societal failures. The social model encourages disabled people's right to independence and control over their life.

Conclusion Michael Foucault presented the idea of heterotopia – the idea of making visible a different world within the existing one.7 Applying Foucault’s heterotopia to the world of disability rights results in the realization that society may need a model that envisages a non-disabling, fair and safe society to build into the fabric of the present society. The social model appears better aligned with this possibility. It encourages persons with disabilities to assume positions of power, to build support systems, inclusive environments, and shift those ‘fixed’ mindsets of the public. Therefore, support of the social model appears largely preferable, and its apparent enshrinement within the United Nations Convention on the Rights of Persons with Disabilities is promising.

II.

Defining Disability in Irish Law

5

'The Social Model of Disability' (Inclusion London, 2021) <https://www.inclusionlondon.org.uk/disability-inlondon/social-model/the-social-model-of-disability-and-the-cultural-model-of-deafness/> accessed 11 November 2021.

6 Mike Oliver, ‘Emancipatory Research: A Vehicle for Social Transformation or Policy Development’ (2002) 1st Annual Disability Research Seminar.

7 Arun Saldanha, ‘Heterotopia and Structuralism’ (2008) 40(9) Environment and Planning A: Economy and Space 40(9) 2080.

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Within the last few decades, Ireland created and implemented a variety of laws intended to protect and advance the rights of disabled persons, while also combating the discriminatory treatment that they may experience within different facets of society. Despite having the same objectives, these laws define the term ‘disability’ differently. In this section, the evolution of what disability means in Irish law will be explored.

Defining Disability in Irish Law In recent years, there has been a change in how disability is considered globally. Shifting from being assessed through a predominately medical perspective, disability is now characterized by interactions between individuals and with the environment.8 In order to promote the notion that people with disabilities are equal citizens who deserve the opportunity to fully participate in economic, social, and cultural life and choice in how they live their lives, Irish lawmakers created the National Disability Authority (NDA) in 2000.9 In its National Disability Strategy, launched in 2004, the definition of the term “disability'' is not mentioned. Without a clear definition drafted by this government agency, one must resort to looking through a multitude of relevant legislation to understand its meaning within a legal context.10 Through the analysis of these laws, it is apparent that they are connected through several common, and important principles. These include equality, independence, freedom of choice, and social inclusion.11 First mentioned as a definable concept in the National Disability Authority Act of 1999, disability is labelled as “a substantial restriction in the capacity of a person to participate in economic, social or cultural life on account of an enduring physical, sensory, learning, mental health or emotional impairment,” as related to a person.12 Seen again in the Education for Persons with Special Educational Needs Act of 2004, this definition is expanded to include

8

J. Banks, et. al, 'Disability and Discrimination in Ireland: Evidence from the QNHS Equality Modules 2004, 2010, 2014' (2018) IHREC <www.esri.ie/system/files/publications/bkmnext363.pdf> accessed 17 November 2021 9 'Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021; ‘Policy: National Disability Strategy’ (The Department of Justice) <www.justice.ie/en/jelr/nda%20-%20policy%20-%202.pdf/files/nda%20-%20policy%20-%202.pdf> accessed 17 November 2021.

10 'Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021.

11 Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021; A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, accessed 17 November 2021.

12 National Disability Authority Act 1999 s 2(1).

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“any other condition which results in a person learning differently from a person without that condition and cognate words shall be construed accordingly.”13 In 2005, with the passage of the Disability Act, the meaning of disability changed. Defined as “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment,” it is evident that the definition of disability matches the intended purpose of the law.14 By adding categories and varying contexts in which the term applies, lawmakers emit an atmosphere of exclusivity. This portrayal of disability as only existing within rigid, singular spaces has the potential to provide the public with the false impression that instances of discrimination based on disability that occur in diverse sectors of society are mutually exclusive.

This idea is echoed in the Equality Acts, which encompass the Employment Equality Acts (1998 - 2015) and the Equal Status Acts (2000 - 2015). These acts define disability as: “(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body; (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness; (c) the malfunction, malformation or disfigurement of a part of a person’s body; (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction; or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”15 This definition differs from other definitions of the term in law in terms of its specificity, in addition to the fact that it eliminates set contexts in which disability could be applicable. This version of disability accounts for chronic diseases and illnesses, which had previously not been specified, and reduces the potential for vague interpretations of its meaning by using more inclusive language.

13

Education for Persons with Special Educational Needs Act 2004 s 1(52).

Disability Act 2005, section 2(1).

15 'Definitions' (National Disability Authority) <https://nda.ie/disability-overview/definitions/> accessed 17 November 2021.

14

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It is important to recognize that the definition of disability is also shaped by official government surveys, such as the census. The Census of 2011 narrows the scope of disability further and defines it as: “A person with one or more of the following long-lasting conditions or difficulties: - Blindness or a severe vision impairment - Deafness or a severe hearing impairment - An intellectual disability - A difficulty with learning, remembering, or concentrating - A difficulty with basic physical activities - A psychological or emotional condition - A difficulty with pain, breathing, or any other chronic illness or condition.”16 This definition, while seemingly more inclusive due to its narrower scope, is exclusive in the sense that it limits disability status to those who only suffer from one or more of the listed conditions in a long-lasting way. Long-lasting is not defined, which as a result, causes its meaning to be left to individual discretion. This prevents individuals who do experience those difficulties temporarily from an injury from being protected from discrimination.

Scope for Reform in Defining ‘Disability’ in Irish Law The term disability is difficult to define, as it is quite broad in nature. Over time, as the definition of disability changed and became narrower in focus, problems emerged. The lack of consistency associated with the definition and the existence of multiple definitions creates immense ambiguity about its true meaning.17 Additionally, the fluctuations of contexts in which the term disability applies and conditions that it applies to, causes certain individuals to be excluded. Furthermore, there also have been calls for the language of these laws to be reassessed and written in a more sensitive manner to eliminate stigmas associated with specific disabilities.18 Adopting a definition drawing on the CRPD, which Ireland has ratified, could be

16 'Definitions ' (National Disability Authority) <https://nda.ie/disability-overview/definitions/> accessed 17 November 2021.

17 'Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategyfor-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021.

18 Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategy-

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a positive solution to this issue. To promote clarity, increase social inclusion and improve the enforcement of these laws, changes must be made to make the definition of disability more universally applicable.19 III.

Case Study: ‘Invisible’ Disabilities

As has been outlined above, a disability is any condition of the body or mind that impacts or reduces the ability of a person to carry out tasks or functions that a non-disabled person would be able to do. However, such a definition is not all-encompassing, and it will be demonstrated that the realm of disability rights in Ireland extends beyond the ‘traditional’ notion of disability often enshrined legislatively.

‘Invisible’ vs ‘Visible’ Disabilities An ‘invisible’ disability, often described as a ‘hidden’ disability, is when a condition or illness is less apparent, internal or invisible, such that others cannot see the disability as it is happening inside one’s body with little outward symptoms.20 The term ‘invisible disability’ has come to be used as an umbrella term, with such hidden disabilities being capable of classification, as with ‘visible’ disabilities, on a spectrum from moderate to severe.

So-called invisible disabilities are exceedingly common, with awareness of their existence much lower than that of visible disabilities. One in seven Irish citizens has some form of disability according to the 2016 Irish census.21 With 80% of disabilities having hidden impairments, there are approximately 400,000 Irish citizens with a form of invisible disability.22

for-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021.

19 Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategyfor-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021.

20 Invisible Disability Ireland, <https://www.invisibledisabilityireland.com/> accessed 16/11/2021.

21 A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, 7.

22 Invisible Disability Ireland, <https://www.invisibledisabilityireland.com/> accessed 16/11/2021.

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The concept of invisible disabilities can comprise, but is not limited to, learning disabilities, physical disabilities, chronic illnesses, and mental health conditions. These may all present in different inward symptoms, including chronic fatigue, cognitive challenges, or habitual pain.

Invisible Disabilities in Irish Legislation Under the Disability Act 2005, a “disability” in relation to a person is described as meaning “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment”.23 The 2005 Act goes on to define “substantial restriction” as meaning a restriction which; (a) is permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility or in significantly disordered cognitive processes, and (b) gives rise to the need for services to be provided continually to the person whether a child or, if the person is a child, to the need for services to be provided early in life to ameliorate the disability.24 This is a high bar to set on the definition of a disability focusing exclusively on the notion of ‘impairment’ and leaves ambiguity if invisible disabilities can fall under the 2005 Act’s remit.

The concept of the ‘substantial restriction’ may often be difficult to quantify in the context of invisible disabilities.25 Further, many disability rights organisations have criticised the restriction of entitlements contained in the legislation as they can be denied because of lack of resources, and often are not open to judicial review.26 Despite the shortcomings of the Disability Act 2005 in relation to ‘invisible’ disabilities, there has been a legislative shift towards protecting people with disabilities in the context of preventing discrimination and promoting their equal human rights through the Employment Equality Acts (1988-2015) and Equal Status Acts (2000-2018).27 These Acts have established

23

Disability Act 2005, section 2(1).

Disability Act 2005, section 7(2).

25 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 360.

26 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 357.

27 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 357.

24

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that any barrier that prevents a disabled person accessing or using goods and services can amount to discrimination, as well as making discrimination in employment on the basis of disability illegal.28 However, similarly to the Disability Act 2005, there is no specific reference to those with ‘invisible’ disabilities, resulting in degrees of ambiguity for the impairments which fall under this umbrella and potentially the possibility of their exclusion under the Act. Scope for Reform While substantial amounts of research, academic commentary and legislative measures consider those with disabilities as a homogenous group, the law in Ireland needs modernisation and cohesion to better encompass the full range of impairments which exist, particularly those resulting in invisible disabilities which are not explicitly included under legislative protection.

As outlined above, the entitlements granted in the Disability Act 2005 are restricted by resources, meaning that the legislation is in fact not rights-based.29 As such, there exists scope for reform insofar as it is necessary to restructure the Irish legislative framework surrounding disability rights for those with both visible and invisible disability rights to bring their protection to rights-status.

Fundamentally, it is suggested that provision be made for ‘invisible’ disability protection in both the Disability Act 2005 and the Employment Equality and Equal Status Acts, through a broader principled definition rather than discrete and exclusive categories. Such reform may be necessary if the protection and support of individuals with invisible disabilities is to be considered equal to that of those with visible disabilities.

Concluding Remarks on ‘Invisible’ Disabilities The concept of the ‘invisible’ disability is undoubtedly one that needs to be further centred in disability-related discourse in order to ensure the realisation of the rights of all persons with disabilities in Ireland.

28

A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, 18.

29 E Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform’ (2009) 31 DULJ 357, 368.

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Although the exercise of re-evaluation may involve challenging several fundamental truths about Ireland’s approach to disability rights, this should not deter policymakers in the path towards an inclusionary approach to ‘invisible’ disabilities.30 Chapter Conclusion As has been demonstrated through the above discussion, definitions surrounding the term ‘disability’ and its adjacent issues of ‘invisible’ disabilities have proven difficult to determine concretely. Differing models of disability appear, with the so-called social model emerging as the preferable model to be adopted in Irish reform of the area of disability rights to vindicate the rights and intentions of individuals with disabilities.

The definitions of ‘disability’ in Irish law must be broadened to encompass the vast range of individuals that fall under the term’s scope. It is therefore clear that there exists much scope for reform in this area of Irish law, and Irish legislators and policymakers should be encouraged to bring about such reform in a timely manner.

30

A Cusack, ‘Victims of Crime with Intellectual Disabilities and Ireland’s Adversarial Trial: Some Ontological, Procedural and Attitudinal Concerns’ (2017) 68 N Ir Legal Q 433, 449.

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Chapter 2: Inclusion in Public and Political Life Lochlan Liyuan Zhang, Matthew O'Shea, Sinziana Stanciu

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Introduction One fundamental aspect of disability rights is the inclusion of persons with disabilities in public and political life. This chapter shall examine the right to political participation of persons with disabilities in Ireland and elsewhere, with consideration of progress that has been made in lifting legal and administrative barriers to political participation. Then, comparison shall be drawn between Ireland and other European Union (EU) member states, providing analysis on the realisation of these rights for persons with disabilities. This shall be followed with analysis of litigation before the European Court of Human Rights, which highlights how notwithstanding progress in this area - there remains further scope for improvement within this field.

I.

The right to political participation for persons with disabilities

‘The opportunity to be involved in political life is at the heart of what it means to live in a democratic society’. Accordingly, the right to political participation of persons with disabilities, is firmly grounded in international law. It is enshrined in the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), various instruments of the Council of Europe and the primary and secondary legislation of the European Union (EU).31 Within political processes persons with disabilities often form a ‘discrete and insular minority’ whose collective voice is often ignored in public affairs and can experience ‘political powerlessness’, hence there is a strong impetus behind the protection of this right.32 At an EU level, the right of EU citizens, including those with disabilities, to vote in European and municipal elections is contained in Article 20 (2) (b) of the Treaty on the Functioning of the European Union (TFEU), and Articles 39 and 40 of the Charter of Fundamental Rights of the EU.33 Article 21 of the Charter further guarantees that no EU citizen will be deprived of their rights due to discrimination on the basis of disability.34 Article 26 of the Charter also

31

European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

32 Steven Hoge, ‘Cleburne and the Pursuit of Equal Protection for Individuals With Mental Disorders’ [2015] 43 (4) Journal of the American Academy of Psychiatry and the Law Online 416.

33 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

34 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

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recognises the right of persons with disabilities to benefit from measures that protect their independence, social and professional integration, and participation in community life.35 Following the ratification of the CRPD by the EU and the majority of its Member States, their electoral legislation must comply with its provisions. Article 29 thereof sets out the framework for persons with disabilities’ participation in political and public life and stipulates that state parties shall ‘guarantee to persons with disabilities political rights and the opportunity to enjoy them on equal basis with others’.36 Article 29 of the CRPD imposes on state parties both negative obligations, such as the obligation not to place legal limits on the right to vote, and positive obligations, including the duty to ensure reasonable accommodations for persons with disabilities.37 When read in conjunction with the afore-discussed provisions, there is apparently ‘a solid legal backbone informing public authorities at EU as well at national level how the right to political participation of persons with disabilities should be guaranteed in municipal and European Parliament elections’.38 II.

Progress in lifting administrative and legal barriers in political participation for persons with disabilities.

The EU has continually acknowledged and sought to introduce a number of instruments fostering the realisation of political participation of persons with disabilities, The efficacy of these instruments and associated policies in practice ought to be considered, in guaranteeing the voting rights of persons with disabilities in the EU. Practices in this field are highly varied across Member States. Ireland will be illustratively considered in comparison to Italy and Denmark to demonstrate the varied progress that has been made in this field.

A. Ireland

35

Charter of Fundamental Rights of the European Union [2012] C 326/02.

Convention on the Rights of Persons with Disabilities.

37 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

38 European Union Agency for Fundamental Rights, ‘The right to political participation of persons with disabilities’ (FRA, 2014) <https://fra.europa.eu/sites/default/files/fra-2014-political-participation-personsdisabilities-summary-0_en.pdf> accessed 2 January 2021.

36

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Ireland does not restrict the right to vote on the basis of disability.39 The National Disability Authority has noted that the following arrangements are in place to assist electors with certain disabilities in exercising their voting rights:40 ● voting at an alternative polling station if a person’s local station is inaccessible; ● postal voting by electors living at home who cannot go to the polling station due to a physical disability or illness; ● special voting facilities provided in hospitals, nursing homes or similar institutions for residents who cannot go to the polling station due to a physical disability or illness; ● assistance in voting at the polling station by a companion or by the presiding officer for people with a visual impairment, physical disability or literacy difficulty; ● the use of photographs and party political emblems on ballot papers to assist visually impaired people and people with literacy difficulties; and ● the display of a large print copy of the ballot paper in polling stations to further assist visually impaired people and people with literacy difficulties.41 However, in their submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020, the National Disability Authority noted a broad range of necessary improvements in order to realise the right to participate in public and political life for persons with disabilities.42 In particular they noted that at present there are no measures to support persons with disabilities who wish to run as candidates for election,43 and suggest that the costs of services such as Irish Sign 39

European Union Agency for Fundamental Rights ‘Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU Member States’ (Publications Office of the European Union, 26 February 2019).

40 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

41 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

42 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

43 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 <

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Language interpretation or products such as assistive technology be funded by the state in the context of running for election.44 Furthermore, they push for the establishment of a dedicated Electoral Commission for progressing accessibility in electoral processes.45 Against the pre-existing policy and legal framework, the primary activities which the Commission can address are: ● Provide accessible information on voting registration, procedure, and support of independent voter education initiatives; ● Develop strategies for supporting more persons with disabilities to become electoral candidates; ● Further explore a universally designed Electronically Assisted Voting system; ● Assist in extending the period for registering for a postal vote for persons with disabilities; ● Reform the existing criteria for those who are eligible to apply for a postal vote ● Ensure that the Electoral Register and the website of the Electoral Commission meets all standards for online accessibility in line with the EU Web Accessibility Directive; ● Engage with political parties to ensure that all election information produced by parties is accessible for persons with disabilities, particularly those with intellectual or cognitive disabilities; and ● Ensure that inaccessible polling stations are phased out.46

https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

44 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

45 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

46 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

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Additionally, the Assisted Decision-Making (Capacity) Act 2015 presumes that a voter presenting at a polling station has capacity to vote, however, the NDA advises that further exploration of this presumption in the context of exercising the right to vote may be helpful.

While there is no specific code of practice for voting, the Code of Practice on Supporting Decision-Making and Assessing Capacity sets out the guiding principles of the legislation, including the presumption of capacity. Electoral officials need to be made aware of situations where an individual could be registering to vote, or voting, with decision-making supports.

This Code of Practice is currently under review by the Decision Support Service and will be put out to public consultation in due course.47 Therefore, while Ireland has made significant progress within this area, there are further reforms and accommodations which can be introduced to support the right to participation in public and political life for persons with disabilities.

Case-Study: Persons with Sight-Loss The traditional methods of voting for persons with sight loss required them to be reliant on others to exercise their voting rights. Complaints have been made to both the Ombudsman and the Irish Human Rights Commission about the inaccessibility of the voting procedure for persons with sight loss.48 The traditional voting methods available for people with sight loss to vote include, •

bringing trusted companion into the voting booth with them to mark their vote on the ballot paper

•

reviewing the large-print ballot paper available in each polling station to help them to mark their own ballot paper

•

availing of the Presiding Officer for assistance with marking their ballot paper.

Current legislation provides for a companion or the Presiding Officer to mark the ballot paper of a voter who:

47

National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

48 National Disability Authority, ‘Discussion Paper: Accessible Voting’ < https://nda.ie/nda-files/AccessibleVoting1.pdf> accessed 17 January 2021.

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‘satisfies the presiding officer that his sight is so impaired or that he is otherwise so physically incapacitated or that he is unable to read or write to such an extent that he is unable to vote without assistance’.49 However, as reported by Inclusion Ireland, this legislation offers discretion to presiding officers, who may have not training or awareness of how decision-making supports operate in practice, to potentially restrict the voting rights of an obstacle to the people with sight-loss.

‘A presiding officer may refuse a person with a disability access to vote if they require assistance to do so and arrive in the last two hours of voting. This is because the officer may feel it is obstructing other voters from voting. If a presiding officer considers that you do not have the capacity to vote s/he may refuse a person access to vote. There is no law to govern this and no test in place. It is therefore at the discretion of the presiding officer.’50 Moreover, complaints had been made as to the strain and inconvenience of availing of a presiding officer to dictate one’s vote. It amounts to a complete surrender of a secret ballot and lack of privacy.51 There has been discussion as to the lack of provision for a postal vote, as this would allow those with visual impairments to avail of their assistive technology to vote both secretly and efficiently.52 However, there have been some recent improvements in supporting the right of persons with sight loss to vote independently, prompted by the recent case of Sinnott v Minister for the Environment.53 In this case, Mr Sinnott, who has a visual impairment, sought a declaration that the first defendant should provide an arrangement to facilitate the blind to vote by secret ballot. O’Connor J granted this declaration.54 This case led to the introduction of the tactile ballot paper template, which facilitates persons with sight- loss voting secretly and

49

Electoral Act 1992 s.103(1) National Disability Authority, ‘Discussion Paper: Accessible Voting’ < https://nda.ie/nda-files/AccessibleVoting1.pdf> accessed 17 January 2021.

51 Honor Ó Brolcháin, ‘Visually impaired people and voting’ The Irish Times (Dublin, 20 January 2016).

52 National Disability Authority, Submission to the Oireachtas Joint Committee on Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Electoral Reform Bill 2020 < https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_housing_local_government_and_ heritage/submissions/2021/2021-07-28_submission-national-disability-authority-hlgh-285a-2021_en.pdf> accessed 8 January 2022.

53 [2017] IEHC 214.

54 [2017] IEHC 214.

50

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independently.55 While this represents a major development in policy, several technical and administrative problems concerning the tactile ballot paper templates were reported subsequent to their introduction.56 It is imperative that these issues are resolved to fully protect the independent voting rights of persons with sight loss.

B. Denmark At the time of this research, there are no national strategies or action plans concerning disability in Denmark.57 Denmark has enacted a series of repeals and amendments to their electoral legislation in recent years, largely removing prior restrictions on the right to vote of persons with disabilities.58 Within their Local and Regional Government Elections Act (2013) there are provisions for advance voting from home for “voters who on account of disability, poor health or similar are unable to walk into a polling station or voting booth or in any other way are unable to vote in the prescribed way”.59 Ireland’s system of postal voting and accommodations for persons with disabilities at polling stations appears comparatively more expansive.

Following amendments in 2017 to this Act, voters in need of support to cast their vote can demand to be assisted only by a person of their choice, including the physical crossing off of the ballet provided the voter has indicated directly and unambiguously their desired candidates.60 Ireland’s Assisted Decision-Making Capacity Act (2017) provides for similar structures, but has yet to be commenced and as such its comparative efficacy is difficult to assess. Furthermore, the introduction of assistive technology and voting aids in the voting booths in Denmark have enabled some voters to cast their vote without assistance by another person.61 Ireland has comparatively less progress in implanting assistive technologies within their voting processes and procedures.

55

Sorcha Pollak, ‘Tactile ballot templates to facilitate visually impaired in voting’ The Irish times (Dublin, 16 March 2018).

56 Conor Pope, ‘Voting when blind: You’d have to be a Mensa member to figure out how to vote’ The Irish Times (Dublin, 24 May 2019).

57 ‘Denmark’s Disability Inclusiveness Highlights’ (European Disability Forum, 2020) <https://www.edffeph.org/mappinginclusivenessdenmark/> accessed 10 November 2021.

58 János Fiala-Butora, Matthew S. Smith and Michael Ashley Stein, ‘Strobye and Rosenlind v Denmark: a surprising departure from the European Court of Human Rights' disability voting rights jurisprudence’ [2021] 2 European Human Rights Law Review 201.

59 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022.

60 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022.

61 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022.

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C. Italy In Italy, like Ireland, under no circumstances may an individual be deprived of the right to vote.62 Persons with disabilities are entitled to change their polling station location in Italy, even on the day of the election, and the local authorities provide transport for persons with limited mobility to take them to a polling station tailored to their needs.63 Ireland does not have a comparatively successful system of accommodating persons with disabilities at voting stations. Italy provides closed polling stations, for those in care institutions or hospitals, similar to Ireland. Italian legislation ensures that voters who are "physically impaired” or "blind, hand amputee” or with “another impairment of comparable seriousness" can exercise their right to vote with the help of a member of their family or of another voter they can voluntarily choose, provided he/she is registered in an electoral roll of any Italian city.64 The position is comparatively less clear for persons with intellectual disabilities, although it is presumed they can benefit from the certification procedure detailed in the afore-mentioned Italian legislation.

The Irish position will be clearer and preferable following the commencement of the Assisted Decision-Making Capacity Act (2015).

D. The European Union Each of the afore-considered countries are Member States of the European Union, with their varied policies and levels of progress reflecting a relatively fragmented realisation of the right to political participation for persons with disabilities within the EU. The ratification of the CRPD, alongside subsequent alignment national law and practice therewith will further the progressive realisation of this right in a more unified fashion across the EU. The forthcoming EU guide of good electoral practice addressing participation of citizens with disabilities in the electoral process is a welcome development in this regard,65 but to further accelerate this process, the following suggestions for reform are made.

62

European Union Agency for Fundamental Rights ‘Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU Member States’ (Publications Office of the European Union, 26 February 2019).

63 European Economic and Social Committee, ‘Real rights of persons with disabilities to vote in the European Parliament elections’ < https://www.eesc.europa.eu/sites/default/files/files/qe-02-19-153-en-n.pdf> accessed 8 January 2022.

64 Academic Network of European Disability Experts, ‘Indicators on the right to political participation of people with disabilities (Italy)’ (2014).

65 European Union, Union of Equality: Strategy for the rights of Persons with Disabilities 2021 – 2030 (3 March 2021).

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● It is recommended that the EU and its Member States are further cognisant of the varied forms of disability which exist, and consequently ensure that their efforts in these areas ensure flexibility in the provision of disability-specific supports and appropriate accommodations;66 ● It is suggested that EU institutions and Member States should expand current structures for the engagement of people with disabilities, including by forming advisory or consultative bodies, in order to effectively decrease the barriers to political participation. Representatives of persons with disabilities should be full members of these bodies on an equal footing with others, and the necessary supports be provided to guarantee as such.67 ● EU institutions and Member States should consider creating policies to guarantee that candidates and potential candidates for public office are sufficiently supported to participate in the electoral processes.68 Financial and other resources to account for the additional resources that persons with disabilities may require in order to campaign effectively, as well as measures to remove physical and other barriers to access to buildings where political activities are conducted, could be included in such plans.69 Once in office, elected officials with disabilities should be provided with the necessary accommodations to ensure they can continue to effectively conduct their role.

Collectively, it is hoped that these measures will help remedy the inconsistencies across the EU regarding the lifting of administrative and legal barriers to political participation.

III.

Analysing the European Court of Human Rights Decisions in Strøbye v Denmark and Rosenlind v Denmark

66

UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) < https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life> accessed 10 June 2019; European Union, Union of Equality: Strategy for the rights of Persons with Disabilities 2021 – 2030 (3 March 2021).

67 National Disability Authority, ‘Advice Paper on Engagement with Disabled Persons’ Organizations’ (October 2020).

68 UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life accessed 10 June 2019.

69 UNDP, “Participation of persons with disabilities in political and public Life” (UNDP, 10 June 2019) https://www.undp.org/speeches/participation-persons-disabilities-political-and-public-life accessed 10 June 2019.

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One important case in the European context of inclusion in public and political life for persons with disabilities is that of Strøbye v Denmark and Rosenlind v Denmark.70 This joint-ruling demonstrates the ongoing struggles for persons with disabilities in having their voting rights protected under the European Convention of Human Rights.

Background to the Case Both cases concerned individuals from Denmark who have lost their legal capacity due to mental disability.71 In the case of Mr. Strøbye, born 1966, he was declared incompetent in 1984 under sections 2(1)(i) and 46 of the then Act on Legal Competence, which has since (1996) been replaced by the Guardianship Act, and section 46 of the Administration of Justice Act.72 Mr. Rosenlind, born 1987, was similarly declared incompetent in 2009 after being placed under financial guardianship by order of the District Court of Roskilde.73 As a result, both individuals were declared to have lost their legal capacity under Danish law.

As such, neither of them were able to vote in the Danish general election in 2015, due to the limitations placed on those without legal capacity by Section 29 of the Danish Constitution and Section 1 of the Danish Act on Parliamentary Elections.74 In 2016, the EU, through Act No. 391, made an allowance for those without legal capacity to vote in local and EU-level elections, save for national parliamentary elections.75 This would give the Applicants the ability to vote in local elections, but they would remain unable to vote in Danish general elections such as that in 2015. As a result, the applicants instituted proceedings in Denmark, claiming that they had been wrongfully denied their right to vote – relying on Article 3 of Protocol No. 1 of the European Convention on Human Rights.76 A. Litigation in Denmark High Court

70

Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021).

Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 2.

72 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 6.

73 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 8.

74 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 9.

75 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 11.

76 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 12.

71

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In 2017, relying on Danish national law, the High Court rejected their argument.77 The Court set out that the provisions of the Danish Constitution had “continuously been construed by the legislature to mean that persons deprived of their legal capacity under section 2 and section 34 of the former Act on Legal Competence and, since the effective date of the Guardianship Act, under section 6…do not have the right to vote in general elections. This understanding also seems to be supported to a predominant extent in printed legal literature on the subject.”

Supreme Court In 2018, the Danish Supreme Court upheld the decision of the High Court, relying on national law provisions, as well Alajos Kiss v Hungary.78 This case allowed for bona fide infringements of Article 3 of Protocol No.1 rights provided that the restrictions were (1) in pursuit of a legitimate aim, and (2) proportionate in achieving that aim,79 subject to further bespoke jurisprudence relating to voting rights of persons with disabilities. The Supreme Court concluded that, notwithstanding Denmark’s international obligations, it could not deem the Parliamentary Elections Act to be inapplicable.80 B. The Decision of the ECtHR Having exhausted their domestic remedies, the applicants brought their case to the European Court of Human Rights. The ECtHR ruled against the applicants, the substance of the decision was that there had been no violation on the part of Denmark of Article 3 of Protocol No. 1 (the right to free elections) of the ECHR and equally that there had been no violation of Article 14 (prohibition of discrimination) of the same.81 The Court accepted the difficulty in justifying a vote in European but not national parliamentary elections. However, it also found that the legislature in Denmark had acted legitimately in assessing and addressing the situation over time.82While subsequent legislation granted the applicants the right to vote in the Danish national parliamentary elections, their exclusion in 2015 was nonetheless a legally valid act by the Danish Government.83 77

Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021, para 16.

Alajos Kiss v Hungary, App no. 38832 (ECtHR, 20 May 2010).

79 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17.

80 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17.

81 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17.

82 Strøbye and Rosenlind v Denmark, App nos. 25802/18 and 27338/18 (ECtHR, 2 February 2021), para 17.

83 János Fiala-Butora, Matthew S. Smith and Michael Ashley Stein, ‘Strobye and Rosenlind v Denmark: a surprising departure from the European Court of Human Rights' disability voting rights jurisprudence’ [2021] 2 European Human Rights Law Review 201.

78

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C. Reaction to the Decision Notwithstanding the accurate application of national and EU law, many commentators have criticised this case from an inclusivity and human rights perspective. Milan Šveřepa, Director of Inclusion Europe, has reflected on the decision, describing the ECtHR’s decision as making allowances for voter suppression.84 Furthermore, the Natalia Suárez of the European Disability Forum has described the decision as amounting to the Court “favouring a legal scheme that discriminates against and excludes persons with disabilities as a reasonable restriction to the right to vote under Article 3 of Protocol 1 of the European Convention of Human Rights”.85 In essence, the wide discretion afforded to nations by the ECtHR on restrictions to the right to vote has been criticised as overly exclusive and unjust. They concluded by calling on the ECtHR to assume an “active lead in the promotion and protection of the rights of persons with disabilities to build more inclusive and democratic societies for all”.86 The issue of voting restrictions for persons with disabilities is clearly still one of contention for the ECtHR, which they continue to grapple with as evidenced in subsequent decisions such as Caamano Valle v Spain.87 IV.

Conclusion

The right to political participation of persons with disabilities is strongly enshrined in international human rights instruments, reflecting the imperative behind guaranteeing the political agency of persons with disabilities. Varied levels of progress have been made in lifting the legal and administrative barriers to political participation for persons with disabilities. The core issues which remain to be addressed relate primarily to the need for accessible communication of voting information and procedure, the accessibility of voting procedures and

84

Milan Šveřepa, ‘Voter Suppression? That’s fine by use says European Court of Human Rights’ (Inclusion Europe, 13 September 2021) < https://www.inclusion-europe.eu/voter-suppression-european-court-of-humanrights/> accessed 09 November 2021.

85 Natalia Suárez, ‘The European Court of Human Rights fails to protect the right to vote of persons with disabilities’ (European Disability Forum, 11 February 2021) < https://www.edf-feph.org/the-european-court-ofhuman-rights-fails-to-protect-the-rights-to-vote-of-persons-with-disabilities/> accessed 09 November 2021.

86 Natalia Suárez, ‘The European Court of Human Rights fails to protect the right to vote of persons with disabilities’ (European Disability Forum, 11 February 2021) < https://www.edf-feph.org/the-european-court-ofhuman-rights-fails-to-protect-the-rights-to-vote-of-persons-with-disabilities/> accessed 09 November 2021.

87 App no 43564/17 (ECtHR, 11 May 2021).

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facilities themselves, and the provision of appropriate and specific supports for persons with disabilities seeking to exercise their right to political participation. Furthermore, issues relating to the disenfranchisement of persons with disabilities remain relevant, as the recent decisions of the ECtHR demonstrate. While these rights are being progressively realised, there remains significant progress to be made within this area, as the above research demonstrates.

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Chapter 3: Rights of Persons with Disabilities under National and International Legal Regimes Eoin Jackson, Sean Mulvaney, Dearbhla O'Regan

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Introduction This section will address the national, European and international frameworks that govern the rights of persons with disabilities. Part I will examine the European Court of Human Rights (ECHR) and its protection of persons with disabilities. Part II will outline the protections guaranteed under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Part III will provide a critical commentary on the evolution of Ireland's national legal and policy framework in response to the CRPD. I. The European Convention on Human Rights and The Protection of Persons with Disabilities The Council of Europe has never provided any specific instrument relating to the protection of the rights of persons with disabilities. Instead, it relies on a combination of policy initiatives, such as the Strategy on the Rights of Persons with Disabilities 2017–2023,88 and the existing rights framework conceptualized through the Convention. The sole explicit reference to persons with disabilities is found in a brief reference in Article 5 of the Convention. This article places a ban on the deprivation of a person's liberties, with one exception proving for the ‘lawful detention of persons of unsound mind’.89 The relatively sparse language in regards to persons with disabilities can be largely attributed to the ECHR’s historical context, at the time of its foundation in the 1950s deficient understandings of disability tended to prevail, and ‘disabled persons were not considered autonomous rights holders at all’ not being conducive to widespread legal recognition.90 However, the ECHR has been willing to extrapolate new principles through its case-law and draw on sources, such as the CRPD, to interpret the European Convention on Human Rights (“The Convention”) in a manner consistent with more robust protection for persons with disabilities.

The primary protection for persons with disabilities can be found under Article 14 of the Convention. 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

88

Council of Europe, (2017) ‘Strategy on the Rights of Persons with Disabilities 2017–2023’.

Article 5, European Convention on Human Rights.

90 Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’ (2018) 18 (3) Human Rights Law Review 517.

89

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national minority, property, birth or other status”.91 The article itself does not directly refer to persons with disabilities. However, a number of cases have confirmed that its protections extend to those with disabilities.92 For example, in Cam v Turkey,93 a school was held to be in breach of Article 14 after refusing to admit a blind woman, despite the applicant having successfully passed the relevant examinations. The failure to consider reasonable accommodations for the women's disability placed the school in violation of Article 14.94 Thus the prohibition against discrimination under the Convention can be valuable to the litigation strategies of persons with disabilities.95 More broadly, a number of other provisions within the Convention have been utilized to protect people with disabilities. This includes the right to life under Article 2,96 and the prohibition on torture and inhumane treatment in Article 3.97 Of particular interest is the approach of the ECtHR to the right to education under Article 2 of Protocol No. 1. The Court has previously found that States ought to provide more resources for the specialised education of persons with disabilities.98 Similarly the Court has generally favoured cases that argue in favour of specialised education for persons with disabilities, as opposed to an inclusive education within the mainstream school system. In Dupin v France for example, the Court rejected the claim that a refusal to admit a boy with disabilities into a mainstream school was a violation of the Protocol.99 This was partially on the grounds that the child was receiving specialised education which, on balance, seemed appropriate in light of the boy's disabilities.100 Thus, there is a broad array of articles from which the Court has identified protections for persons with disabilities, though these remain constrained within the traditional boundaries of judicial interpretation.101

91

Article 14, European Convention on Human Rights.

Rory O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-discrimination in the ECHR’ (2009) 29 Legal Studies: The Journal of the Society of Legal Scholars 211.

93 Application No 51500/08, Merits and Just Satisfaction 23 February 2016.

94 Application No 51500/08, Merits and Just Satisfaction 23 February 2016.

95 Janneke Gerards, ‘The Discrimination Grounds of Article 14 of the European Convention on Human Rights’ (2013) 13 Human Rights Law Review 99.

96 Jasinskis v. Latvia (2010) 45744/08.

97 Vincent v France (2006) 6253/03.

98 Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’ (2018) 18 (3) Human Rights Law Review 51;. Gherghina v. Romania (2015) 42219/07; Sanlısoy v.

Turkey (2016) 77023/12.

99 (2019) 2282/17.

100 Dupin v France (2019) 2282/17.

101 Shai Dothan, ‘Judicial Deference Allows European Consensus to Emerge ‘ (2018) 18(2) Chicago Journal of International Law 393.

92

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The ECHR has proven disappointing when it comes to the protections of persons with cognitive disabilities, particularly within the context of voting rights. In Alajos Kiss v. Hungary a Convention violation was identified where a person under a partial guardianship was denied the right to vote.102 However, a number of other cases have refused to recognise a violation where persons with intellectual disabilities are disenfranchised, Most recently, the case of Caamaño Valle v. Spain,103 found that there had been no violation of the prohibition against discrimination or the specialised jurisprudence concerning Article 3 or Protocol No. 1, where the applicant's daughter had been denied the right to vote. The Court regarded that “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” as a legitimate aim in the context of restricting voting rights, and chose to defer to Member States within this area.

On balance, the Court has been highly restrained within this area, neglecting to adopt a more proactive position such as that within the CRPD. One particular area of controversy has been the approach that the ECHR should take to persons with disabilities who may seek to terminate their lives. This issue arose in the case of Pretty v UK.104 Here, the Court was asked to assess whether it was a violation of the right to privacy, under Article 8, for the UK to have refused to commit to no prosecution of anyone who assisted a terminally ill woman with terminating her life. The Court noted that Article 8 did not exclude the applicant from the right to end her life.105 However, in this case no such violation had occurred, on the basis that the Member State was best placed to assess the vulnerability of the individual and in turn was entitled to a general prohibition on assisted suicide for fear of abuse of an alternate system.106 Thus, while sympathetic the Court was reluctant to encroach on the State’s assessment of best practice when it comes to assisted suicide.107 Thus, the ECHR offers a relatively weak framework through which persons with disabilities rights are protected. While cases of direct discrimination are often successful, the piece-meal

102

Johan Lievens, ‘DUPIN V. FRANCE: THE ECTHR GOING OLD SCHOOL IN ITS APPRAISAL OF INCLUSIVE EDUCATION?’ (2019, The Strasbourg Observer) <https://strasbourgobservers.com/2019/02/11/dupin-v-france-the-ecthr-going-old-school-in-its-appraisal-ofinclusive-education/> accessed 30/10/2021.

103 (2021) 43564/17.

104 Pretty v UK (2021) 43564/17.

105 (2002) 2346/02.

106 M.A. Sanderson, ‘Pretty v. United Kingdom’ (2017) 96(4) American Journal of International Law 943.

107 Arend Cornelis Hendriks, ‘End-of-life decisions. Recent jurisprudence of the European Court of Human Rights’ (2018) ERA Forum.

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approach of the Court to interpreting the Convention to extend to persons with disabilities despite their initial exclusion has been relatively ineffective. This leads to significant deference being granted to Member States, with the ECHR protection operating in a highly limited capacity.

II. United Nations Convention on the Rights of Persons with Disabilities The Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty of the United Nations which aims to protect the rights and dignity of persons with disabilities. It was the first comprehensive human rights treaty of the 21st century as well as the fastest negotiated one, from 2002 to 2006.108 It was later adopted on the 13th of December 2006 before becoming effective on the 3rd of May 2008. Jamaica was the first country to ratify the CRPD and following Ecuador’s ratification of the Convention, there was a sufficient number of parties for the Convention to enter into force. To date, it has 163 signatories, and 182 States are parties to the Convention.109 The Convention received the highest number of opening-day signatures of any document of its kind. It has been described as “the last of the great human rights Conventions”, as well as “utopian” in nature110. Following its introduction, the general response to the CRPD was largely positive. The then-Secretary-General of the UN, Ban Ki-Moon, declared it “a powerful tool to eradicate the obstacles faced by persons with disabilities”.111 John Flanagan, Officerin-Charge of the UN Mine Action Service at the time of , described it as being particularly relevant for survivors of accidents with landmines and other explosives and asserted that such victims are “entitled to all the same human rights as every other member of their societies, and this new Convention will help level the playing field in terms of access to services and 108

United Nations Department of Economic and Social Affairs, ‘10th anniversary of the adoption of Convention on the Rights of Persons with Disabilities’ (2016) <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the10th-anniversary-of-the-adoption-of-convention-on-the-rights-of-persons-with-disabilities-crpd-crpd-10.html> accessed on 13th November 2021.

109 United Nations Treaty Collection Chapter IV, Convention on the Rights of Persons with Disabilities <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en> accessed on 13th November 2021.

110 Jan Grue, ‘The high cost of living in a disabling world’ (2021) <https://www.theguardian.com/society/2021/nov/04/the-high-cost-of-living-in-a-disabling-world> accessed 13th November 2021.

111 UN News, ‘Landmark UN treaty on rights of persons with disabilities enters into force’ (2008) <https://news.un.org/en/story/2008/05/258222-landmark-un-treaty-rights-persons-disabilities-enters-force> accessed 13th November 2021.

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opportunities”112. However, the CRPD has faced criticism as well, especially in America with various Republican Senators and interest groups claiming that the Convention reduces State sovereignty and gives the UN legal jurisdiction over national law.113 The CRPD was in the making for decades before its introduction. Various documents calling for action were issued such as the 1971 Declaration on the Rights of Mentally R*tarded Persons and the 1975 Declaration of the Rights of Disabled Persons. The UN also declared 3rd December to be the International Day of Persons with Disabilities in 1992.114 The Convention provides for the protection and promotion of the human rights of people with disabilities, including ending discrimination on the grounds of disability, enabling persons with disabilities to live independently, ensuring persons with disabilities have reasonable access to an inclusive education system and protecting persons with disabilities from all forms of exploitation, violence and abuse. One of the main goals of the Convention is to change attitudes, perspectives and approaches towards persons with disabilities. It embodies the idea of viewing persons with disabilities as individuals with rights who can make important decisions and choices themselves for their lives based on their free and informed consent and be active members of society, rather than ‘objects’ of charity, and it supports the translation of this ambition into national legislation.115 The CPRD does not necessarily create any new rights, but seeks to ensure that the persons with disabilities can effectively enjoy existing rights. The Convention also adopts a broad categorization of persons with disabilities to ensure that all persons it intends to target are covered and protected under its scope.116 As well as being a human rights instrument, it also acts as a social development mechanism which aims to bring about significant social change in conjunction with legal change. The Convention expressly recognises that “disability results from the interaction between persons 112

PBS, ‘What prevents the U.S. from signing the U.N. disabilities treaty?’ (2014) <https://www.pbs.org/newshour/show/prevents-u-s-signing-u-n-disabilities-treaty> accessed on 13th November 2021.

113 PBS, ‘What prevents the U.S. from signing the U.N. disabilities treaty?’ (2014) <https://www.pbs.org/newshour/show/prevents-u-s-signing-u-n-disabilities-treaty> accessed on 13th November 2021.

114 United Nations General Assembly Resolution 47/3 (1992).

115 United Nations Department of Economic and Social Affairs, ‘Convention on the Rights of Persons with Disabilities’ <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-withdisabilities.html> accessed on 13th November 2021.

116 United Nations Department of Economic and Social Affairs, ‘Convention on the Rights of Persons with Disabilities’ <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-withdisabilities.html> accessed on 13th November 2021.

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with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”,117 thereby locating disability within the failure of an environment to accommodate persons with impairments rather than as the product of the person’s impairment. Some of its most noteworthy provisions include Article 4 which provides that countries that join in the Convention must engage to develop and implement policies, laws and administrative measures for securing the rights recognized in the Convention and abolish any laws, regulations, customs and practices that constitute discrimination against persons with disabilities. Articles 29 and 30 deal with participation in public life and cultural life respectively for those with disabilities. Article 8 which states that ratifying countries is to combat stereotypes and prejudices and promote awareness of the capabilities of persons with disabilities, expressly outlining that this is because a change of perceptions is essential to improving the lives of persons with disabilities. Article 10 provides that signatory States guarantee that persons with disabilities enjoy their inherent right to life on an equal basis with others, with Article 6 specifically addressing ensuring the equal rights and advancement of women and girls with disabilities. Additionally, Article 27 recognises the right of persons with disabilities to work, including the right to the opportunity to gain a living by work in a labour market and work environment that is open, inclusive and accessible to them.

The Convention also established the Committee on the Rights of Persons with Disabilities, which monitors the implementation of the CRPD. This was created by Article 34 and consists of 18 independent experts, all of whom serve in their individual capacity and not as government representatives.118 They are elected from a list of persons at the Conference of the State Parties for a four year term with a possibility of being re-elected once. The Conference is attended by over 1000 participants from governments, UN Agencies, and NGOs such as the Disabled Persons Organisations and the National Human Rights Institutes.119 All States parties have to submit regular reports on their actions fulfilling their obligations under the Convention, which the Committee reviews and then makes suggestions and recommendations on. States must

117

Convention on the Rights of Persons with Disabilities, Preamble, Section (e).

United Nations Human Rights Office of the High Commissioner, ‘Committee on the Rights of Persons with Disabilities’ <https://www.ohchr.org/EN/HRBodies/CRPD/Pages/QuestionsAnswers.aspx> accessed on 13th November 2021.

119 United Nations Department of Economic and Social Affairs, ‘10th anniversary of the adoption of Convention on the Rights of Persons with Disabilities’ (2016) <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the10th-anniversary-of-the-adoption-of-convention-on-the-rights-of-persons-with-disabilities-crpd-crpd-10.html> accessed on 13th November 2021.

118

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report initially within two years of ratifying the Convention and, following on from that, every four years.

One of the Committee’s most noteworthy reviews in recent years was in 2017, where the UK’s submission resulted in criticism from the Committee due to the UK government’s cuts to social security and other support for persons with disabilities.120 The Committee informed them to make more than 80 improvements to the ways its laws and policies affect the rights of persons with disabilities, in light of a number of the CRPD’s Articles. 121. Furthermore, there is a sideagreement to the Convention called the Optional Protocol to the Convention on the Rights of Persons with Disabilities which grants signatory States the powers to recognise the competence of the Committee to consider complaints.122 It entered into force with the Convention and has 94 signatories.

The acceptance and fulfilment of Convention obligations has varied worldwide with, for example, El Salvador accepting the Convention to the extent that it is compatible with its Constitution and France considering the Convention not to be legally binding at all123. State parties to the CRPD have pursued different legal and policy reactions thereto, and the development of Ireland’s legal and policy framework in response to the CRPD will be examined in Part III.

III. A Critical Commentary on the Evolution of Ireland’s Legal and Policy Framework in Response to the UNCRPD Ireland’s legal and policy framework has significantly evolved in response to the CRPD, which was ratified by the State in March 2018.124 This evolution has resulted in both legislative implementations, including the Assisted Decision Making Act, 2015 and the Irish Sign 120

John Pring, ‘Disabled people urged to provide evidence for UN on government’s record on rights’ (2021) <https://www.disabilitynewsservice.com/disabled-people-urged-to-provide-evidence-for-un-on-governmentsrecord-on-rights/> accessed on 13th November 2021.

121 Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (2017).

122 Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1.

123 United Nations Treaty Collection Chapter IV, Convention on the Rights of Persons with Disabilities <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en> accessed on 13th November 2021.

124 The Union of Students in Ireland, Written Submission on Public Consultation on the Draft Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://usi.ie/wp-content/uploads/2021/06/USI-SUBM-Draft-Initial-State-Report-under-the-UNCRPD.docx> accessed 6 November 2021.

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Language Act, 2017 and the introduction of two strategies to coordinate government policy, namely the Comprehensive Employment Strategy for People with Disabilities 2015-2024 and the National Disability Inclusion Strategy 2017-2021.125 The Assisted Decision Making (Capacity) Act, 2015 The introduction of the Assisted Decision Making (Capacity) Act (ADMC), 2015 represents a significant evolution of Ireland’s national policy framework in response to the UNCRPD. Its provisions represent an evolution of Irish policy which encourages compliance with several articles of the UNCRPD, including Article 12 (Equal Recognition before the Law), Article 17 (Protecting the Integrity of the Person), and Article 23 (Respect for the Home and the Family).126 In relation to Article 12, the ADMC provides for the appointment of legally recognised decision-making supporters to support persons with capacity issues, allowing them to maximise their decision-making powers.127 The ADMC protects and promotes individual autonomy by taking a time- and issue-specific approach which allows for fluctuations in decision-making capacity and attempts to reflect the person’s will and preferences where possible.128 The ADMC also provides a framework based on the legal principle that a person has a right to consent to and refuse medical treatment. The ADMC presumes that this generally applies, including when a person has a reduced decision-making capacity.129 By protecting the integrity of persons with disabilities, the enactment of these provisions indicates that Ireland’s national policy is moving towards a fulfilment of Article 17.

The existence of Ireland’s “ward of court” system, based on the Lunacy Regulation’s (Ireland) Act 1871 and the Marriage of Lunatic Acts 1811 had been identified as a major barrier to

125

UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020).

126 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020).

127 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (145).

128 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (146).

129 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (215).

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Ireland’s compliance with the UNCRPD.130 The ADMC represents a significant evolution of policy in this area: it provides for the abolishment of wardship and institutes a phased transition from adult wardship to new decision-making support arrangements,131 and repeals the Marriage of Lunatic Acts 1811, which had declared any marriage entered into by a ward of the court automatically invalid.132 This moves towards a fulfilment of Article 12 and Article 23 of the UNCRPD. The provisions of the ADMC represent an evolution of Ireland’s national policy towards a policy framework that is compliant with the UNCRPD. However, the provisions of the ADMC, at time of writing, have not substantially commenced.133 This is extremely problematic, as due to this failure, for example, adults continue to be made wards of the Court.134 A full commencement of the ADMC is essential for Ireland’s policy framework to evolve to become fully compliant with the UNCRPD.135 The ADMC is explored further in subsequent sections of this research project.

Irish Sign Language Act, 2017 Similarly, the Irish Sign Language Act (ISLA), 2017 represents an evolution of Irish national policy by allowing the State to increase its compliance with Articles 13 (Access to Justice) and 21 (Freedom of Expression and Opinion, and Access to Information) in particular.

Under the ISLA, the courts have a duty to ensure that any person who cannot understand spoken English or Irish but is competent in Irish Sign Language (ISL) is accommodated in appearing or giving evidence in court. By placing a duty on the courts to accommodate persons with

130

Suzanne Doyle and Eilionoir Flynn, 'Ireland's Ratification Of The UN Convention On The Rights Of Persons With Disabilities: Challenges And Opportunities' (2013) 41 British Journal of Learning Disabilities.

131 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 147.

132 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) (273).

133 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

134 Law Society of Ireland, Submission on the Draft Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.lawsociety.ie/globalassets/documents/submissions/2021-submission-uncrpd-report.pdf> accessed 6 November 2021.

135 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

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disabilities, access to justice for persons with disabilities is increased – for example, the first deaf juror served on a jury in 2020, accompanied by an ISL translator.136 The ISLA recognises Irish Sign Language as an official language of Ireland. This requires public bodies to prepare and implement ISL Action Plans and to provide free ISL interpretation for those who require it to avail of the service offered by the body.137 The ISLA is additionally further explored subsequently within this research project. This evolution of Irish national policy moves the State towards becoming compliant with Article 21 of the UNCRPD, by increasing the access that people with disabilities have to information.

Additional Legislative Implementations Section 42 of the Irish Human Rights and Equality Commission Act, 2014 imposed a Public Sector Equality and Human Rights Duty on public bodies. This places a statutory obligation upon public bodies to promote equality and eliminate discrimination, through a three-step process: when doing strategic planning, the bodies must carry out an assessment of the relevant equality issues, they must subsequently develop policies and plans to address these issues, and finally, they must report annually on their progress in eliminating discrimination.138 Under Section 42(27) of the Act, the Irish Human Rights and Equality Commission (IHREC) is invested with the power to hold public bodies accountable in relation to their progress on promoting equality and eliminating discrimination.139 This legislative implementation represents an evolution of Ireland’s national policy and moves the State towards becoming compliant with Article 5 of the UNCRPD, which promotes equality and non-discrimination.

Failure to Evolve However, there are also areas where Ireland’s legal and policy frameworks have failed to evolve in response to the State’s obligations under the UNCRPD.

136 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 262.

137 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 263.

138 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 27.

139 UN Committee on the Rights of Persons with Disabilities, ‘Initial Report under the Convention on the Rights of Persons with Disabilities – Ireland’ (December 2020) 27.

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For example, Article 16 of the UNCRPD requires the State to put in place measures to protect women with disabilities from violence.140 Despite evidence that women with disabilities are at a higher risk of experiencing violence within relationships, Ireland has failed to put in place a framework for gathering systematic data based on the experience of disabled women in relation to gender based violence.141 This, combined with the lack of publicly funded awareness campaigns on the issue of violence against disabled women, represents a failure of Irish policy in relation to the UNCRPD and prevents Ireland from becoming fully compliant with the UNCRPD.142 Conclusion Since ratification of the UNCRPD, Ireland’s legal and policy framework has evolved significantly, enabling the State to increase its compliance with many of the Articles included in the Convention. However, in other areas, including violence against women with disabilities, further evolution of policy is needed to ensure that Ireland fulfils its obligations under the UNCRPD.

140

National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

141 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

142 National Women’s Council, Submission to the Initial State Report under the United Nations Convention on the Rights of Persons with Disabilities (2021) <https://www.nwci.ie/images/uploads/NWC_Initial_State_Report_under_the_UN_CRPD_2021.pdf> accessed 6 November 2021.

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Chapter 4: European Union Law Abigayle Pigott, Teresa Schell

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Introduction There are multiple identifiable needs and issues which concern persons with disabilities on a global scale. Throughout Europe it is estimated that 80 million people are living with disabilities.143 Therefore, the necessity of international co-operation to create a universal framework to uphold and enforce rights obligations towards persons with disabilities cannot be understated. The United Nations Convention on the Rights of Persons with Disabilities attempts to realise these rights and places a particular emphasis on tackling the issues of nondiscrimination, under Article 5, and encouraging improved accessibility, under Article 9. These will allow affected individuals to enjoy their human rights at the fullest capacity. The European Union and many of its member states are party to this convention. As a result, they are committed to implementing a legislative framework which will create measures which will limit and eradicate barriers faced by people with disabilities across the European Union.

This chapter will examine two recent directives of the European Union which attempt to tackle issues related to persons with disabilities and their subsequent implementation and impact on people living with disabilities in Ireland.

I.

The European Accessibility Act

Overview of the European Accessibility Act Following three years of legislative and interinstitutional negotiations, the European Accessibility Act was adopted by the European Union on the 9th of April 2019. The Act attempts to regulate and set accessibility requirements to assist persons with disabilities in the private sector with regards to products and services.144 The framework of the EAA is intended to assist the realisation of the CRPD, which as noted in the Act is binding and therefore it is necessary to ensure its development by adopting ‘concrete, enforceable and timebound benchmarks for monitoring the gradual implementation of accessibility.’145 The EAA is structured to harmonise with prior successful directives regarding 143

European Commission, 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021.

144 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

145 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

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accessibility and rights for persons with disabilities such as Directive 2014/33/EU of the European Parliament and of the Council which concerns lifts and Regulation (EC) No 661/2009 of the European Parliament and of the Council which addresses transport. It in no way amends current accessibility legislation provided by the European Union.

The European Accessibility Act largely focuses on products and services related to operating systems, computers, e-commerce, smartphones, passenger transport and audio-visual media services.146 The need for this legislation was highlighted in the May 2015 communication from the Commission on a single digital market strategy for Europe which emphasised the exponential growth of digital services and the need to regulate them in line with fair competition laws and accessibility rights.147 The methods of imposition in the EAA do not attempt to prescribe high levels of technical requirements onto the business and service providers encompassed in the directive but instead delegate certain obligations for compliance to ensure accessibility to the digital market for all people throughout Europe.148 Member States of the European Union are required to transpose the EAA into their domestic legislation and administrative procedures by June 28th, 2022, with full force of the Act to be realised by June 28th, 2025. The overall requirements outlined in the Act attempts to incorporate a multitude of both physical and cognitive disabilities. Minimal requirements and recommendations for improved accessibility are outlined in the EAA. These include, ● Ensuring that information and introduction material is available in more than one sensory channel and in comprehensible language. ● Ensuring that user interfaces can convey information in multiple ways, particularly in regard to the use of audio or images. ● Ensuring that e-commerce services are able to provide operable and robust methods for identification, payment and security systems which encourage accessibility and use for persons with disabilities.149 146

‘European Accessibility Act’ (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021.

147 Commission, ‘Digital Single Market Strategy for Europe’ (Communication) COM (2015) 1092.

148 ‘Summary of Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services’, (Eur-LEX, 11 October 2019) <https://eur-lex.europa.eu/legalcontent/EN/LSU/?uri=CELEX:32019L0882> accessed 10 January 2021.

149 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’

(Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021.

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In conjunction with the attempts to create homogenous regulations for accessibility in the EU Digital Market, the EAA also established safeguards which ensure that the Act does not over impose itself onto the market suppliers.150 This is covered in Section 64, which states; ‘For reasons of proportionality, accessibility requirements should only apply to the extent that they do not impose a disproportionate burden on the economic operator concerned, or to the extent that they do not require a significant change in the products and services which would result in their fundamental alteration in the light of this Directive. Control mechanisms should nevertheless be in place in order to verify entitlement to exceptions to the applicability of accessibility requirements.’151 The Act also provides a number of exemptions for the directive. These include archival websites, third party content out of the control of the providers, office files and pre-recorded formats published before 2025 and reproduced heritage items. Additionally, the obligations set out in the Act are intended to apply to both private and public economic operators. However, websites for schools and nurseries also enjoy exemptions from the EAA. 152 Intended Beneficiaries of the European Accessibility Act There are two explicitly intended beneficiaries outlined in the European Accessibility Act; persons with disabilities and business, particularly small and medium-sized enterprises (SME’s).

Increased accessibility is beneficial to all EU citizens, however it is of particular benefit to persons with disabilities such as cognitive disabilities, impaired vision, deafness, and motor difficulties. The European Accessibility Act is intended to satisfy the obligation of accessibility provided for by Article 9 of the UN CRPD. Section 47 of the directive states;

150 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’

(Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021.

151 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

152 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’

(Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021.

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‘The four principles of accessibility of websites and mobile applications … are: perceivability, meaning that information and user interface components must be presentable to users in ways they can perceive; operability, meaning that user interface components and navigation must be operable; understandability, meaning that information and the operation of the user interface must be understandable; and robustness, meaning that content must be robust enough to be interpreted reliably by a wide variety of user agents, including assistive technologies…’153 By establishing accessibility requirements for all products and services which fall within the scope of the EAA, it is hoped that the day-to-day lives of EU citizens with disabilities will be improved as computers, operating systems, ATM’s, passenger transport and public body websites become easier to navigate.154 The European Accessibility Act aims to assist the free movement of goods and services across the EU by removing the barriers of accessibility requirements which vary from EU State to State. The directive specifically notes the principle of ‘think small first’ and recognizes the importance of SMEs across Europe. Therefore, the requirements and safeguard are created to be beneficial to their functioning, while also supporting the public benefit.155 Moreover, the EAA does not place requirements on micro-enterprises, due to the serious burden it could potentially place on their resources.156 The removal of barriers through the implementation of accessibility requirements also offers significant economic incentives for businesses across the EU as they experience reduced barriers and increased access to markets in other EU countries. It is estimated in 2020 that divergent accessibility requirements see the market costs for businesses and Member States at

153 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

154 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021.

155 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

156 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

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around 20 billion euro.157 The introduction of the EAA is estimated to reduce this by 45-50%, with additional production costs assumed to be significantly lower.158 Overall, the estimated benefit for SMEs and other EU Businesses is that by introducing accessibility requirements across all member states, there is a freer movement of products and services while improving competition and effectiveness across the EU and ceasing fragmentation of the market.159

Potential Shortcomings The EAA has been largely hailed as a large step forward in encouraging and improving accessibility on a large scale across the European Union. However, charities, non-profits, and watchdog groups for the rights of people with disabilities have noted several disparities or flaws in the legislation. The Human European Consultancy and Age Platform have noted in particular the EAA’s lack of regulation and imposition of requirements in the areas of healthcare, education, transport, and the accessibility of buildings.160

Implementation in Ireland As aforementioned, the European Accessibility Act is expected to be transposed into the national legislative framework of all member states, including Ireland, by the 28th of June 2022, with full enforcement of the EAA in June 2025.

In accordance with this adjustment period, requirements and procedures have been established within the EAA to ensure full compliance. On a national level, Member States are expected to withdraw any products which fail to comply with the accessibility regulations in place.161 Articles 20 and 22 of the Act place punitive sanctions onto products and services which fail to comply.

157

'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021).

158 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021.

159 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

160 Janina Arsenjeva, ‘Annotated Review of European Law and Policy with Reference to Disability’ (January 2019) Academic Network of European Disability <https://www.disability-europe.net/theme/eu-law-and-policy> accessed 21 November 2021.

161 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

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This element of the EAA ensures that both Member States and companies will comply with the regulations established to ensure equal minimal accessibility regulation and standards across the EU and within Ireland.

II.

Employment Equality Directive

Overview of the Directive and its Implementation On the 27th of November 2000, the Council of the European Union adopted Directive 2000/78/EC. This directive established a general framework for equal treatment in employment and occupation, known as the Employment Equality Directive.162 The directive prohibits discrimination at the workplace on grounds of religion and belief, age, disability and sexual orientation.163 It explicitly addresses employment and occupation as the Commission regards these as key elements in guaranteeing equal opportunities for all, and as greatly contributing to the full participation of all citizens in economic, cultural and social life. 164 The Directive was adopted to allow everyone to realise their full potential.165 Before the Employment Equality Directive the rights of people with disabilities were only addressed in Recommendation 86/379/EEC of 24 July 1986166 and a Resolution on equal employment opportunities for people with disabilities.167 To close that gap, the new Directive intends to end any direct or indirect discrimination, based on religion or belief, disability, age or sexual orientation.168 Concerning persons with disabilities the Directive expressively stresses the importance to provide measures to accommodate the needs of persons with disabilities in the workplace in order to combat discrimination on the grounds of disability.169

162 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

163 European Commission, ‘The Employment Equality Directive’ Memo (2018) 08/ 69.

164 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, reason 9.

165 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, reason 9.

166 Council Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community [1986] OJ L225/43.

167 Council Resolution 186/02 of 17 June 1999 on equal employment opportunities for people with disabilities [1999] OJ C186/3.

168 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

169 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

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The new directive was supposed to be transposed into national law by 1 January 2007 latest for all Member States.170 All Member States have fulfilled that obligation and transposed the Directive into national law.171 As the European legislation only sets out minimum requirements, Member States were free to provide a higher level of protection against discrimination in their national legislation.172 The European Commission considers on a regular basis whether the national laws of the Member States comply with the standards set out in the Directive.173 To enable that, Article 19 of the Directive provides that Member States must report to the Commission. Moreover, the European Parliament published a report on the implementation of the Directive in February 2021.174 In this report they evaluated the factual situation for persons with disabilities and found that they are still largely discriminated against at work, as the Member States have poorly enforced the Directive. 175 They therefore filed a resolution expressing the need for a revision of the Employment Equality Directive.176

Important Provisions Concerning Persons with Disabilities in the Directive The Directive includes some important provisions concerning persons with disabilities. After stating its purpose in Article 1, to lay down a general framework for combating discrimination as regards employment and occupation, the Directive explicitly states its goal to put into effect the principle of equal treatment in Member States. The Directive then defines the principle of equal treatment – meaning the absence of indirect and direct discrimination – and provides a definition of direct and indirect discrimination in its Article 2.

170

European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

171 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

172 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

173 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

174 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021.

175 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021.

176 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC, 19 <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021.

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One especially key provision for persons with disabilities is Article 5, which states that reasonable accommodation for persons with disabilities shall be provided. It further explains that, ‘this means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. ’177 A similarly important provision is Article 7, which states that ‘With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.’178 Therefore, the positive actions of the Member States to ensure full equality in practice are not prohibited under this directive, even though they distinguish between persons with or without disabilities.

Problems Arising While the aim of the directive is unquestionably well-meaning, difficulties have arisen in its transposition and application.

Definition of Discrimination Firstly, and potentially most significantly, there is no precise definition of discrimination in the directive. Article 2 defines four types of discrimination, direct and indirect discrimination,

177

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art. 5.

178 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 7(2).

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harassment, and the instruction to discriminate, but they are quite vague. This means that the Member States are relatively free in their chosen definitions for national law.

In their evaluation of the implementation of the Directive in 2008 the Commission stated that several problems had occurred. Some Member States did not include a definition of discrimination in their national law at all.179 Other definitions of discrimination were found to be incorrect, especially regarding indirect discrimination as they do not cover future or possible events.180 Additionally, definitions of harassment and the instruction to discriminate were found to be too limited,181 as they do not cover all their possible forms.

Scope of the Directive The Commission also found that some problems arose regarding the scope of the antidiscrimination legislation and exceptions to equal treatment. Article 3 of the Directive states that the directive shall apply to all persons, both working in public and private sectors, including public bodies.182 However, in practice the public sector is still excluded, and so are certain employment relationships of private nature, and autonomous work.183 Thus, the personal and material scope of the directive is limited.

The Commission also found that some Member States, like Poland, Italy and Turkey, did not fully implement that key provision concerning the prohibitions against discrimination for persons with disabilities into their national laws.184

Reasonable Accommodation

179

Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016), 57.

180 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

181 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

182 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 3.

183 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

184 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

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Article 5 clearly establishes the duty to provide a reasonable accommodation for persons with disabilities, but it does not state that failure to comply with the duty amounts to a form of discrimination. This can be contrasted with the CRPD, which clearly specifies, in Article 2, that denial of a reasonable accommodation amounts to discrimination.185 Thus, there appears to be inconsistency and therefore uncertainty within the directive. Additionally, as not all workers with disabilities are covered by the scope of the directive, Article 5 does not urge all employers to provide reasonable accommodation.

Main issues for victims of discrimination Additionally, problems have been demonstrated for victims of discrimination seeking to avail of the protections provided for in the directive. State practice is inconsistent, and some states did not fully implement the provisions of Article 9, meaning that they still limit the right of associations to engage in legal procedures to help victims of discrimination.186 The same problem arose in regard to Article 10, as not all national laws reverse the burden of proof in cases of alleged discrimination.187 Some states also lack protection against victimisation in certain sectors, therefore they have not sufficiently implemented the provisions of Article 11.188 Definition of ‘Disability’ One major problem within the directive is the missing definition of ‘disability’. This has left the definition open to interpretation and therefore bearing the risk of an inconsistent state practice. The Court of Justice of the European Union decided in 2013 that the concept of ‘disability’ must be understood as ‘a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective

185

Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016), 41.

186 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

187 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

188 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

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participation of the person concerned in professional life on an equal basis with other workers.’189 Still, the judgement left the question unanswered if the directive understands the term ‘persons with disabilities’ as including persons with psychosocial disabilities.190 Implementation in Ireland Ireland had transposed the Employment Equality Directive into national law in 2004 with the amendment of the Employment Equality Act 1998, the Equality Act 2004, and the Social Welfare (Miscellaneous Provisions) Act 2004.191 The implementation went further than what Article 5 of the directive called for,192 as it also provides regulations of how ‘appropriate measures’ and ‘disproportionate burdens’ should be interpreted.193 This is important for the practical implementation of the duty to provide reasonable accommodation for persons with disabilities, as it sets out clear guidelines for employers.

However, when drafting the Equality Bill 2004 discussion arose,194 about the scope of the directive as it reads ‘employee…does not include a person employed in another person's home for the provision of personal services for persons residing in that home’.195 This means that there is no full duty to provide reasonable accommodation for all persons with disabilities in Ireland, similar to what Article 5 of the directive calls for.

Conclusion

189

Joined Cases C-335/11 HK Danmark v Dansk almennyttigt Boligselskab and C-337/11 HK Danmark v Dansk Arbejdsgiverforening [2013] ECLI:EU:C:2013:222, [38].

190 Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016) 36.

191 National transposition measures communicated by Ireland <https://eur-lex.europa.eu/legal-content/EN/NIM/?uri=celex:32000L0078> accessed 20 November 2021.

192 Mark Bell, ‘Pitfalls and Progress: Reasonable Accommodation for Workers with Disabilities in Ireland’ (2018) 41(1) Dublin University Law Journal 77.

193 Employment Equality Act 1998, s 16.

194 Question from Proinsias De Rossa to the European Commission (31 March 2004) <https://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2004-1115&language=EN> accessed 20 November 2021.

195 Equality Act 2004, s 3(a).

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The European Union targets the needs of persons with disabilities and tries to improve their access to work and consequently their participation in the society. Particularly in the case of the European Employment Equality Directive, it has been shown that through the necessary transformation into national law, there is a risk that the directive will only be inadequately implemented. This exacerbates the vagueness and the other problems that are already apparent in the Directive. Nevertheless, especially through regular evaluation of the implementation, the directive is having an effect, even if only in a limited area of application. The effect of the European Accessibility Act has yet to be seen, as Member States have until June 2022 to transpose it into national law. However, it can already be stated that European legislation regarding persons with disabilities is not entirely sufficient to enable them to fully participate in social life.

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Chapter 5: Criminal Justice Sorcha Byrne, Nadine Fitzpatrick

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Introduction The current criminal justice system in Ireland perpetuates inequality and infringes upon both the dignity and rights of persons with disabilities. It is often inaccessible for those seeking justice, and challenging for both those undergoing the criminal trial process and those within the prison system. This chapter will outline how a lack of support for persons with disabilities permeates all levels of the criminal justice system and will address specific areas which require reform.

Firstly, the disadvantages persons with disabilities face in the criminal trial process will be examined, focusing on the barriers in the criminal justice system, the absence of data on crime, the inconsistency in legislation and policy, and the need to provide intermediaries and interpreters. Secondly, the lack of support provided for persons with disabilities within the Irish Prison Service and the Irish Probation Service will be addressed.

I.

The Criminal Trial of Persons with Disabilities

Barriers in the Criminal Justice System The criminal process, from the initial report of a crime to the criminal trial and the subsequent aftermath of said trial, presents extensive barriers and complications for persons with disabilities. Barriers challenging access to justice, clarity of procedure, and practical adjustments throughout the criminal trial process produce immense disadvantages that can be deciding factors in their legal proceedings. A common view conveyed by literature on this matter is that various common law justice systems such as Ireland, the United Kingdom, the United States, Australia, and New Zealand are founded on an adversarial process, in which the principle of orality is essential.196 Thus, with a lack of necessary accommodations and a strong reliance on vocal communication, persons with disabilities have been faced with the difficulty of presenting their arguments or accounts during trial. Furthermore, the National Disability Association highlights three specific categories of barriers that hinder persons with disabilities embedded throughout the Criminal Justice System: structural, procedural, and attitudinal barriers.197

196

National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021.

197 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-and-

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Firstly, structural barriers entail the interrelationship between the prison and probation services, arrest by An Garda Síochána, and the courts, and moreover who within this system takes responsibility for supporting and assisting victims with disabilities.198 Secondly, there are procedural barriers, which as aforementioned, encompass the complexity and enormity of the legal system in general, but especially when not effectively conveyed to persons with disabilities. Lastly, and as suggested by international commentators and their research, the most crucial barriers being faced are attitude barriers. These can have a major impact on the criminal trial process for persons with disabilities in cases where barristers and judges formulate assumptions and opinions about victims as either incompetent or incredible in instances of witness statements or their own trial proceedings.199 These assumptions can make the process as a whole feel that much more intimidating and can project a sense of invisibility or condescension onto victims.

Absence of Data on Crime Another key aspect that negatively affects the criminal trial process and access to justice is the absence of data on the frequency or categories of crimes committed against people with disabilities within the nation, inadequate statistics to assess the experiences of people with disabilities and how they have been affected by a crime, and little research to evaluate whether the current supports are working to substantively improve access to justice for people with disabilities.200 Coupled with this absence of data are the gaps in main sources of information on crime, such as the Gardaí Public Attitudes Survey, and Crime and Victimisation module on the Quarterly National Household Survey (QNHS), to provide a breakdown of figures based on disability.201 Without this data, it is unlikely that any significant improvements can be made Safeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021.

198 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021.

199 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021.

200 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021.

201 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021.

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to the system, further perpetuating the injustice and inaccessibility inflicted upon persons with disabilities.

Inconsistency in Legislation and Policy A fundamental component in the treatment of vulnerable witnesses and suspects throughout the criminal trial process is rooted in existing legislation and policies. The confusion and incongruence in current statutes provide another set of barriers to people with disabilities. They are confronted with these barriers in various contexts, such as under the criminal law, legislation in relation to their capacity to make decisions, and legislation that puts in place projections for people with disabilities.202 While the criminal law overarchingly intends to protect all citizens within the State in the same way, developments in case law have placed an emphasis on the need for additional protective measures for people with disabilities. A prime example of this is Section 5 of the Criminal Law (Sexual Offences) Act 1993.203 There is also the Criminal Evidence Act 1992,204 implemented to establish specific measures for vulnerable witnesses including access to intermediaries during trial.205 Additionally, there are pieces of legislation that attempt to make information available, justice accessible, and legal proceedings fairer such as the Disability Act 2005, which obliges public service providers such as an Garda Síochána to ensure greater accessibility to resources and locations.206 However, there are still other acts such as the Lunacy Regulation (Ireland) Act 1871,207 which are not only derogatory in nature but which also fail to address ongoing issues facing people with disabilities. Ultimately, steps have been taken to address these issues through legislation and policy, but many more improvements and steps must be taken to create a more accessible and equal justice system.

Provision of Interpreters & Intermediaries

202

Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021.

203 Criminal Law Sexual Offences Act 1993, s 5(1).

204 Criminal Evidence Act 1992.

205 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021.

206 The Disability Act 2005, s 27.

207 Lunacy Regulation (Ireland) Act 1871.

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In order for the necessary progress to be made in terms of protections and accessibility for people with disabilities, a vital sector of the justice system to be invested in is the provision of interpreters and intermediary services.

Article 13 of the United Nations Convention on the Rights of Persons with Disabilities establishes that member states must guarantee access to justice that is both equal and implemented through the provision of proper accommodations.208 The National Disability Association believes that a ‘registered intermediaries scheme’ would be essential to carrying out the purposes of Article 13.209 Although the Criminal Evidence Act 1992,210 and the Criminal Justice Act 2017,211 have set out the provision of intermediary services, there has yet to be any definitive legislation or policy enacted to solidify this measure. Both intermediaries and interpreters are an integral part of the accessibility and judicial process as these are trained professionals with the required skills to assist in communication and clarify any procedural barriers. Their services would enhance and enable communication from the investigative report stage to the criminal trial process, thus resolving many of the previously raised concerns and challenges for people with disabilities in the justice system.212 Therefore, if the government prioritized establishing a scheme for these services, allowing all victims, suspects and witnesses to avail of these supports, the difficulties and injustices that continue to arise would certainly be partially addressed and this would further facilitate better access to justice in all stages of the criminal justice process.

II.

The Irish Prison Service

208

National Authority and National Authority, 'NDA Independent Advice Paper On The Use Of Intermediaries In The Irish Justice System | The National Disability Authority' (Nda.ie, 2020) <https://nda.ie/publications/justice-and-safeguarding/access-to-justice/nda-independent-advice-paper-on-theuse-of-intermediaries-in-the-irish-justice-system.html> accessed 21 November 2021.

209 National Authority and National Authority, 'NDA Independent Advice Paper On The Use Of Intermediaries In The Irish Justice System | The National Disability Authority' (Nda.ie, 2020) <https://nda.ie/publications/justice-and-safeguarding/access-to-justice/nda-independent-advice-paper-on-theuse-of-intermediaries-in-the-irish-justice-system.html> accessed 21 November 2021.

210 Criminal Evidence Act 1992, s 14.

211 Criminal Justice (Victims of Crime) Act 2017.

212 National Authority and National Authority, 'NDA Independent Advice Paper On The Use Of Intermediaries In The Irish Justice System | The National Disability Authority' (Nda.ie, 2020) <https://nda.ie/publications/justice-and-safeguarding/access-to-justice/nda-independent-advice-paper-on-theuse-of-intermediaries-in-the-irish-justice-system.html> accessed 21 November 2021.

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It is one of the official roles of the Irish Prison Service (IPS) to assist people in prison to maintain family relations and contact with the wider community.213 The IPS is responsible for providing safe and secure custody with dignity of care for people committed to prison.214 The Equality, Diversity and Inclusion Unit of the IPS is in place to ensure that the IPS meets its duties under legislation,215 to eliminate discrimination, promote equality of opportunity, and to protect human rights.216 Furthermore, the Public Sector Equality and Human Rights Duty,217 places a statutory obligation on public bodies to eliminate discrimination, promote equality of opportunity and protect the human rights of those to whom they provide services and staff when carrying out their daily work.218 European law also requires that each organ of the State perform its functions in a manner compatible with the State’s obligations under the European Convention on Human Rights.219 Despite the statutory provisions mentioned, research has found that prisoners with disabilities have been unable to access adequate prison services. Like other areas of society, people with disabilities are not adequately protected in prison environments. Legal action has also been taken by prison employees with disabilities who have not been afforded equal opportunities as a direct result of their disability. The recent research and case law sheds some light on the many issues faced by prisoners and people working in prisons with disabilities.

In early 2020, the Irish Penal Reform Trust (IPRT) launched a report regarding rights for people with disabilities in prison.220 The report found that despite the fact that prisoners’ rights are guaranteed by both Irish legislation and EU law, prisoners with disabilities are often discriminated against and experience a lack of support.221 The research was gathered through interviews with prisoners with physical and mobility impairments, mental health disabilities,

213

Department of Justice, ‘Irish Prison Service’s Role’ <https://www.justice.ie/en/JELR/Pages/irish_prison_service_role> accessed 20 November 2021.

214 Department of Justice, ‘Irish Prison Service’s Role’ <https://www.justice.ie/en/JELR/Pages/irish_prison_service_role> accessed 20 November 2021.

215 Irish Human Rights and Equality Commission Act 2014 s 42, Employment Equality Acts 1998 – 2015, Equal Status Acts 2000 – 2015.

216 Irish Prison Service, ‘Equality, Diversity & Inclusion Unit’ <https://www.irishprisons.ie/informationcentre/equality-diversity-inclusion-unit/> accessed 20 November 2021.

217 Set out in s. 42 of the Irish Human Rights and Equality Commission Act 2014.

218 Irish Prison Service, ‘Equality, Diversity & Inclusion Unit’ <https://www.irishprisons.ie/informationcentre/equality-diversity-inclusion-unit/> accessed 20 November 2021.

219 The European Convention on Human Rights Act 2003, The Charter of Fundamental Rights of the EU. 220 Irish Penal Reform Trust, Making Rights Real for People with Disabilities in Prison (2020) <https://www.iprt.ie/site/assets/files/6611/people_with_disabilities_in_prison.pdf> accessed 10 January 2022.

221 Irish Penal Reform Trust, ‘Making Rights Real for People with Disabilities in Prison’ (IPRT, 15 Jan 2020) <https://www.iprt.ie/iprt-publications/making-rights-real-for-people-with-disabilities-in-prison/> accessed 20 November 2021.

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acquired brain injuries, deaf people, and the visually impaired.222 The report found that prisoners with disabilities experienced isolation in cells, limited availability of information on prison services, and limited opportunities to communicate with peers and family members.223 The general trends which emerged from the report included that prisoners with disabilities face hurdles navigating prison services and that they are being denied specific accessibility aids.224 Recommendations included in the report concerned access to adequate information on rights, regimes, and complaint systems in prisons.225 The recommendations also concerned access to single-cell accommodation, continuity of care between community and prison, and the indefinite banning of solitary confinement.226 The Executive Director of the IPRT stressed that people with disabilities in prison must have access to the entire physical prison environment on an equal basis with other prisoners.227 III.

The Irish Probation Service

The Probation Service is a state agency within the Department of Justice and Equality which works with offenders to reduce offending and make communities safer.228 The Probation Service assesses offenders for the criminal courts and presents the court with a report.229 Like within the Irish prison system, people with disabilities going through the Probation Service process also face substantial hurdles. For example, issues have been raised regarding the impact of professional practices on people with learning difficulties in the criminal justice system.230 Additionally, recent research has found that the prevalence of mental health problems and 222

Irish Penal Reform Trust, Making Rights Real for People with Disabilities in Prison (2020) <https://www.iprt.ie/site/assets/files/6611/people_with_disabilities_in_prison.pdf> accessed 20 November 2022.

223 Noel Baker, ‘Prisoners with disabilities feel they are being ‘punished’ because of their condition, report finds’ Irish Examiner (Dublin, 15 January 2020) available at: <https://www.irishexaminer.com/news/arid30975676.html> accessed 20 Nov 2021.

224 Noel Baker, ‘Prisoners with disabilities feel they are being ‘punished’ because of their condition, report finds’ Irish Examiner (Dublin, 15 January 2020) available at: <https://www.irishexaminer.com/news/arid30975676.html> accessed 20 Nov 2021.

225 Irish Penal Reform Trust, Making Rights Real for People with Disabilities in Prison (2020) <https://www.iprt.ie/site/assets/files/6611/people_with_disabilities_in_prison.pdf> accessed 10 January 2022.

226 Irish Penal Reform Trust, Making Rights Real for People with Disabilities in Prison (2020) <https://www.iprt.ie/site/assets/files/6611/people_with_disabilities_in_prison.pdf> accessed 10 January 2022.

227 Noel Baker, ‘Prisoners with disabilities feel they are being ‘punished’ because of their condition, report finds’ Irish Examiner (Dublin, 15 January 2020).

228 Citizens Information, ‘Probation Service’ (Citizens Information, 21 April 2020) <https://www.citizensinformation.ie/en/justice/probation_and_welfare_services/probation_service.html> accessed 20 November 2021.

229 Citizens Information, ‘Probation Service’ (Citizens Information, 21 April 2020) <https://www.citizensinformation.ie/en/justice/probation_and_welfare_services/probation_service.html> accessed 20 November 2021.

230 David Denney, ‘People with Learning Difficulties and Criminal Justice – A Role for the Probation Service’ (1998) 45(4) Probation Journal 194.

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mental disorders among people under Probation Service supervision is significantly higher than the general population.231 A stark statistical example shows that at least 40% of adults on a Probation Service supervision order, compared to 18.5% of the general population, present with symptoms indicative of at least one mental health problem.232 The report found that there are significant unmet psychological and psychiatric needs among persons subject to Probation supervision, and limited Mental Health Service engagement.233 The findings demonstrate the high prevalence of ‘invisible’ disabilities among people under Probation Service supervision, such as psychotic disorders. In 2015, Mental Health Reform highlighted ongoing concerns regarding unmet need for mental health services for individuals falling within the remit of the Criminal Justice System, however many of their recommendations remain unimplemented.234 Conclusion In conclusion, it is clear that there remains significant barriers within the criminal justice system for persons with disabilities, from the trial process to prison service and probation service. The needs of persons with disabilities are not currently adequately catered for across all aspects of the criminal justice system, and this necessitates substantial reform. There is a pressing need for effective research and data collection within this field, adoption of inclusive practices within current services and introduction of effective and appropriate support mechanisms across all facets of the criminal justice system. The protection of the rights of persons with disabilities within the criminal justice system demands further concentrated efforts, particularly in the form of policy and provision of support services, in order to be more fully realised.

231

The Probation Service, ‘Moving Forward Together: Mental Health Among Persons Supervised by the Probation Service’ (Probation Service Research Report, 4 March 2021).

232 The Probation Service, ‘Moving Forward Together: Mental Health Among Persons Supervised by the Probation Service’ (Probation Service Research Report, 4 March 2021), 5.

233 The Probation Service, ‘Moving Forward Together: Mental Health Among Persons Supervised by the Probation Service’ (Probation Service Research Report, 4 March 2021) , 6.

234 Mental Health Reform, ‘A Vision for Change Nine Years On: A coalition analysis of progress’ (Mental Health Reform, 2015) <https://www.mentalhealthreform.ie/wp-content/uploads/2015/06/A-Vision-for-Changeweb.pdf> accessed 20 November 2021.

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Chapter 6: Education Dara Kavanagh, Ruairi Lee, Fiona Stenson, Sophie Treacy

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Introduction The provision of education has a transformative effect on those living with disabilities. This chapter aims to assess the scope of the right to free primary education as it applies to children with disabilities in Ireland. In this chapter, Irish legislation and initiatives that have been implemented in the deliverance of education to children with disabilities will be examined.

I.

The right to an “appropriate” education under Irish law

Article 42.4 defines one of the only socio-economic entitlements under the Irish Constitution, which consecrates the right to a free primary education. This section states that “The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious or moral formation.235” Article 42.4 has often been litigated in the Irish courts in the context of children with disabilities and their right to an appropriate education under Irish law.236 As is the case with most constitutional provisions that confer individual rights, the ambit of Article 42.4 has fluctuated over the decades in accordance with trends of judicial interventionism. The characterisation of what was first considered an “appropriate education” had quite narrow origins, with Kenny J in the High Court asserting that education was primarily “scholastic” in nature.237 Fortunately, this view was quickly overturned at Supreme Court level, with Ó’Dálaigh CJ favouring a far more holistic vision of what constitutes an appropriate education. Herein, the learned judge described education as “essentially, the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral.”238 On foot of this broad vision of what an “appropriate education” should strive to achieve, numerous cases arose throughout the 1990’s concerning children with mental and physical disabilities who sought to compel the State to provide them with a better standard of education.239 In O’Donoghue v Minister for Health,240 The applicant was a child

235

Article 42.4 Oran Doyle and Tom Hickey, Constitutional Law: Texts, Cases and Materials (2nd edn, Clarus Press 2019) 514.

237 Ryan v Attorney General [1965] IESC 1, [2009 ] IR 294.

238 Ryan v Attorney General [1965] IESC 1, [2009 ] IR 294 per Ó’Dálaigh CJ at para 37.

239 Oran Doyle and Tom Hickey, Constitutional Law: Texts, Cases and Materials (2nd edn, Clarus Press 2019) 514.

240 [1993] IEHC 2, [1996] 2 IR 20.

236

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suffering from severe mental and physical disabilities whose mother was providing him with education at her own expense as there was no appropriate school place available to him. The State refused to provide him with education appropriate to his needs, claiming he was “uneducable” in the context of the State school system. In rejecting this claim, O’Hanlon J emphasised that the State’s obligation to provide an appropriate education applied to all children in the State, even to those with physical and mental disabilities. In finding for the applicant, O’Hanlon J quoted the United Nations Convention and Resolution of the General Assembly in saying that education is about helping children to “achieve the fullest possible social integration and individual development.” Thus, in the case of children with disabilities, an appropriate education should enable them to reach their individual potential, albeit within “a completely different programme of education”241 and at “a completely different rate of progress.”242 The O’Donoghue,243 ruling asserted the standard of education to which children with disabilities are constitutionally entitled. However, this decision occurred in the midst of what has been called “the heyday of judicial enforcement of socio-economic rights in Irish constitutional law.”244 The turn of the century saw the Irish judiciary retreat from traditional interventionism in terms of defending socio-economic rights. In line with this, the decision of Sinnott v Minister for Education,245 signified a retreat from the relative judicial activism in enforcing the right to education for children with disabilities. This case involved the mother of twenty-three year-old Jamie Sinnott taking an action on his behalf against the State for not providing her autistic son with an appropriate education. She sought damages for the State’s failure to meet his educational needs and injunctions to ensure that he received a primary education in the future as would be reasonably required. The State contended that the right to a free primary education was limited to those under the age of eighteen years. The Supreme Court decided that the language of Article 42.4 could be construed as applying to ‘children’ and as such, this limited its scope to those under the age of 18.246 II.

Education for Persons with Special Educational Needs Act 2004

241

[1993] IEHC 2, [1996] 2 IR 20 at para 62.

[1993] IEHC 2,[1996] 2 IR 20 at para 62.

243 [1993] IEHC 2,[1996] 2 IR 20.

244 Gerry Whyte Social Inclusion and the Legal System: Public Interest Law in Ireland (2nd edn, Institute of Public Administration, Dublin 2015).

245 [2001] IESC 63, [2001] 2 IR 545.

246 Sinnott v Minister for Education [2001] IESC 63, 2 IR 545 (per Denham J at para 653).

242

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Aims of the Act Prior to 1998, there was a dearth of legislation governing access to education for persons’ with disabilities in Ireland. The legislative framework that was subsequently advanced was influenced by two developments; firstly, a series of high profile Supreme Court cases regarding the provision of education for individuals with disabilities and learning difficulties.247 Secondly, a movement both within Ireland and internationally to provide a more inclusive and equitable education system for all, which would signal a marked shift away from the previously segregated system of education.248 The 1998 Education Act was the starting point, but it was the Education for Persons with Special Educational Needs (EPSEN) Act 2004,249 which established the far-reaching rights regarding the access to education for individuals with additional educational needs and is the preeminent legislation in this regard. The Act focuses on the education of children and minors but is largely silent on the provision of education for those over the age of eighteen. The purpose of this act as outlined in its preamble, is that individuals with special educational needs “have the same right to avail of, and benefit from, appropriate education as do their peers who do not have such needs” and should be educated in an inclusive environment.250 Key Provisions of the Act The Act begins with a guide to the interpretation of its provisions. The definition of special educational needs (SEN) is defined as a “restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability, or any other condition which results in a person learning differently from a person without that condition”.251 This is a far-reaching and comprehensive conceptualisation of SEN. It has been estimated that the prevalence of individuals with SEN in Ireland is between 20-25 per cent,252 highlighting the need for legislation in this area of education. However it must be noted, that there is warranted criticism of the use of phrases such as “special” in relation to individuals with disabilities, as it has adverse effects such as propagating the false idea that individuals with disabilities are ‘different’ or ‘not normal’ which is clearly extremely

247

Sinnott v Minister of Education [2001] IESC 63, [1996] 2 IR 20.

Sarah Arduin, ‘Implementing Disability Rights in Education in Ireland: An Impossible Task?’ (2013) 36 Dublin University Law Journal 93, 105.

249 Henceforth, referred to as ‘the Act’.

250 EPSEN 2004, Preamble.

251 EPSEN 2004 s 1 (1).

252 Mary Thompson and Ann Katrin-Svaerd. ‘Unintended Consequences of special-needs law in Ireland and Sweden’ (2019) 48(2) Emerald Insight 333.

248

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damaging.253 Furthermore, persons with SEN and persons with disabilities are not interchangeable terms in this context, as not all persons with disabilities have SEN and vice versa.254 The “key message” of the Act has been articulated as providing for an inclusive educational environment for persons with SEN alongside children who do not have such needs.255 This reflects the overall conception of an inclusive education, which encompasses the ideal that the system changes and adapts to accommodate all children and not that the child adjusts to fit in to the system.256 This section is progressive in its outlook and has mirrored a shift in liberal democracies across the world towards a more equitable education system for children.

However, this provision of an inclusive educational environment is conditional and is subject to two exceptions; the best interests of the child with SEN would suffer in this environment or such an environment would be inconsistent with the effective education of those with whom the child would be educated.257 The wording of this section and the focus on the educational environment places an emphasis on where the child learns; namely will the child attend a mainstream school, a school for persons with SEN or receive education in SEN classes within a mainstream school.258 In addition to this, the Act identifies the schools responsibilities,259 and entitles students to educational assessments.260 The Act emphasises the central role that parents should have in the educational decision-making process. This was a provision that was strongly advocated for and encouraged by parents of children with SEN in the drafting stage of the legislation.

Structures To Facilitate The Implementation Of The Act

253 Sarah Arduin. ‘Implementing Disability Rights in Education in Ireland: An Impossible Task?’ (2013) 36 Dublin University Law Journal 93, 114.

254 Andrea Broderick, ‘The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience’ (2014) 9 Irish Yearbook of International Law 25.

255 National Council for Special Education, Children with Special Educational Needs: Information Booklet for Parents (2014). <https://ncse.ie/wp-content/uploads/2014/10/ChildrenWithSpecialEdNeeds1.pdf> accessed 16 November 2021.

256 National Council for Special Education, Children with Special Educational Needs: Information Booklet for Parents (2014). <https://ncse.ie/wp-content/uploads/2014/10/ChildrenWithSpecialEdNeeds1.pdf> accessed 16 November 2021.

257 Education for Persons with Special Educational Needs Act 2004, s 2 (a)(b).

258 Sarah Arduin, ‘Implementing Disability Rights in Education in Ireland: An Impossible Task?’ (2013) 36 Dublin University Law Journal 93.

259 Education for Persons with Special Educational Needs Act 2004, s 14.

260 ibid. s. 3

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The Act formally established the National Council for Special Education (NCSE), which is a statutory body that came into force in October 2005.261 The NCSE is vested with numerous responsibilities such as; providing information to parents, schools and stakeholders regarding good practice surrounding education for persons with SEN, conducting research, monitoring and reviewing the progress of children with SEN and assessing resources that need to be allocated to schools to support students.262 The Act also vests the Council with the power to designate the school that a child with SEN should attend, the NCSE takes into account the needs of the child, the wishes of the parents and the resources of the school.263 The NCSE is one of the structures used to implement the provisions of the act and undertakes a lot of the work that was previously delegated to the Minister for Education. The remit of the NCSE will be expanded as the Act is implemented further in the future.264 The Act also established The Special Education Appeals Board which aimed to serve as an “alternative method of dispute resolution.”265 Prior to this, the only way to seek a form of redress was to go to court. Parents, schools, principals, the NCSE and Health Boards can all bring issues and complaints to the Appeals Board that are pursuant to the Act.266 Whilst having been established, this board is not yet in operation. Once it is operational, numerous types of complaints can be brought to the board; including the Appeals Board having the authority to direct the NCSE to arrange the preparation of an educational assessment.267 Failure To Implement Key Provisions Unfortunately, seventeen years on from when the Act was signed into the law, many of its fundamental reforms have yet to be fully implemented, despite assurances in the Programme for Government (2007-2012).268 This failure to execute the Act has incurred significant 261 National Council for Special Education, ‘Children with Special Educational Needs: Information Booklet for Parents’ (2014) <https://ncse.ie/wp-content/uploads/2014/10/ChildrenWithSpecialEdNeeds1.pdf> accessed 16 November 2021.

262 Education for Persons with Special Educational Needs Act 2004, s 20 (1).

263 Education for Persons with Special Educational Needs Act 2004, s 10.

264 National Council for Special Education, ‘About us’ <https://ncse.ie/about-us> accessed 16 November 2021 265 Citizens Information, ‘Special Needs Education’ (13 May 2021) <https://www.citizensinformation.ie/en/education/the_irish_education_system/special_education.html> accessed 16 November 2021.

266 Mary Meaney, ‘The Education for Persons with Special Educational Needs Act 2004- Response’ (2005) 18 Reach Journal of Inclusive Education in Ireland 71.

267 Anna O’ Duffy, ‘A Guide to The Law in Ireland in Relation to Disability’ (December 2018) <https://ilmi.ie/wp-content/uploads/2018/12/ILMI-guide-to-the-law-in-relation-to-disability.pdf> accessed 16 November 2021.

268 Andrea Broderick, ‘The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience’ (2014) 9 Irish Yearbook of International Law 25, 44.

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criticism with the Oireachtas’s Education Committee highlighting, in particular, the failure to implement the right to an individual education plan, the right to an education assessment, the delivery of educational supports, and the failure to have an operable Appeals Board.269 The justification provided for such significant delays was the economic situation and the substantial costs that would be involved in bringing the provisions of the Act into effect. This reasoning aligns with the facts that many of the commitments of the Act are subject to available resources.

This is observed through an analysis of Section 13 which sets out that the Minister for Education must obtain the consent of the Minister for Finance, to use money provided by the Oireachtas for the preparation and implementation of education plans.270 This creates “major difficulty” regarding the ability of the Act to meet the needs of all children with special educational needs.271 This is contrary to the focus of the Act, as described by the then Minister of Education Noel Dempsey, which is to put the child at the centre of reforms.272 III.

Educational Needs Assessments and Curriculum Design

Background The National Council for Curriculum and Assessment (NCAA) was established under Section 39 of the Education Act 1998.273 It is the statutory body of the Department of Education in charge of advising the Minister for Education on curriculum design for early childhood education up to post-primary school, as well as assessment procedure for subjects involved in the curriculum. The NCCA works towards the goal of creating the most ambitious and innovative learning environment possible for all learners in schools and other educational settings.274 Educational Needs Assessment

269

Nicole Glennon, ‘Deficit of responsibility in addressing special educational needs of children’ Irish Examiner (Dublin, 20 April 2021) <https://www.irishexaminer.com/news/arid-40270880.html> accessed 16 November 2021.

270 Education for Persons with Special Educational Needs Act 2004, s 13.

271 Andrea Broderick, ‘The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience’ (2014) 9 Irish Yearbook of International Law 25, 45 272 Dáil Deb 26 May 2004, vol 586, no 3.

273 S.I. No. 245/2001 - Education Act, 1998 (National Council For Curriculum and Assessment) (Appointment of Members) Regulations, 20.

274 ‘Bodies Under the Aegis of the Department of Education and Skills’ (Gov.ie) <https://www.gov.ie/en/organisation-information/341d4e-bodies-under-the-aegis-of-the-department-ofeducation-and-skills/?referrer=http://www.education.ie/en/The-Department/Agencies/National-Council-forCurriculum-and-Assessment-NCCA-.html#national-council-for-curriculum-and-assessment-ncca> accessed 10 November 2021.

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The Education for Persons with Special Needs (EPSEN) Act enables the assessment of all children that may have special needs after an application is sent to the principal of the school, the HSE or the National Council for Special Education (NCSE). It also ensures those that are assessed with special needs have an Individual Education Plan (IEP) uniquely tailored to them.

This written document establishes the teaching approach and resources for schools to allow the child to reach their set learning goals over a certain period of time. This requires cooperation from the school, the guardians, the student and any other parties that might be involved.

As previously outlined, the Act allows a Special Education Appeals Board to be established which would hear appeals from guardians and school principals if the Council refused an assessment arrangement or the preparation of an education plan, and had authority to instruct the council to arrange an assessment or education plan. A mediation process is also provided by the Act after the exhaustion of any appeal rights under the legislation. It was introduced as a way to defer the use of courts as a redress forum, but has failed to be put in operation to date.275 The Future of Educational Needs Assessment The National Council for Special Education have made a series of recommendations relating to the future of education for children with SEN through the implementation of the ESPEN Act in 2006.276 Their stressed that parents are concerned about waiting lists and a lack of agreed standards for assessment, noting in particular that the perceived delays are caused by the scarcity of suitably qualified professionals in the health and education sectors and furthermore that these difficulties are compounded by differences in the type of assessments required by the Health and Education services to trigger the provision of services in their respective sectors.277 The Council recommended that the assessment and resource allocation processes should be separated out so that assessment of itself is the identification of need rather than a categorisation to maximise resources, however this does not appear to have been fully realised

275 Anna O’Duffy ‘A Guide to the Law in Ireland in Relation to Disability’ (Independent Living Movement Ireland) <https://ilmi.ie/wp-content/uploads/2018/12/ILMI-guide-to-the-law-in-relation-to-disability.pd> accessed 12 November 2021.

276 ‘Implementation Report; Plan for the Phased Implementation of the ESPEN Act 2004’ (1 October 2006) <https://ncse.ie/wp-content/uploads/2014/10/ncse_imp_report.pdf> accessed 15 November 2021.

277 ‘Implementation Report; Plan for the Phased Implementation of the ESPEN Act 2004’ (1 October 2006) <https://ncse.ie/wp-content/uploads/2014/10/ncse_imp_report.pdf> accessed 15 November 2021.

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to date.278 The Council further noted issues in the development and implementation of the IEPs following educational needs assessments, suggesting that additional resources should be provided to schools to facilitate their involvement in IEP and that these resources ‘centre on additional posts to support the time and space requirements of the IEP process and in-service training for all teachers’.279 The emergent trend of their recommendations were the need for appropriate resourcing of assessment procedures and subsequently schools, and amendment of the current assessment process itself.

Curriculum Design In 2003, the newly established NCAA launched a curriculum review which included interviewing children, guardians, teachers, and principals in a case study of six schools, as well as a survey of teachers.280 While this was specifically a review of primary schools, the findings have limited applicability to early childhood, Junior Certificate and Leaving Certificate curriculums. English, mathematics, and visual arts were the subjects reported in the first phase of the review published in 2005, while the second report in 2008 handled Gaeilge, science and SPHE. Similar issues relating to SEN were raised; in large classrooms that included children with SEN there was insufficient time for individuals to be assessed, suitable diagnostic tests to identify students with SEN were missing and further importance had to be placed on parent/teacher meetings to support these students.281 These made it an overall challenge for teachers to deliver curriculum and assessment that catered for children with a wide range of abilities. In other cases, teachers themselves have lacked the competence to cater for all learners. One reason for this can be attributed to inadequate training that lacked SEN components, meaning an environment of inclusion was hard to provide and knowledge of applying the curriculum to those with either behavioural or complex intellectual disabilities was missing.282 278

‘Implementation Report; Plan for the Phased Implementation of the ESPEN Act 2004’ (1 October 2006) <https://ncse.ie/wp-content/uploads/2014/10/ncse_imp_report.pdf> accessed 15 November 2021.

279 ‘Implementation Report; Plan for the Phased Implementation of the ESPEN Act 2004’ (1 October 2006) <https://ncse.ie/wp-content/uploads/2014/10/ncse_imp_report.pdf> accessed 15 November 2021.

280 ‘Research Report No.8: Access to the Curriculum for Pupils with a Variety of Special Educational Needs in Mainstream Classes- An Exploration of the Experiences of Young Pupils in Primary School’ (National Council for Special Education Research, 2011) < https://ncse.ie/wpcontent/uploads/2014/10/AccesstotheCurriculum_1.pdf > accessed 15 November 2021.

281 ‘Research Report No.8: Access to the Curriculum for Pupils with a Variety of Special Educational Needs in Mainstream Classes- An Exploration of the Experiences of Young Pupils in Primary School’ (National Council for Special Education Research, 2011) < https://ncse.ie/wpcontent/uploads/2014/10/AccesstotheCurriculum_1.pdf > accessed 15 November 2021.

282 ‘Universal Design for Learning’ (AHEAD, 2 November 2017) <https://www.ahead.ie/udl> accessed 15 November 2021.

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The Future of Curriculum Design For the benefit of SEN students and Ireland as a whole, the Universal Design for Learning (UDL) should be adopted.283 It is a set of principles, backed by research in neuroscience, with the aim of improving the educational experience for all students by incorporating more flexible methods of teaching, assessing and service providing. The nine principles can be summarised as follows: i.

Equitable Use: The same opportunity for engagement is given to all students via access to the same class materials

ii.

Flexibility in use: To consider varying styles of learning, teachers should stray from reliance on the traditional lecture model and include other methods of instruction such as discussion and group work.

iii.

Simple and Intuitive: Information related to module content, such as reading lists and assessment layout, and difficulty level in the assessments across these modules should be consistent. Also, the material being presented to the students should be reviewed and any with unnecessary complexity should be disregarded.

iv.

Perceptible Information: All curriculum material must be available in an accessible format for all students to minimise cost and misuse of term time.

v.

Tolerance for Error: The assumption that students arrive to a module with a certain set of ‘core skills’, such as research ability and oral presentation, is dismissed and instead the skills are taught.

vi.

Low Physical Effort: Unnecessary physical exertion, like excessive note taking in class that not all are suited to, is removed. Instead, material necessary to be taken away from the lesson will be available online for the entire class.

vii.

Size and Space for Approach and Use: Use of the traditional row model for desks is reduced, and technology is integrated into the teaching setting so students can avoid becoming disengaged with school due to the classroom model.

viii.

A Community of Learners: A relationship among learners and with their faculty is essential. Further engagement can come with the creation of study groups and discussion boards for example.

283

‘Universal Design for Learning’ (AHEAD, 2 November 2017) <https://www.ahead.ie/udl> accessed 15 November 2021.

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ix.

Instructional Climate: the common informing of students with SEN to ‘lower their expectations’ when it comes to academic performance is abandoned so no student believes they will not be proportionately rewarded for effort in school.

The implementation of this model has been extensively advocated for in Ireland, most recently within a higher education setting, with a view to improving the inclusion and retention of students with disabilities.284 IV.

Case Study: School closure during Covid 19 and the rights of children with disabilities and/or special educational needs

With the emergence of the Covid-19 pandemic, primary and secondary schools closed for extended periods of time. This presented a number of issues, as while some children continued to do their work from home, households with children with special educational needs generally lacked the facilities required to educate their children to a comparable level as their schools.

Therefore, the closure of schools was suggested to have a marked effect on the learning and development for children with special educational needs; concerns were expressed that it negatively impacted their social and academic progression.285 In discussing the reopening of schools, advocates expressed that ‘we cannot lose sight of the significant harm being done to many students with special educational needs by the continued absence of an adequate level of education supports’.286 They further detailed the struggles of families and carers of children with disabilities, impressing that ‘the discussions that have taken place between Government and educational stakeholders have relegated the voice and needs of the child throughout this process’.287 It was highlighted that following the closure of schools, there were sparse supports available the at-home education for children with special educational needs such as ‘[d]irect virtual 1:1 access to the teacher, special education teacher

284

Ahead, ‘Inclusive Learning and the Provision of Reasonable Accommodations to Students with Disabilities in Higher Ed in Ireland’ <https://www.ahead.ie/reasonableaccommodations> accessed 17 January 2021.

285 Ellen O’Riordan, ‘School closures: Parents of children with special needs threaten legal action’ (The Irish Times, 22 Jan 2021) <https://www.irishtimes.com/news/education/school-closures-parents-of-children-withspecial-needs-threaten-legal-action-1.4465595> accessed 14 November 2021.

286 Inclusion Ireland, ‘Children with disabilities and their families ‘almost completely forgotten’ in schools’ row’ (19 January 2021) <https://inclusionireland.ie/news-events/children-with-disabilities-and-their-familiesalmost-completely-forgotten-in-schools-row-disability-and-family-carer-groups/> accessed 14 November 2021.

287 Inclusion Ireland, ‘Children with disabilities and their families ‘almost completely forgotten’ in schools’ row’ (19 January 2021) <https://inclusionireland.ie/news-events/children-with-disabilities-and-their-familiesalmost-completely-forgotten-in-schools-row-disability-and-family-carer-groups/> accessed 14 November 2021.

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or SNA, direct virtual access to therapy supports, in-home supports from a teacher or SNA’ which would have potentially made possible the partial re-opening of schools for children whose needs would not be met by these measures.288 Of note, there were serious concerns expressed as to the constitutionality of the school closure for children with special educational needs, particularly due to the absence of a comprehensive system of at-home supports. Prospective litigation strategies based on the afore-outlined ‘appropriate education’ jurisprudence were drafted, to force action on the part of the State to provide effectively for children with special educational needs.289 The primary contention appeared to challenge that the school closure was an appropriate restriction of their right to education.290 While schools were eventually reopened to varying degrees and these points became largely moot, the significant detrimental impacts and emotional distress caused for all involved remained evident. It was hoped that the summer provision programme run by schools would ameliorate the situation and lessen any detrimental impact of the school closure, however it was largely described as a failure.291 The programme appeared to operate on a voluntary and ad hoc basis, with limited resources and availability for students. Commentators expressed the view that Government resolutely failed to adopt a child-centred approach to this issue.292 From this case-study it is evident that a robust and flexible system of education for children with special educational needs is essential to their development and social progression.

Chapter Conclusion ● Despite judicial rulings in the 1990s defining an “appropriate education” as one which allows a child to reach their full potential and capacities, in light of decisions such as 288

Inclusion Ireland, ‘Children with disabilities and their families ‘almost completely forgotten’ in schools’ row’ (19 January 2021) <https://inclusionireland.ie/news-events/children-with-disabilities-and-their-familiesalmost-completely-forgotten-in-schools-row-disability-and-family-carer-groups/> accessed 14 November 2021.

289 Ellen O’Riordan, ‘School closures: Parents of children with special needs threaten legal action’ (The Irish Times, 22 Jan 2021) <https://www.irishtimes.com/news/education/school-closures-parents-of-children-withspecial-needs-threaten-legal-action-1.4465595> accessed 14 November 2021.

290 Ellen O’Riordan, ‘School closures: Parents of children with special needs threaten legal action’ (The Irish Times, 22 Jan 2021) <https://www.irishtimes.com/news/education/school-closures-parents-of-children-withspecial-needs-threaten-legal-action-1.4465595> accessed 14 November 2021.

291 Jess Casey, ‘Summer provision problems leave families in limbo’ (The Irish Examiner, 28 May 2021) <https://www.irishexaminer.com/news/spotlight/arid-40300253.html> accessed 14 November 2021.

292 Ellen O’Riordan, ‘School closures: Parents of children with special needs threaten legal action’ (The Irish Times, 22 Jan 2021) <https://www.irishtimes.com/news/education/school-closures-parents-of-children-withspecial-needs-threaten-legal-action-1.4465595> accessed 14 November 2021.

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O’Carolan293 and Sinnott,294 it is seriously questionable whether this standard of “appropriate education” is being upheld for children with disabilities in Ireland. ● Whilst the Education for Persons with Special Educational Needs (EPSEN) Act 2004 represented a step forward for special needs education in Ireland, more work needs to be done by both the Government and the National Council for Special Education in realising the goals of the legislation. ● In order to better deliver education to classes of children with mixed ability, the Universal Design for Learning (UDL) should be adopted. ● As the restrictions imposed during the Covid-19 pandemic had a particularly adverse effect on school children with disabilities, this highlights the importance of ensuring all children with disabilities in Ireland receive an inclusive and quality education.

293 294

[2005] IEHC 296.

[2001] IESC 63, 2 IR 545.

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Chapter 7: Employment Adaeze Chukwuogor, Apoline Quinson, Kylie Quinn

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Introduction The following chapter proposes to analyse certain key aspects of Ireland’s national legislative and policy frameworks supporting persons with disabilities within the realm of employment.

This is supplemented by a comparative analysis of the legal models of the united kingdom and Australia.

I.

Primary legislative and policy context for persons with disabilities and employment in Ireland

This section will seek to give an insight on the legal framework that supports people with disabilities in employment contexts. It will additionally outline the primary policy initiatives which compliment this framework.

In terms of the legislative context, the primary components are as follows; Employment Equality Acts 1998 and 2004 These Acts outlawed discrimination in the areas of recruitment, employment, promotion, and training, and define what constitutes discrimination. In terms of obligations, employers are required to take reasonable steps to accommodate employees and prospective employees with disabilities. In Part 2 (s.16(3(a))) , the Act provides that a person with a disability should be regarded as fully competent to undertake any duties with the aid of special treatment or facilities. However, they are not obliged to recruit or retain someone who cannot undertake the duties of the job even with reasonable accommodation. “Accommodation” may take the form of modification to work tasks, working hours, physical changes to the workplace, or provision of assistive technology. “Reasonable” means the employer is not obliged to undertake a disproportionate burden to make these accommodations.

Disability Act 2005 This Act promotes the principle of mainstreaming which involves that “mainstream services across government departments, public services should involve people with disabilities in their design and delivery”. This Act supplemented the previous Acts by considering public sector work and applying the previous employer obligations in addition to setting a target percentage for staff with disabilities; this goal is currently 3%. It is important to note that this Act specifies

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that these provisions do not apply to the Defence Forces, the Garda Síochána or prison officers of a prison.

This legislative framework is supplemented by policy initiatives such as the; National Disability Inclusion Strategy 2017-2021 The National Disability Inclusion Strategy (NDIS) which also plays a role in the sphere of work for disabled persons.295 The NDIS 2017-2021 sets out key actions for each theme and objective and gives the timeframe for delivery by the relevant government department. The NDISSG monitors the implementation of the NDIS. The 4th objective of the NDIS is “employment”. In the section entitled “People with disabilities have the opportunity to work and have a career”, the NDIS makes the affirmation that Comprehensive Employment Strategy, discussed subsequently will be fully implemented by the Department of Justice and Equality and all departments and relevant agencies. Jobseekers with disabilities will also be supported through trainings and employment opportunities provided by programmes such as Employability Service, the Wage Subsidy Scheme, the Reasonable Accommodation Fund. As for the public sector employment of person with disabilities, NDIS seeks to increase it from 3% to 6% by 2024.

II.

Ireland’s Comprehensive Employment Strategy for People with Disabilities

This section will seek to explain the Comprehensive Employment Strategy for People with Disabilities 2015-2024 (herein “the Strategy”).296 It consists of three three-year plans; the second of these plans ends in 2021. This Strategy was created by a group of senior officials from Government Departments and the National Disability Authority (NDA). The latter received forty seven written submissions from disability organisations, social partners, and individuals. It also conducted a consultation session with various disability organisations.

The goal of the Strategy can be summarised by its six priorities, which are to: 1. Build skills, capability and interdependence, 2. Provide bridges and supports into work,

295 296

National Disability Inclusion Strategy | (2017 -2021).

Comprehensive Employment Strategy for People with Disabilities 2015-2024.

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3. Make work pay, 4. Promote job retention and re-entry to work, 5. Provide co-ordinated and seamless support, and 6. Engage employers.

As suggested by its title, the Strategy seeks to be comprehensive, thus it includes people with physical, sensory, intellectual or mental health disabilities, those who acquire a disability, and people with autism. It seeks to cover the full spectrum of abilities and degrees of impairment.

In respect of employment issues, it covers a range of factors of employment such as education, transportation, welfare policy, activation, and direct supports. It is currently the most significant piece of policy in the area of employment for people with disabilities in Ireland.

Legislative context and the need for the Strategy In terms of the factual context leading to this Strategy, the 2011 census showed that only 33% of people with disabilities of working age are in work, compared to 66% of non-disabled people; this is low in international terms, even allowing for intercultural differences in reporting disabilities.297 There are especially low employment rates for people with intellectual disabilities or mental health difficulties. However, this is not due to a lack of desire to work; almost two-thirds of younger people and over one third of all people with disabilities expressed an interest in working.298 This highlights the need for a comprehensive strategy to address the systemic barriers to employment faced by people with disabilities who wish to work.

Issues in employment for people with disabilities The National Disability Survey 2006 observed that the main perceived barriers to employment are, in order: flexible work arrangements (45%), modified tasks (29%), wage subsidy (24%), transport/parking (17%), accessible buildings (13%), human support (7%), and assistive technology or physical adjustments (4%).299 On the employers’ side, perceived obstacles to hiring employees with disabilities were illuminated by a 2007 FÁS employer study. It showed that employers who had never considered hiring a person with a disability reported that the opportunity never arose (22%) or they had never had a disabled candidate apply (16%). Other companies cited employing lack 297

Comprehensive Employment Strategy for People with Disabilities (2015-2024).

National Disability Survey 2006, vol 2.

299 National Disability Survey 2006, Table 7.29.

298

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of company suitability for people with disabilities (18%), the work was specialised (7%), the work was too physical (5%), the premises were unsuitable (4%) or perceived health and safety reasons prevented it (2%).300 It has additionally been stressed that there exist specific barriers for different forms of disability. Darran Brennan, commenting on the experiences of those with invisible diabilities, stated that “it would be better to focus on efforts on changing cultural and societal understanding of invisible disabilities in the workplace”.301 This illustrates the more complex social attitudes which can impact experiences of employment and accessing employment for those with disabilities.

Priorities and aims of the Strategy The afore-mentioned priorities of the strategy largely derive from these previous listed issues.

Collectively, they demonstrate more general aims of the strategy which may be broken down as follows: •

Stemming the flow into joblessness and pathways for entry or re-entry into work o The flow of joblessness is most likely when leaving the education system, and pathways for re-entry are needed when acquiring a disability later in life. Thus, the strategy prioritizes designing early school programs for successful transitions into post-school options; it also prioritizes lowering barriers for reentry into work in later life.

•

Pursue supported employment systems o These can be described as a “place, train, and maintain model”. This describes a job seeking system where an individual receives support from a job coach who assesses the individuals’ needs, finds an appropriate workplace, and ensures their successful transition into work. This calls for a cohesive national strategy, as research shows supported employment schemes valuably assist people with disabilities to get and keep jobs; this requires steady links with employers.302

300

Comprehensive Employment Strategy for People with Disabilities (2015-2024) 39.

Darran Brennan, ‘Rights and Protections for Employees with Invisible Disabilities’ [2021] 18(3) Irish Employment Law Journal 59.

302 Purvis and ors, ‘2011 Early Implementation and 2012 Steady State Waves of the research’ (London, 2013) DWP Research Report 846.

301

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An example of this program is the Individual Placement with Support model which was developed in the mental health area.303 •

Implementation of Universal Design. o This is the process of planning buildings, education, transportation, and other services which are universally accessible, including people with disabilities.

Although there is detailed design guidance in existence for essentially all aspects of building design issued by the NDA, accessible transportation still demonstrates room for improvement, particularly in rural parts of the country.

Progress as of 2020 Review of the progress of this Strategy seeks to be similarly comprehensive. The process mainly consists of an annual review by the National Disability Strategy Implementation Group of overall progress. This Implementation Group consists of a senior officials group on disability, the NDA, and the Disability Stakeholder Group. There are also annual reviews of Departmental progress by a Disability Consultative Committee composed of department officials, representation from the Disability Stakeholders Group, the NDA, and other disability representatives. This process is supplemented by periodic advice papers from the NDA. The most recently published review of the Strategy at the end of year 2020 noted the significant impact of COVID-19 on people with disabilities, particularly in the area of employment. An advice paper submitted by the National Disability Authority to an Oireachtas special COVID19 committee noted that “persons with disabilities may be particularly at risk of losing their job due to the higher proportion of persons with disabilities in lower paid jobs such as retail, catering, and hospitality compared to the general population”.304 At the same time, remote work has benefited some persons with disabilities because it lowers barriers including transportation, flexibility of hours, and workspace accommodation. In fact, the Future Jobs Ireland 2019 and the National Remote Working Strategy both emphasize remote working’s opportunity for workforce inclusion for some persons with disabilities. In terms of the national pandemic recovery strategy, the NDA warned that there is risk for overlap between the Strategy and the pandemic recovery; further Strategy plans must take care to remain efficient.

303

Miles Rinaldi and ors, ‘Individual placement and support: from research to practice’ (2008) Advances in Psychiatric Treatment 14, 50-60.

304 National Disability Authority, Submission to the Oireachtas Special Committee on Covid-19 Response on the impact of COVID-19 on persons with disabilities and the disability sector (June 2020) 21.

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The successes of the Strategy to date can be described as many small steps towards the goal.

For example, the Make Work Pay Report from 2017 raised the maximum income which qualifies for full disability allowance. This means people who claim this allowance can earn more from their job without fearing the loss of their benefits. This resulted in a modest increase in employment by people on this allowance. This shows that, given the rational structural incentives, people on welfare payments are interested in employment.

Additionally, there have been steps towards addressing the weak bridge between education and post-school options; the NCSE has conducted research on this transition and SOLAS has produced “A Conceptual Framework of Universal Design for Learning (UDL) for the Irish Further Education and Training Sector”.305 As a result, there has been an increase of 4,000 learners, to a total of 13,098, enrolled in further education from 2018 to 2019. More specifically, there has been an 88% increase by students with physical or mobility disabilities, 53% with vision impairment, and 40% who are hard of hearing.306 Furthermore, there have been four relatively small programs created to encourage employer involvement in these efforts. Lastly, the National Transport Authority have made improvements in public transportation for accessibility, including 16% of vehicles being made wheelchair accessible, compared to 4% in 2014. Additionally, six pilot community car schemes have been approved in Cork, Kerry (2x), Offaly, Longford, and Mayo.307 Areas for improvement All of these improvements are positive but certainly not enough. This is evident as the employment rate for people with disabilities has only risen 3% since the Strategy commenced.308 This is the fourth lowest employment rate of its kind in Europe.309 The study, conducted by the NDA, re-emphasized Ireland’s failure to provide appropriate education and

305

Mary Quirke and Patricia Mccarthy, ‘A Conceptual Framework of Universal Design for Learning (UDL) for the Irish Further Education and Training Sector’ (2020) SOLAS. 306 Comprehensive Employment Strategy NDA Year End Assessment 2020 11.

307 Comprehensive Employment Strategy NDA Year End Assessment 2020 12.

308 ‘Identification of Skills Gaps Among Persons With Disabilities And Their Employment Prospects’ (Dublin, 2021) Economic & Social Research Institute.

309 ‘Identification of Skills Gaps Among Persons With Disabilities And Their Employment Prospects’ (Dublin, 2021) Economic & Social Research Institute.

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post-education transition for people with disabilities. As such, the 2020 NDA report on the Strategy called for improvements in this area.

Specifically, the 2020 report called upon the Government to address the lack of progress in Career Guidance for learners in school settings. Most people with disabilities do not progress past junior cycle.310 This cannot be attributed to the proportion of people with learning or intellectual disabilities, although this group experiences particularly low educational outcomes.311 This represents a significant failure in the overall preparedness by the education system of this group for employment, which Ireland seeks to address with the Strategy. It has not yet effectively done so.

In the meantime, the NDA report encourages the Further Education and Training (FET) sector to be a more accessible pathway to mainstream employment. One barrier is that while 49.2% of learners in FET have an education level of lower secondary or below, available funding only covers post leaving certificate courses; this further marginalizes people with disabilities who face an accessibility issues within the secondary school system. Furthermore, the NDA recommends including a target for persons with disabilities accessing apprenticeships and other FET options. It also recommends that there be a Disability Consultative Committee established within the national authority responsible for FET. Lastly, it highlights the opportunity to construct a realistic bridge between FET and higher education for people with disabilities.

Overall, FET presents an accessible route to employment for people with disabilities while the mainstream education system undergoes reforms.312 Thus, it should adopt an active role in providing learning and training for people with disabilities in order to prepare them for a job.

Furthermore, the report illuminates the fact that although there has been a “national programme for employment supports for persons with disabilities” that has been approved for a few years, it has not yet been set into motion. This is similar to the “early engagement process”, which is a program meant to invite young people to engage with public employment service. This plan

310

‘Identification of Skills Gaps Among Persons With Disabilities And Their Employment Prospects’ (Dublin, 2021) Economic & Social Research Institute.

311 ‘Identification of Skills Gaps Among Persons With Disabilities And Their Employment Prospects’ (Dublin, 2021) Economic & Social Research Institute.

312 National Disability Authority, ‘A qualitative study of how well young people with disabilities are prepared for life after school’ (June 2017).

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was finished in 2018 but still has not been published. The NDA report reflects a lack of guidance from the Government on why these plans have not been followed through.313 Conclusions on the Strategy The Strategy is an appropriate recognition of the strong need for employment reform for people with disabilities in Ireland. However, it is questionable whether it is being deployed with the priority it needs. It would be reasonable to say that, in any case, Ireland is behind on its overall goal of reaching proportionally equal workforce representation by people with disabilities. This is particularly true upon comparison to the rest of the EU. The deployment of the Strategy presents room for improvement in early education, which must adapt to the needs of every student. This is possible with seamless incorporation of universal design in education, which has yet to be seen. The education-employment link must be supported by early career guidance programs and supported employment schemes. These programs are eagerly awaited by students with disabilities. This appears to be the most significant deficiency in the execution of the Plan.

Other areas for improvement include shifting the mindset of employers towards employees with disabilities; action has been taken but it is unclear whether outcomes have been reached.

Another issue is transportation, particularly in rural Ireland. Remote working presents a possible solution for some, but transportation is still crucial. Lastly, the priority of making work pay still presents room for opportunity as people who receive disability payments, particularly later in life, are disincentivized from working due to the low income threshold for revocation of these benefits.

III.

International Comparative : Legal Models for Workplace Inclusion

This Section will comparatively look at the legal models for workplace inclusion regarding the needs and provisions for people that have disabilities. This section will compare the legal models in the United Kingdom, Ireland, and Australia The United Kingdom In the UK, employers cannot discriminate against a person with disabilities under The Equality Act 2010. The Equality Act 2010 imposes a duty to provide reasonable adjustments for people

313

OECD, ‘Disability, Work and Inclusion in Ireland’ (September 2021).

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with disabilities. According to the Act, reasonable steps should be taken to avoid putting people with disabilities in a disadvantaged position, essentially, if a practice puts a person with disabilities at a substantial disadvantage in comparison to a person without a disability, actions should be taken to minimise the disadvantage.314 Further under the Equality Act 2010, employers have a duty to reduce any disadvantage caused to people with disabilities where the disadvantage is caused by the inclusion of a physical feature. Likewise, in an instance where auxiliary aid is necessary to reduce a disadvantage being caused, reasonable steps should be taken to provide the auxiliary aid. When the requirements relate to the provision of information, the employer has a duty to take reasonable steps to provide such information in an accessible manner .

Where it is necessary to make reasonable adjustments to meet the needs of a person with disabilities, the onus is on the employer to make the necessary adjustments and not on the person with disabilities. For instance, the person with disabilities cannot be held responsible for the related costs created by the employer’s compliance with the duty to make adjustments.

Another legislation that protects the employment rights and entitlements of people with disabilities in the UK is the Health and Safety at Work Act 1974 (HSWA 1974). This Act lays out the general duties of employers to all their employees which includes employees with disabilities. This Act imposes duties on employers to ensure that the workplace is a place that is safe for employees and to ensure that employees are protected from risks connected with the work roles and responsibilities of the job.

Australia In Australia, employers have a duty to ensure that the workplace is safe , secure, and free of discrimination. These duties are enforced through legislation, industrial instruments, and the common law.

National Employment Standards (NES) are terms and conditions that protect the rights of employees in the workplace, these rights are derived from the Fair Work Act 2009, which is one of the most important sources of employment law in Australia. The Fair Work Act 2009 provides the minimum conditions for employees in parts of Australia. However, the Fair Work

314

Health and Safety at Work Act 1974: An Overview ( InBrief.co.uk, 2021) <https://www.inbrief.co.uk/employees/health-and-safety-at-work-act/> accessed 3 November 2021.

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Act 2009 does not cover all regions of Australia, for instance ,Western Australia, has its own state-based legislation regulating workplace standards.315 The Fair Work Act 2009 covers requests for flexible working arrangements for people with disabilities (Division 4 (65)). This Act includes a special national minimum wage for people with disabilities (Part 2-6, Division 1 (s. 282)) and protects against discrimination against people with disabilities (Division 5 (s. 351)) . According to the Act, an employer must not take adverse action against an employee or prospective employee because of the person’s physical or mental disability . Further, it ensures that employment cannot be terminated on grounds of physical or mental disability.

The Disability Discrimination Act 1992 is another piece of legislation that protects the rights of people with disabilities in the workplace. This Act is more focused on specifically protecting people with disabilities from discrimination. It covers areas relating to work , accommodation, education, access to premises, clubs and sport. According to Part 2 Division 1 (15) of the Act, an employer or a person acting on behalf of an employer is prohibited from discriminating against a person with disabilities on the ground of the person’s disability during the hiring process. i.e., determining who should be offered employment. Discrimination is also prohibited in the terms and conditions in which employment is offered. (Part 2 Division 1 (15(1))). Likewise, this Act states that “it is unlawful for an employer or a person acting on behalf of the employer to discriminate against a person on the grounds of disability ” in the terms and conditions of employment or by “limiting” the employees access to transfer or training , opportunities for promotion , or any other benefits associated with employment. Part 2 Division 1 (15(2))).

Additionally, cases of unlawful discrimination under this law can be brought to the Australian Human Rights Commission due to the powers of the Australian Human Rights Commission Act 1986.

Analysis

315

Fair Work Ombudsman, ‘Employment Conditions’ (2021) <https://www.fairwork.gov.au/employmentconditions/protections-at-work#adverse-action> accessed 2 November 2021; Fair Work Commission ‘National employment standards’ <https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/nationalemployment-standards> accessed 3 November 2021; Australian Human Rights Commission ‘The Rights of People with Disabilities: Areas of Need for Increased Protection: Chapter 2: Employment’ (2021) <https://humanrights.gov.au/our-work/rights-people-disabilities-areas-need-increased-protection-chapter-2employment> accessed 8 November 2021.

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From a comparative view, the countries explored have quite similar legal models in that they all provide legislation that establishes entitlements for people with disabilities in employment and the workplace. In the UK we see that it is expected that reasonable adjustments should be made for people with disabilities in a way that minimises disadvantages as much as possible.

Similarly , in Australia , through afore-mentioned legislations, there are provisions made to accommodate and make adjustments in the workplace for people with disabilities. Likewise, Irish legislation provides for the provision of necessary accommodations and adjustments to improve the inclusion and participation of people with disabilities in the workplace. Another main similarity between these countries’ legal models is that they all provide legislations that strictly and explicitly prohibit the discrimination of people with disabilities in employment which applies from the recruitment process, the course and termination of employment.

With regards to possible points of improvement, according to The Journal of Nursing Administration in an article tackling the issue regarding creating a workplace that is disability inclusive, it is recommended that adjustments for people with disabilities should be made universal throughout the workplace rather than based on case-by-case basis. Another recommendation is that employers should work towards making the job roles available flexible and adaptable, if possible, for instance creating new tasks or tasks that can be adapted to a person with a disability.316 Chapter Conclusion Within an Irish context there remains significant work to be done in ensuring the effective inclusion of persons with disability within employment. Recommendations, based on his chapter’s research, which could help see this become a reality strategies to see this become a reality consist of policy schemes focusing on the transition from secondary school to further education for persons with disabilities, the commencement of proposed employment support systems, the implantation of universal design across workplaces and introducing flexible work arrangements more broadly across the employment sector.

316

S Matt, S Fleming and D Maheady, ‘Creating Disability Inclusive Work Environments for Our Aging Nursing Workforce’ [2015] 45(6) JONA: The Journal of Nursing Administration 325.

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Chapter 8: Social Welfare Muireann Carton, Zoe Timmons

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Introduction This chapter will analyse the Irish social welfare system in the context of protecting the rights of people with disabilities. It will set out the supports available for people with disabilities within the social welfare system. Furthermore, it will provide a brief overview of the development of the Irish welfare state throughout the late 19th to early 21st century while undertaking a comparative analysis of the Irish social welfare system and international social welfare systems in the context of disability support. The chapter will examine areas for reform regarding disability-specific social welfare supports, and how the system might better vindicate the rights of people with disabilities looking to the future of social protection.

Overview of Irish Social Welfare Supports The social welfare system in Ireland provides a complex variety of direct and indirect payments to help people with disabilities and their carers to manage the costs of living. The Disability Allowance, the Blind Pension and the Carer’s Allowance are social ‘assistance’ payments offered irrespective of Pay Related Social Insurance (PRSI) contributions.317 There are also social ‘insurance’ schemes, payment of which is contingent on PRSI contribution, including the Partial Capacity Benefit, Disablement Benefit, and the Carer’s Benefit. A range of other schemes provide additional support for costs including health and housing.318 The Disability Allowance is a weekly payment of a maximum of €208,319 with an increased payment available for dependent children, and any spouse, civil partner, or cohabitant with an income below a certain threshold. To be eligible for the disability allowance, a person must be ‘substantially restricted’ from working in employment which would be otherwise suitable for a person of their age, qualifications and experience, as a result of an injury, disease, or disability (physical or mental) lasting or expected to last for at least one year. They must also be habitually resident in Ireland, be over 16, and satisfy a means test.320 The first €140 of a person’s weekly income is not included in the means test, 50% of income from €140-350 is included, and 100% of any income over €350 a week is included.321 This €350 cap will be

317 Department of Social Protection, Statistical Information On Social Welfare Services Annual Report 2020 (DPS, 2020) <file:///Users/muireanncarton/Downloads/152643_d6371436-0518-471e-9674-a2b6a92739a2.pdf> accessed 7 January 2022.

318 Disability Federation of Ireland, Budget 2022 Key Measures (DFI, 2021) <https://www.disabilityfederation.ie/assets/files/pdf/budget_2022_key_measures.pdf> accessed 7 January 2022.

319 Social Welfare Consolidation Act 2005, s 211.

320 Social Welfare Consolidation Act 2005, s 210.

321 Social Welfare Consolidation Act 2005, s 211.

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increased to €375 from June 2022,322 but this increase may benefit less than 2% of the recipients of the Disability Allowance.323 There were 152,580 recipients of the Disability Allowance in 2020,324 but qualifying for the Disability Allowance can be difficult. About half of all applications are initially refused, although approximately 66% of refusals which are appealed partially or wholly succeed in their appeal.325 This high rate of success on appeal could be a function of a selection bias indicating that the strongest cases get appealed; however, it could also indicate a tendency on the applicants behalf to omit key information in the original application which would be included upon appeal.

The Blind Pension is also a weekly payment of a maximum of €208,326 with an increased payment for dependents. To be eligible for the Blind Pension, a person must be unable to engage in insurable employment or self-employment due to visual impairment, be habitually resident in Ireland, be aged over 18 and under pensionable age, and satisfy a means test.327 The income disregarded for the means test is the same as currently for the Disability Allowance.328 There were 1,075 recipients of the Blind Pension in 2020.329 There have been marginal increases in the Disability Allowance and Blind Pension in the last Budget - from €203 to €208 per week, and an increase of €2-3 in the additional payments for dependents. However, these increases do not come close to rectifying the cuts made to social

322

‘Disability Allowance’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/disability_and_illness/disabilit y_allowance.html> accessed 7 January 2022.

323 Disability Federation of Ireland, Budget 2022 Key Measures (DFI, 2021) <https://www.disabilityfederation.ie/assets/files/pdf/budget_2022_key_measures.pdf> accessed 7 January 2022.

324 Department of Social Protection, Statistical Information On Social Welfare Services Annual Report 2020 (DPS, 2020) <file:///Users/muireanncarton/Downloads/152643_d6371436-0518-471e-9674-a2b6a92739a2.pdf> accessed 7 January 2022.

325 Noel Baker, ‘Almost half of all applications for Disability Allowance initially turned down’ Irish Examiner (Irish Examiner Online, 1 March 2021) <https://www.irishexaminer.com/news/arid-40235792.html> accessed 7 January 2022.

326 Social Welfare Consolidation Act 2005, s 161(b).

327 Social Welfare Consolidation Act 2005, s 161.

328 Social Welfare Consolidation Act 2005, s 161(b).

329 Department of Social Protection, Statistical Information On Social Welfare Services Annual Report 2020 (DPS, 2020) <file:///Users/muireanncarton/Downloads/152643_d6371436-0518-471e-9674-a2b6a92739a2.pdf> accessed 7 January 2022.

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welfare payments during the Euro-crisis austerity period.330 Importantly, the payments are still less than a person working part-time twenty hour week for minimum wage, which would work out at €210,331 and well below the €502.52 weekly wage that the Living Wage Technical Group reported as needed to cover living and rent costs in Ireland in 2021/22.332 The Carer’s Allowance is a payment made to people who are looking after someone who needs full-time support due to disability, illness, or age.333 The rate varies according to whether the carer is 66 years old or not, and according to whether they are caring for one or more people.334 There are increases in the payment for each of the carer’s dependent children.335 There were 88,906 recipients of Carer’s Allowance in 2020.336 A carer must be habitually resident in Ireland,337 and a means test is part of the eligibility requirements.338 The Carer’s Allowance is a broad support scheme catering to a diverse range of needs and circumstances, and it is not appropriate support for many. The maximum rate, for an over 66year-old caring for two people, is €393 per week. This rate is well below a living wage in Ireland, at €502.52 meaning that it would be insufficient support on its own for full time carers with no other income. The application process requires extensive documentation and there is a long processing time for applications.339 People seeking Carer’s Allowance may have to apply for interim payments from other social payments such as the Supplementary Welfare Allowance.340 This Allowance is less than the already modest Carer’s Allowance, and thus

330

Charles O’Sullivan and Donna McNamara, ‘The ‘Necessity' of Austerity and its Relationship with the UN Convention on the Rights of Persons with Disabilities: A Case Study of Ireland and the United Kingdom’ (2021) 21(1) Human Rights Law Review 157.

331 Department of Enterprise, Trade and Employment, ‘National Minimum Wage will increase 1 January 2022’ (gov.ie, 2021) <https://www.gov.ie/en/publication/1786c-national-minimum-wage-will-increase-1-january2022/> accessed 7 January 2022.

332 Living Wage Technical Group, ‘Living Wage Annual Paper 2021/22’ (livingwage.ie 2022) <https://www.livingwage.ie/download/pdf/living_wage_annual_paper_2021-22.pdf> accessed 7 January 2022.

333 Social Welfare Consolidation Act 2005, s 179.

334 Social Welfare Consolidation Act 2005, s 181.

335 Social Welfare Consolidation Act 2005, s 181.

336 Department of Social Protection, Statistical Information On Social Welfare Services Annual Report 2020 (DPS, 2020) <file:///Users/muireanncarton/Downloads/152643_d6371436-0518-471e-9674-a2b6a92739a2.pdf> accessed 7 January 2022.

337 Social Welfare Consolidation Act 2005, s 180(2) 338 Social Welfare Consolidation Act 2005, s 181(2) 339 ‘Carer’s Allowance’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/carers/carers_allowance.html#l 6abfb> accessed 7 January 2022.

340 Carer’s Allowance’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/carers/carers_allowance.html#l 6abfb> accessed 7 January 2022.

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there is an even greater risk of poverty for those needing to rely on such payment during the application process.341 Partial Capacity Benefit is a payment for people who have returned to work with reduced capacity following an absence due to illness or injury.342 The Partial Capacity Benefit payment is a maximum of €208 for people with ‘profound’ reductions in their capacity to work.343 The Disablement Benefit is a compensatory payment following loss of function after an accident at work, of up to a maximum of €239 per week for people if a person is wholly unable to work.344 Disablement Benefit can be received in conjunction with most other social welfare payments.345 The Carer’s Benefit is a payment offered for people who leave employment to provide fulltime care for someone, given for up to 104 weeks (2 years).346 The payment is up to €225 for people who are caring for one person, and up to €337.5 for those caring for more than one person.347 However, recipients of Carer’s Benefit can work for a maximum of eighteen and a half hours per week, and earn a maximum of 332.50euro per week. The scheme is complemented by a right to carer’s leave from employment for up to 104 weeks. There were 3,698 recipients of Carer’ Benefit in 2020.348

341 ‘Supplementary Welfare Allowance’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/supplementary_welfare_schem es/supplementary_welfare_allow.html> accessed 7 January 2022.

342 ‘Partial Capacity Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/disability_and_illness/partial_c apacity_benefit.html> accessed 7 January 2022.

343 ‘Partial Capacity Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/disability_and_illness/partial_c apacity_benefit.html> accessed 7 January 2022.

344 ‘Disablement Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/disability_and_illness/disable ment_benefit.html#l62fd2> accessed 7 January 2022.

345 ‘Disablement Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/disability_and_illness/disable ment_benefit.html#l62fd2> accessed 7 January 2022.

346 ‘Carer’s Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/carers/carers_benefit.html> accessed 7 January 2022.

347 Carer’s Benefit’ (Citizens Information, 5 January 2022) <https://www.citizensinformation.ie/en/social_welfare/social_welfare_payments/carers/carers_benefit.html> accessed 7 January 2022.

348 Department of Social Protection, Statistical Information On Social Welfare Services Annual Report 2020 (DPS, 2020) <file:///Users/muireanncarton/Downloads/152643_d6371436-0518-471e-9674-a2b6a92739a2.pdf> accessed 7 January 2022.

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These monetary payments are all well below the cost of living in Ireland, but there are some other specific supports available. Local social housing, the Housing Assistance Payment (HAP), and rent supplements aim to help people to have secure and affordable homes.

However, the insufficiency of housing supports in Ireland is well-documented across vulnerable categories of the population,

349

but is particularly significant for people with

disabilities who may not only have modest incomes but have additional needs such as home modifications and proximity to healthcare services.350 The availability of affordable and appropriate housing outside of a residential setting is key to realizing people’s right to independent living.351 Medical cards and drug payment schemes help people with disabilities to afford healthcare costs. However, there is significant, poorly documented and unmet need for other communitybased supports such as personal assistance, respite services, home support, and residential care in community settings.352 This lack of practical support compounds hardship for carers and persons with disabilities, who are not only insufficiently resourced but receive insufficient financial support to seek private support. Much of the medical needs of people with disabilities are met by voluntary organisations which struggle to staff and fund themselves.353 Free travel, education grants, and fuel allowance, which come with qualifying social insurance and assistance payments such as the Carer’s Allowance and Blind Pension aims to help people to meet the cost of living. Most of these payments are not included in means tests for the Disability Allowance, Blind Pension, Carer’s Allowance, and other social insurance schemes, which is welcome. However, notwithstanding all of these social welfare provisions, having a disability is still associated with an increased risk of poverty and housing deprivation.354

349 Helen Russeell, Ivan Privalko, Frances McGinnity and Shannen Enright, Monitoring adequate housing in Ireland (Irish Human Rights and Equality Commission, 2021).

350 Disability Federation of Ireland, ‘Submission on Disability Action Plan Framework’ (DFI, 2021) <https://www.disability-federation.ie/assets/files/pdf/dfi_submission_on_disability_action_plan_2022-25.pdf> accessed 7 January 2022.

351 Disability Federation of Ireland, ‘Submission on Disability Action Plan Framework’ (DFI, 2021) <https://www.disability-federation.ie/assets/files/pdf/dfi_submission_on_disability_action_plan_2022-25.pdf> accessed 7 January 2022.

352 Disability Federation of Ireland, ‘Submission on Disability Action Plan Framework’ (DFI, 2021) <https://www.disability-federation.ie/assets/files/pdf/dfi_submission_on_disability_action_plan_2022-25.pdf> accessed 7 January 2022.

353 Disability Federation of Ireland, ‘Submission on Disability Action Plan Framework’ (DFI, 2021) <https://www.disability-federation.ie/assets/files/pdf/dfi_submission_on_disability_action_plan_2022-25.pdf> accessed 7 January 2022.

354 Helen Russeell, Ivan Privalko, Frances McGinnity and Shannen Enright, Monitoring adequate housing in Ireland (Irish Human Rights and Equality Commission, 2021).

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Placing the Social Welfare System in Context The contemporary Irish welfare state has undergone significant transformation since its origins in the mid-1800s as a means to eradicate destitution. Beginning with the 1838 Poor Relief (Ireland Act),355 and developing throughout the 20th century, a basic framework of supports took shape: old age pensions in 1908356; social insurance in 1911, followed by unemployment and sickness benefits soon thereafter.357 Welfare state development was geared towards poverty alleviation, and it was not until the 1952 Social Welfare Act that statutory disabilityspecific welfare supports were introduced.358 The 1952 Act, ‘integrated and improved the existing social insurance scheme.’359 The Act made provision for a Disability Benefit – available only to those who had been in insurable employment. A 1952 report recognised ‘the special problem presented by the cases of persons over 16 years of age who are without means and unable by reason of chronic illness or disability to provide for their own maintenance.’360 Legislation to address the aforementioned concern was introduced in the 1953 Health Act, which established the Disabled Persons Maintenance Allowance (DPMA), set at a maximum of one pound per week.

Though a welcome development, this early social protection model was not without challenges.

A recent case study of Veronica L., who died of starvation in the 1960s ‘…while the recipient of a Disabled Person’s Maintenance Allowance…’ comments that the case serves to ‘spotlight the fragmentary and insufficient nature of welfare provision’ at the time.361 Progress continued to be made throughout the 20th century, most notably with the Health Act 1970, which provided for the payment of maintenance allowance to disabled persons over 16 years of age, and the publication of the 1984 Green Paper, Towards a Full Life, which articulated a more inclusive policy for people with disabilities.362

355

Poor Relief (Ireland) Act 1838.

Old Age Pension 1908.

357 National Insurance Act 1911.

358 Social Welfare Act 1952.

359 Mel Cousins, The Irish Social Welfare System: Law and Social Policy, (Round Hall 1995) [20] 360 Government of Ireland (1952), Proposals for Improved and extended health services, Department of Health, Dublin: Government Publications, [16] 361 Kilgannon, David, “The death of Veronica L.: intellectual disability and statutory welfare in mid twentiethcentury Ireland,” (2021) 45 Irish Historical Studies 81.

362 Government of Ireland (1984), Towards a Full Life: Green paper on services for Disabled People, Department of Health, Dublin: Government Publications.

356

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In the 1990s and early 2000s, disability policy was marked by innovation – the Disability Allowance replaced the DPMA in 1996, shifting from a contingency-based scheme (with limited capacity) to a demand-based one (open to all eligible). There has been an upward trend in spending over the past two decades: disability expenditure increased from €825.9m in 2000363 to €4,448.6 billion in 2019.364 The 2021 annual expenditure on Disability Allowance is estimated at €1.8 billion.365 Whilst robust, recent reports point to deficiencies in the system, raising the issue of reforms and the future direction of the Irish social welfare system.

Comparison with International Social Welfare Schemes From an international perspective, Ireland’s social welfare system provides robust support for people with disabilities and provides career support, while there is room to learn from other countries elsewhere.

Ireland is among a minority of EU countries to facilitate long-term caregiving without any cut in a carer’s pension entitlements, this is a positive entitlement as carer’s can lose up to 19% of their pension in Latvia, and 22% in Slovakia.366 However, Ireland is an outlier in the northwest of Europe (if not in the EU as a whole), because public expenditure on long-term care is less than the value of informal long-term care given in the state,367 meaning that there is unpaid and uncompensated caregiving taking place. There is room for Ireland to consider increasing the Carer’s Allowance and increasing the amount of professional support for carers in order to reduce the gap between care value and care expenditure, and to bring the state into line with neighboring European countries.

The cuts which Ireland imposed on social welfare during the economic crisis from 2008 to 2014 were also unexceptional by international standards.368 However, Ireland’s sluggishness in restoring social welfare payments to pre-Eurocrisis levels may mean that they are failing to vindicate the right to a minimum standard of living enshrined in Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD). The fact that the Pandemic Unemployment

363

DEASP, 2000 Social Protection Annual Statistics Report.

DEASP, 2019 Social Protection Annual Statistics Report 365 DEASP, ‘Government publishes the Cost of Disability Report,’ 7 December 2021.

366 Commission, ‘Study on exploring the incidence and costs of informal long-term care in the EU’ VC (2019/0227) 122.

367 Commission, ‘Study on exploring the incidence and costs of informal long-term care in the EU’ VC (2019/0227) 16, 134, and 148.

368 Charles O’Sullivan and Donna McNamara, ‘The ‘Necessity' of Austerity and its Relationship with the UN Convention on the Rights of Persons with Disabilities: A Case Study of Ireland and the United Kingdom’ (2021) 21(1) Human Rights Law Review 157.

364

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Payment (PUP) was higher than the Disability Allowance, Blind Pension, or Carer’s Allowance indicates that these payments can be increased where there is the political will. Such an increase would be more than a political statement however – it would go some way to reinstating people with disabilities Article 28 rights, which were restricted by austerity.

Future Directions and Recommendations for Reform Data from the EU-SILC indicates the at risk of poverty or social exclusion (AROPE) rate for people with disabilities in Ireland was 37.8% in 2019, compared to the estimated EU-28 average of 29.1%.369 The figures demonstrate that ‘poverty rates for people who self-report a disability are among the highest in Europe.’370 The Roadmap for Social Inclusion 2020-2025 outlines ambitions to reduce the AROPE figure to ‘no more than 22.7% by 2030.’371 The INDECON report on the Cost of Disability may prove influential in reaching these ambitions and in informing future policy, noting that social welfare payments fail to meet the increased cost of disability, estimated to range from ‘€9,600 - €12,300 per annum and for those with limited disabilities from €8,700 – €10,000 per annum.’372 In light of this, the present system could benefit greatly from reform – as Murphy stresses, ‘Ireland could do significantly more to address inequality,’ which ‘could be done without threatening efficiency.’373 Social welfare reform ought to adopt a ‘multifaceted approach involving increased cash payments, enhanced access to service provision and specific targeted grant programmes.’374 The Indecon report urges that ‘[N]ew ways of working, new policy instruments and institutional innovations are required if additional resources are to be effective in significantly improving on social outcomes.’375 Redevelopment of both the structure and the underlying objectives of the welfare system is crucial, and steps are being taken to spur such innovative reform, as detailed below.

369

Eurostat ‘People at risk of poverty or social exclusion by level of activity limitation, sex and age’ <http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=hlth_dpe010&lang=en> accessed 2 December 2021.

370 Government of Ireland, ‘Roadmap for Social Inclusion 2020-2025: Ambition, Goals, Commitments’ p.55.

371 Government of Ireland, ‘Roadmap for Social Inclusion 2020-2025: Ambition, Goals, Commitments’ p.56.

372 Indecon, The Cost of Disability in Ireland, (2021) p.135.

373 Mary Murphy, “The politics of redirecting the social policy – towards a double movement,” in Transforming Ireland: Challenges, Critiques, Resources, (Manchester University Press 2010) [5] 374 Mary Murphy, “The politics of redirecting the social policy – towards a double movement,” in Transforming Ireland: Challenges, Critiques, Resources, (Manchester University Press 2010) [5] 375 NESC, The Developmental Welfare State, 2005, xv.

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In regards to responding to the core issue of the rising cost of disability, the report notes that the current system ‘can be efficiently used to provide income supplements to individuals with disabilities in Ireland to address the rising cost of disability… [at] limited additional administrative costs.’376 The NDA have argued it is ‘a small amount to pay to advance the cause of equality,’ in proposing the establishment of a Cost of Disability Payment, ‘designed to facilitate participation.’377 It has also been recommended that core social protection rates be increased, following the VPSJ Minimum Essential Standard of Living (MESL) recommendations, an increase of €9.80 per annum until 2026.378 Furthermore, Social Justice Ireland recommends the Government commit to implementing benchmarks to maintain social security in line with average earnings in an effort to combat poverty; specifically, a benchmark equivalent 27.5 per cent of average weekly earnings.379 On the question of increasing participation, the 2003 Report of the Working Group on the Review of the Illness and Disability Schemes concluded that a loss of secondary benefits disincentivised employment for those availing of supports.380 Recommendations in the 2017 Make Work Pay report to increase in the earnings threshold for retention of Disability Allowance and the medical card were implemented, indicating a willingness to progress the area of disability welfare to better vindicate the rights of people with disabilities.381 Nonetheless, it is thought that more meaningful supports are necessary to increase participation, such as detailed assessments of employability and work capacity.382 The Government seems attuned to the challenges facing future development of disabilityspecific supports – for instance, a ‘fast-track’ return to benefits system is being designed to allow recipients to restore their benefit should employment prove unsuccessful.383 This would effectively operate as a safety-net, allowing people with disabilities to explore employment 376

NESC, The Developmental Welfare State, 2005, 10.

National Disability Authority, “Report of the Commission on the Status of People with Disabilities: Costs Budgeting for Equality <https://nda.ie/disability-overview/key-policy-documents/report-of-the-commission-onthe-status-of-people-with-disabilities/a-strategy-for-equality/a-strategy-for-equality-report-of-the-commissionon-the-status-of-people-with-disabilities/costs-budgeting-for-equality/> accessed 24 January 2022.

378 Vincentian Partnership for Social Justice Minimum Essential Budget Standards Research Centre, Submission to the DSP, MESL Pre-Budget 2022, (2021) p.3.

379 Social Justice Ireland, Policy Briefing, Budget Choices 2021, September 2020, p.9.

380 Department of Social, Community and Family Affairs (2003b), Report of the Working Group on the Review of the Illness and Disability Payment Schemes, Dublin: Stationery Office.

381 DEASP (2017), Make Work Pay for People with Disabilities: Report to Government 2017, Make Work Pay Interdepartmental Group, Dublin: Department of Employment Affairs and Social Protection.

382 NESC, The Developmental Welfare State, 2005.

383 National Disability Authority, Independent assessment of progress under NDIS 2017-2018, (2019).

377

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without fear of disentitlement to welfare supports which may later become necessary – thereby progressing the aim of increased participation and integration of income supports with employment services.

A survey of people living with disabilities in Ireland unveiled the difficulties in accessing supports: one applicant stated that “[G]etting disability allowance was a nightmare and I live in fear of having to go through it all again,” whilst another felt “the process is not user friendly.”384 Notably, disability allowance appeals accounted for more than a quarter of social welfare appeals in 2020, totalling an increase of 6.7% from 2019. Of the 7,410 appeals lodged, approximately 63% were allowed, partly allowed or revised. These figures underscore the need for reform in the application and appeals process, which is gradually being addressed: the Department have undertaken to redesign the application form for the disability allowance with a view to make the process simpler and more efficient, which was due to be introduced ‘before the end of 2021.’385 In addition, it has been recommended that the Department review the appeals and applications process to ensure it is sufficiently clear for claimants the need to ‘supply all necessary information to assess eligibility when they are making a claim.’,386 to make the application process more user-friendly.

Such reforms to the social welfare system may help to realise an Irish society in which people with disabilities can enjoy full participation in society, without risk of poverty or social exclusion.

Chapter Conclusion This chapter has provided an analysis of the supports in the Irish social welfare system which may vindicate the rights of people with disabilities.

It has outlined the social assistance payments, the social insurance payments, and the other specific-need assistance which is available to support people with disabilities and their carers in Ireland. The outline noted difficulties in application and appeals procedures, shortcomings in payment rates, and insufficiency in specific supports in health and housing. The chapter then 384

Indecon, The Cost of Disability in Ireland, (2021) p.135.

Office of the Comptroller and Auditor General, Report on the Accounts of the Public Services 2020, Chapter 10: Management of social welfare appeals.

386 Office of the Comptroller and Auditor General, Report on the Accounts of the Public Services 2020, Chapter 10: Management of social welfare appeals.

385

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considered the current social welfare scheme in a historical context and noted great improvement in social welfare provision in the last two and a half decades.

Placed in comparative perspective, the Irish social welfare system was not found to be an outlier

by European and international standards. However, public expenditure on long-term care could be increased in line with best practice in northwest Europe, and other welfare payments could be reinstated to bring the State back in line with the requirements of Article 28 of the CRPD. This chapter noted a need for reform to decrease the risk of poverty or social exclusion for people with disabilities. Reforms of payment rates, support service availability, employment facilitation, and application procedures were considered.

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Chapter 9: Assisted Decision-Making (‘Capacity’) Act 2015 Julia Best, Isabelle Healy, Alisa Pasanen

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Introduction The Assisted Decision-Making (Capacity) Act 2015 (hereafter ‘The Act’) represents significant legislative reform in the area of disability rights. Upon its enactment, the Act was described by Inclusion Ireland as ‘a seismic cultural shift away from a paternalistic and ‘best interests’ approach …. to a rights-based approach of choice, control and consent’.387 The Act made numerous significant changes to the traditional system of wardship, which has consistently come under critique for being inflexible in its assessment of capacity, overly protective, and discriminatory.388 The Act establishes a modern statutory framework of support for adults who have impairments which may impact decision-making capacity. It centres the individual’s will and preferences and aims to provide practicable support to people who have difficulties with decision-making. However, the Act has yet to be commenced, and Ireland’s traditional wardship system, as governed by the Lunacy Regulation Act 1871, technically remains in operation.389 This chapter will examine the introduction and impact of the Assisted Decision-Making (Capacity) Act 2015 in Ireland. It will consider the previous system of wardship in Ireland and how the Act has altered this system, with particular reference to the assessment of capacity under the Act, forms of assisted decision making under the Act, powers of attorney, and advanced healthcare directives. Lastly it will consider the upcoming implementation of the Act. Wardship in Ireland The following section will outline the traditional system of wardship in Ireland, which is currently still in operation, and its impact.

Defining Wardship The term ‘taken into wardship’ describes the scenario where an individual is deemed to lack capacity or unable to manage their own affairs, thus, according to the law, court intervention 387

Decision Support Service, Statement to Joint Oireachtas Committee on Disability Matters, 20 May 2021.

The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 20 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 Nov 2021.

389 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021).

388

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is required.390 A decision of wardship is made by the President of the High Court and is based upon medical evidence relating to mental capacity or age.391 Where an individual is made a ‘Ward of Court’, a ‘Committee’ is appointed to act on behalf of the ward and manage their day-to day affairs. 392 Notably, the Supreme Court has stated that where a person is made a Ward of Court, it is the Court who is afforded with the jurisdiction to decide on matters relating to the ward, including matters of estate.393 Furthermore, in exercising such jurisdiction the court is subject to the relevant constitutional provisions, and is bound to consider the best interests of the Ward.394 Accordingly, whilst the Committee plays a role in managing the property of the ward and decisions relating to the ward’s personal matters, the ultimate responsibility lies with the Court.395 The term ‘Ward’ is defined in Order 67, Rule 1 of the Rules of the Superior Court as follows: ‘a person who has been declared to be of unsound mind and incapable of managing his person or property and includes, where the context so admits, a person in respect of whom or whose property an order has been made under section 68 or section 70 of the Lunacy Regulation (Ireland) Act 1871.’396 As afore-mentioned, this system of wardship is governed by Lunacy Regulation (Ireland) Act 1871, and until the commencement of the Act, it will remain in operation. We note that the Act of 1871 is vague, derogatory in nature and perpetuates antiquated attitudes about persons with disabilities.397 Following the commencement of the 2015 Act, no further applications for

390

‘Ward of Court’ (Citizens Information, 26 March 2021) <https://www.citizensinformation.ie/en/health/legal_matters_and_health/wards_of_court.html#> (Citizens Information, 26 March 2021) accessed 14 November 2021.

391 Ward of Court’ (Citizens Information, 26 March 2021) <https://www.citizensinformation.ie/en/health/legal_matters_and_health/wards_of_court.html#> (Citizens Information, 26 March 2021) accessed 14 November 2021.

392 The Courts Service of Ireland, ‘Wardship-Adults’ <https://www.courts.ie/wardship-adults> accessed 14 November 2021.

393 In the Matter of a Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79.

394 In the Matter of a Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79.

395 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 19 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021.

396 The Rules of the Superior Courts, Order 67, Rule 1 S.I. No. 15/1986.

397 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 12 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 12 January 2022.

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wardships can be made, and depending on the individual circumstances, current wards will either be able to have their autonomy restored, or they will transition into the new supports provided by the 2015 Act.398 However, due to a lack of complete implementation of the Act of 2015, the 1871 Act remains the only current provision for vulnerable adults, and the types of decisions it may dictate are wide-ranging and can be all-encompassing. Decisions such as how to manage personal finances, where to live, and other decisions of a personal nature are dictated by a courtappointed wardship committee.399 There are more than 3,000 people in the wardship system and, according to the Decision Support Service director Áine Flynn, there has been a ‘significant increase’ during the pandemic. 400 The Implications of Wardship The act of bringing an individual under wardship has significant legal and practical consequences. However, there is no policy or piece of legislation which provides for consultation with the Ward when decisions are made on their behalf. Accordingly, it has been asserted that the system of wardship does not encourage meaningful efforts to ascertain the ward’s preferences in their own personal matters, including their place of residence, living conditions and general care.401 An example of this restriction and paternalism is one of the most controversial elements of wardship; the ban on marriage, as governed by the Marriage of Lunatics Act 1811. Under this act, marriages of wards of the court were automatically rendered null and void.402 It was enacted by Westminster and remained in the Irish legal system for 200 years.403 However, the Act of 1811 was repealed by the introduction of the Assisted Decision-Making (Capacity) Act

398

Decision Support Service, Statement to Joint Oireachtas Committee on Disability Matters (20 May 2021).

Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020).

400 Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020).

401 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 73 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021.

402 Marriage of Lunatics Act 1811, 15 Geo 2 c 30.

403 Irish Human Rights and Equality Commission, ‘Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case’ (Irish Human Rights and Equality Commission, 18 November 2020) <https://www.ihrec.ie/human-rights-and-equality-commission-granted-leave-to-appear-asamicus-curiae-in-disability-rights-case/> accessed 8 January 2022.

399

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2015, and was prompted by the recent legal challenge in V. v Minister for Health and Ors.404 This case concerned a man with an intellectual disability, who was prevented from marrying his fiancée following an application to the High Court to have V. made a ward of the court.405 The automatic bar on marriage has been replaced by a capacity-based assessment under the 2015 Act. Changes introduced by the Act The essential idea of assisted decision making is that persons with disabilities have access to assistance in their decision making, allowing them to participate in society on an equal basis.406 In the following section, the pillars of the new system of decision-making capacity will be outlined.

Assessment of Capacity under the Act Legal capacity can be described as the ‘law’s recognition of the validity of a person’s decisions.’407 Under the Act, capacity will be assessed functionally, marking a move away from status-based assessment. The status approach provided for inflexible, all-or-nothing assessments, where a person who lacked capacity to make a specific decision was held to be incapable of making any decisions at all.

A functional assessment, on the other hand, is time-specific and issue-specific — if a person is found to lack capacity in one matter, this will not mean that they will lack decision-making capacity in all matters. The functional approach provides for a rights-based approach rather than one based on medical diagnostics. Furthermore, this approach also accounts for fluctuations in capacity and allows for situations where loss of capacity is temporary or partial.

By virtue of section 3(6) of The Act,

404

Irish Human Rights and Equality Commission, ‘Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case’ (18 November 2020) < https://www.ihrec.ie/human-rightsand-equality-commission-granted-leave-to-appear-as-amicus-curiae-in-disability-rights-case/> accessed 17 January 2022.

405 Mary Carolan, ‘Repeal of 200-year-old law preventing wards of court from marrying is welcomed’ The Irish Times (Dublin, 2 February 2021).

406 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 134.

407 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 45 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021.

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‘The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.’408 Furthermore, a person’s capacity will be assessed ‘on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time’.409 A person will be found to lack capacity if they are unable: ‘(a) to understand the information relevant to the decision, (b) to retain that information long enough to make a voluntary choice, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.’410 The Act presumes that a person has capacity unless the contrary can be proven.411 This principle had been previously affirmed by Laffoy J in Fitzpatrick & Anor v K & Anor.412

Forms of Assisted Decision Making under the Act The Act proposes to change the law to a functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question.413 The Act provides for three distinct types of decision-making assistance, allowing for a range of different support needs. Support can be provided for decisions relating to personal welfare, property

408

Assisted Decision-Making (Capacity) Act 2015, s 3(6).

Assisted Decision-Making (Capacity) Act 2015, s 3(1).

410 Assisted Decision-Making (Capacity) Act 2015, s 3(2).

411 Assisted Decision-Making (Capacity) Act 2015, s 8(2).

412 Fitzpatrick & Anor v K & Anor [2008] IEHC 104.

413 Assisted Decision-Making (Capacity) Act 2015, s 3(1).

409

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and finance, or a combination of both. All forms of assisted decision-making will be supervised by the Director of the Decision Support Service.

1. Assisted decision-making Part 3 of the Act provides for assisted decision-making. This is the lowest level of assistance, where a decision-making assistant can be appointed in cases where a person needs support to access information, to understand it, and to make and express decisions. The decision-making responsibility ultimately remains with the person being assisted. The decision-making assistant is typically a carer or a family member, and the relationship is formalised through a written decision-making assistance agreement. More than one person can be appointed as decisionmaking assistants, and the agreement may specify whether the assistants shall act jointly, jointly and severally, or jointly in respect of some manners and severally in respect of others.

The agreement may be revoked by the person appointing the decision-making assistant(s) at any time.

2. Co-decision-making Part 4 of the Act provides for co-decision-making. A co-decision-maker will make decisions jointly with the person requiring support. The co-decision maker will be a trusted friend or family member and will be appointed by the person being supported. Decision-making responsibility will be shared between the person and the co-decision-maker.

A written co-decision-making agreement must be signed by both parties. The agreement will not enter into force until it has been registered in accordance with the Act. This agreement can also be revoked at any time. Co-decision-making agreements must be reviewed by the Director of the DSS, and co-decision-makers must submit a report to the Director every 12 months.

3. Decision-making representatives Part 5, Chapter 4 of the Act provides for court-appointed decision-making representatives, the highest level of decision-making assistance. If a person is found to lack capacity to make decisions even with support, the Circuit Court can appoint a decision-making representative.

The decision-making representative will make decisions on behalf of the person and be solely responsible for decision-making. However, the duration and scope of their functions will be as limited as possible, and the person’s will and preferences must be considered whenever possible.

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Powers of Attorney and Advanced Healthcare Directives Under the Act, a person who has capacity can make an Enduring Power of Attorney and/or an Advance Healthcare Directive to ensure that their will and preferences will be respected if they lack decision-making capacity in the future.

The Act expands the Powers of Attorney Act 1996 to include healthcare matters. A person over the age of 18 can now appoint another person over the age of 18 to act as their attorney and confer either or both of the following on them: ‘(a) general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs; or (b) authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both.’414 An advance healthcare directive is a person’s advance expression of will and preferences concerning treatment decisions. Any person over the age of 18 can make such a directive in writing, and the Act provides that: ‘A relevant person who has attained the age of 18 years and who has capacity is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs) notwithstanding that the refusal— (a) appears to be an unwise decision, (b) appears not to be based on sound medical principles, or (c) may result in his or her death.’415 Requests for specific treatments are not legally binding but will be taken into consideration.416 Impact of the Act Implementation of the Act 414

Assisted Decision-Making (Capacity) Act 2015, s 59(1).

Assisted Decision-Making (Capacity) Act 2015, s 83(2).

416 Assisted Decision-Making (Capacity) Act 2015, s 84(3)(a).

415

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The traditional system of wardship has been heavily criticised for years due to its archaic nature, however, reforms introduced by the Act were stalled due to a lack of government funding.417 However, increased funding was acquired in 2021 and Roderic O’Gorman, Minister for Children, Equality, Disability, Integration and Youth has stated that the government is ‘fully committed’ to commencing the 2015 Act.418 Thus, the previous system of wardship will be entirely overturned by new legislation, the Assisted Decision-Making (Capacity) (Amendment) Bill 2021.419 This legislation will amend the existing 2015 Act. According to the Department of Children, Equality, Disability, Integration and Youth, there will be improved safeguards for those using the new decisionmaking supports.420 This is with the goal of ending the current system of wardship in Ireland and implementing the 2015 Act to its fullest.

In order to facilitate this implementation, the Decision Support Service has been established.

This is a new service for all adults who have difficulties with their decision-making capacity.

This may include people with an intellectual disability, mental illness or acquired brain injury, as well as people with age-related conditions who may need supports to make decisions. This organisation will operate under the 2015 legislation and is due to become fully operational by July 2022 – a delay from the initial target of 2018.421 Legal and Practical Consequences of the Act The Act signals a large-scale systemic upheaval, which will have significant practical consequences for public bodies and healthcare and social professionals. It is necessary that

417

Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020).

418 Dáil Deb, 26 November 2020 vol 1001.

419 ‘Wardship system to be ended by June 2022’ (Irish Legal News, 22 November 2021) <https://www.irishlegal.com/articles/wardship-system-to-be-ended-by-june-2022> accessed 10 January 2022.

420 Department of Children, Equality, Disability, Integration and Youth, ‘Press Release: Cabinet approves General Scheme of the Assisted Decision-Making (Capacity) Amendment Bill’ (Gov.ie, 22 November 2021) <https://www.gov.ie/en/press-release/b952e-cabinet-approves-general-scheme-of-the-assisted-decision-makingcapacity-amendment-bill/> accessed 10 January 2022.

421 ‘Bill to end wardship system in Ireland’ (Law Society of Ireland Gazette, 22 November 2021) <https://www.lawsociety.ie/gazette/top-stories/2021/11-november/bill-to-end-wardship-system-in-ireland> accessed 12 January 2022.

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they are made aware of this legislative change and that they are provided with additional support and resources, to ensure that the intention of the Act is realised.422 The HSE and Decision Support Service responded to this necessity, conducting a series of talks for healthcare and social professionals about the Act in late 2019.423 However, we note that there should be consistent educational supports on the new system of wardship subsequent to the commencement of the Act. Hopefully, the Decision Support Service and Codes of Practice provided by the Act will fulfil their respective roles in this aspect.

Determining decision making capacity has been described as one of the most ‘conceptually and ethically challenging areas of clinical practice’.424 It must be considered that ‘capacity’ itself is considered a legal, clinical and social construct, perhaps why its inclusion in the title of the Act is in brackets.425 Additionally, it was found in the UK that comprehensive training in their capacity legislation did not necessarily result in high quality application of the requirements in practice.426 Therefore, while the Act marks a change, it is yet to be seen how effectively it will operate in Ireland.

Chapter Conclusion The Act has been described as a ‘flawed but deeply principled’ piece of legislation.427 The recent announcement of an amendment to the Act to abolish the system of wardship is welcome, and it provides for a significantly more nuanced and compassionate treatment of those who may struggle exercising their decision-making capacity. The implementation of the Act will mark an overdue change of the wardship system in Ireland, ensuring a greater level of autonomy for persons with disabilities.

422 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130.

423 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021).

424 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130.

425 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130.

426 Daniel Ratfliff and Melanie Chapman, ‘Health and social practitioners experiences of assessing mental capacity in a community learning disability team’ British Journal of Learning Disabilities (2016) 44(4) British Journal of Learning Disabilities 329.

427 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021).

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Chapter 10: Irish Sign Language Act 2017 Jennifer Brennan, Lorna Traynor

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Introduction This chapter proposes to analyse the Irish Sign Language Act 2017, outlining the major changes introduced through it and critically analysing any necessary considerations for future expansion of the Act. Overview of the Act The Irish Sign Language Act passed into law on the 24th of December 2017.428 The Act supports the recognition of Irish Sign Language (ISL), its use in legal proceedings and the provision of interpretation into Irish Sign Language by public bodies and to provide for related matters.429 It outlines the entitlements that citizens with auditory impairment or similar, can avail of when requiring interpreting services when dealing with public bodies.

Definition of a ‘Public Body’ under the Act (a) a Department of State (other than, in relation to the Department of Defence, the Defence Forces) for which a Minister of the Government is responsible; (b) a local authority within the meaning of the Local Government Act 2001; (c) the Health Service Executive; (d) a university or institute of technology; (e) an education and training board established under section 9 of the Education and Training Boards Act 2013; (f) any other person, body or organisation established — (i) by or under an enactment (other than the Companies Act 2014) or charter, (ii) by any scheme administered by a Minister of the Government, or (iii) under the Companies Act 2014 in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government; (g) a company (within the meaning of the Companies Act 2014) a majority of the shares in which are held by or on behalf of a Minister of the Government; (h) any other person, body, organisation or group prescribed under section 6 (5).430

428

Register of Irish Sign Language Interpreters, ‘Guidelines for Working with Irish Sign Language/ English Interpreters’ (2017) <https://risli.ie/wp-content/uploads/2020/12/Guidelines-for-Working-with-Interpreters.pdf> accessed 22 October 2021.

429 Irish Sign Language Act 2017.

430 Irish Sign Language Act 2017, s1.

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Changes implemented by the Act The Act officially recognises Irish Sign Language (ISL) as a native language of the State and provides that the ‘community of persons using Irish Sign Language shall have the right to use, develop and preserve Irish Sign Language’.431 Furthermore, the Act ‘provides for specific duties and obligations in the areas of legal proceedings, educational provision and broadcasting’.432 The main areas in which the changes have been implemented are outlined below: Legal Proceedings A person is entitled to use ISL in any pleading or court.433 Every court has an obligation to do all that is reasonable to ensure that any person competent in ISL and who cannot understand Irish and English appearing or giving evidence before it may be heard in that language (if it is their choice) and furthermore they will not be disadvantaged by doing so.434 For the purposes of ensuring that no person is placed at a disadvantage, the court may cause such facilities to be made

available

for

the

simultaneous

or

consecutive

interpretation

of

ISL.435

Access to interpreting services Under the Irish Sign Language Act 2017 “public bodies shall do all that is reasonable to ensure that interpretation is provided for a person who is competent in that language and cannot hear or understand English or Irish when that person is seeking to avail of or access statutory entitlements or services by or under statute by that public body”.436 The Act specifies that this should be at no cost to the person concerned.437 Moreover, the Act refers to funds being

431

Department of Children, Equality, Disability, Integration and Youth ‘Minister Rabbitte Announces Commencement of the Irish Sign Language Act 2017’ (gov.ie, 2020) <https://www.gov.ie/en/pressrelease/50472-minister-rabbitte-announces-commencement-of-the-irish-sign-language-act-2017/> accessed 25 October 2021.

432 Department of Children, Equality, Disability, Integration and Youth ‘Minister Rabbitte Announces Commencement of the Irish Sign Language Act 2017’ (gov.ie, 2020) <https://www.gov.ie/en/pressrelease/50472-minister-rabbitte-announces-commencement-of-the-irish-sign-language-act-2017/> accessed 25 October 2021.

433 Irish Sign Language Act, s4 (1).

434 Irish Sign Language Act, s 4 (2).

435 Irish Sign Language Act 2017, s 4 (3).

436 Irish Sign Language Act 2017, s 6 (1).

437 Irish Sign Language Act 2017, s 6 (2).

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provided to enable access in ISL,438 to ‘social, educational and cultural events and services (including medical) and other activities’.439 The guidelines under this section specify the events, services, and activities to which the guidelines apply and shall make provision in regard to the management of the support in relation to those events by users of ISL.440 The services include medical services. It is set out in the HSE Patient’s Charter that ‘you should be given information in a language that you can understand’ and ‘should be given the opportunity to ask questions and receive answers that you can understand’.441 The Act covers Mental Health interpreting which covers a wide range of situations, from informal counselling to forensic psychiatric evaluations.442 Furthermore, the service of utilising and being provided access to an

interpreter

in

Garda

Stations

is

covered

by

the

Act.443

Establishment of a Register of Interpreters to regulate ISL interpreters, deaf interpreters and ISL teachers The services of a person providing Irish Sign Language interpretation will not be provided unless the person’s competence has been verified by having been accredited in accordance with an accreditation scheme funded by the Minister for Employment Affairs and Social Protection.444 The Register of Irish Sign Language Interpreters (RISLI) was established in December 2020.445 RISLI aims to protect the users of interpreting services through a standardsbased registration system, set and ensure adherence to standards for the provision of ISL by public bodies, support public bodies to facilitate the use of professional ISL services so the Deaf community can exercise their rights and entitlements, support professional ISL interpreters to meet and maintain standards, promote social inclusion of ISL users including

438

Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’, (hse.ie, 2012) <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users> accessed 14 November 2021.

439 Irish Sign Language Act 2017, s9.

440 Irish Sign Language Act 2017, s 9 (2).

441 Health Service Executive, ‘National Health Care Charter: You and Your Health Service’, (hse.ie ,2012) <https://www.hse.ie/eng/about/who/qid/person-family-engagement/national-healthcare-charter.pdf >accessed 14 November 2021.

442 Register of Irish Sign Language Interpreters, ‘Guidelines for Working with Irish Sign Language/ English Interpreters’ (risli.ie, 2017) <https://risli.ie/wp-content/uploads/2020/12/Guidelines-for-Working-withInterpreters.pdf> accessed 22 October 2021.

443 Register of Irish Sign Language Interpreters, ‘Guidelines for Working with Irish Sign Language/ English Interpreters’ (risli.ie, 2017) <https://risli.ie/wp-content/uploads/2020/12/Guidelines-for-Working-withInterpreters.pdf> accessed 22 October 2021.

444 Irish Sign Language Act 2017, s 7.

445 Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’ (ahead.ie, 2021) 12 <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users>accessed 14 November 2021.

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access to public bodies.446 Furthermore, registered interpreters are required to complete a set number of continuous professional training and work practice hours annually.447 It is necessary for the registered interpreters to act in accordance with the professional Code of Conduct.448 A Complaints and Mediation policy exists, where complaints can be made against a registered interpreter

for

failing

to

abide

by

the

Code

of

Conduct.449

The continuing provision of education The Minister of Education and Skills will provide ISL classes to the parents, siblings and grandparents or guardians of a child who is deaf.450 Furthermore, the Act provides to establish a scheme to provide ISL support for children attending recognised schools in which the primary language is ISL.451 The Act sets out that it ensures there are programmes for teacher education and training provided by higher education institutions. E.g. to ensure that a sufficient number of educational placements offer Irish Sign Language training for teachers of children who are deaf or hard of hearing and who are attending recognised schools.452

Broadcasting Act 2009 Principles The Act ensures that Broadcasters fulfil their obligations under the 2009 Act,453 relating to ISL targets and requirements. The Act sets out that the Broadcasting Authority of Ireland (BAI) shall adhere to the principles of equality, dignity, and respect in terms of the promotion and broadcasting of programmes.454 Specific targets were identified for each broadcast service and moreover each broadcaster shall comply with the targets and timeframes that apply to them.455 446

Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’ (ahead.ie, 2021) 12 <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users>accessed 14 November 2021.

447 Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’ (ahead.ie, 2021) 12 <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users>accessed 14 November 2021.

448 Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’ (ahead.ie, 2021) 12 <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users> accessed 14 November 2021.

449 Margaret O’Connor, Gill Harold, ‘A Milestone for access for Deaf Irish Sign Language users’ ( ahead.ie, 2021) 12 <https://www.ahead.ie/journal/A-Milestone-for-Access-for-Deaf-Irish-Sign-Language-users> accessed 14 November 2021; Irish Sign Language Act 2017, s 5 (a).

450 Irish Sign Language Act 2017, s 5 (a).

451 Irish Sign Language Act 2017, s 5 (b).

452 Irish Sign Language Act 2017, s 5 (c).

453 Broadcasting Act 2009.

454 Irish Sign Language Act 2017, s 8.

455 Broadcasting Authority of Ireland, ‘BAI Access Rules’ (bai.ie, 2019) <https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal.pdf> accessed 14t November 2021.

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In the case of most services, the ISL targets will be assessed by the BAI based on a 24-hour day with an exception for any channel where the length of the broadcast day is less than 24 hours.456 Broadcasters must also ensure that in the event of government announcements relating to national emergencies, that ISL interpreters will be in attendance, clearly visible and understandable to the audience throughout the entirety of the broadcast.457 It is expected that the government or those working on their behalf in the presentation of emergency information will cooperate with broadcasters to ensure these requirements are met.458

Scope and Limitations of the Act Limited to Public Bodies The obligations under this Act are only applicable to public bodies.459 Under the Act they must do all that is reasonable to ensure that interpretation into ISL is available for someone who is competent in the language and cannot hear or understand English or Irish when they are seeking to avail or access statutory entitlements or services provided by or under statute by that public body.460 A public body is defined in the Act by Section 1.461 The Minister may also prescribe as a public body such other personal, body, organisation or group financial wholly or partially out of the monies provided by the Oireachtas that ought in the opinion of the Minister in the public interest have regard to the provisions and intentions of this Act.462 This limitation to public bodies displays an overall gap in statutory entitlements, which may increase difficulties for ISL users who would like to avail of services other than what comes under the definition of a public body. This may require the ISL user to arrange their own interpreting, which can be costly, making interpretation less accessible. In terms of other statutory obligations which could apply to non- public bodies, the Employment Equality Act obliges employers to make reasonable accommodations for people with disabilities, however

456

Broadcasting Authority of Ireland, ‘BAI Access Rules’ (bai.ie, 2019) < https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal.pdf.> accessed 14t November 2021.

457 Broadcasting Authority of Ireland, ‘BAI Access Rules’ (bai.ie, 2019) < https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal.pdf.> accessed 14t November 2021.

458 Broadcasting Authority of Ireland, ‘BAI Access Rules’ (bai.ie, 2019) <https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal.pdf.> accessed 14t November 2021.

459 Irish Sign Language Act 2017, s 3(1).

460 Irish Sign Language Act 2017, s 6(1).

461 Irish Sign Language Act 2017, s 1.

462 Irish Sign Language Act 2017, s 6(5).

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this should not impose a disproportionate burdens on employers.463 While in most cases the cost of interpretation will be provided by the organisation or person providing the service there are still occasions where this is not the case.464 In terms of cost of interpretation, this can depend on a number of factors including if the interpreter works for an agency or works freelance, the assignment type, duration of the assignment, travel expenses, overnight accommodation, preparation time, and other additional charges such as cancellation fees.465 Legal Proceedings; Scope and Limitations Section 4 of the ISL Act covers the scope of use of ISL in Legal Proceedings. This includes the use of ISL in any pleadings or court466 and the obligation for courts to do all that is reasonable to ensure those who cannot hear or understand English or Irish may use ISL and will not be placed at a disadvantage.467 To ensure this, the court may cause such facilities to be made available, as it considers appropriate, for the simultaneous or consecutive interpretation of proceedings into ISL.468 However, there are limitations to interpreting during legal proceedings. In particular there are challenges for interpreters with legal jargon,469 such as legal terminology and understanding of legal procedures. While registration into the Register of Irish Sign Language Interpreters (RISLI) does imply an expected standard of quality and professionalism and proves that the interpreter meets a basic level of competence as an interpreter, it does not guarantee an interpreter’s ability and knowledge of legal jargon, although the RISLI is expected to set up

463

Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 25 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 25 October 2021.

464 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 23 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 25 October 2021.

465 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 23 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 29 October 2021.

466 Irish Sign Language Act 2017, s 4(1).

467 Irish Sign Language Act 2017, s 4(2).

468 Irish Sign Language Act 2017, s 4(3).

469 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 17 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 30 October 2021.

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Specialisation Panels that demonstrate an interpreter’s specialised knowledge to remedy this issue.470 Additionally, due to the limited number of ISL interpreters, unprepared interpreters may result in errors in interpretation. It is recommended for court cases that interpreters should be made aware of the type of case before the case is heard in court.471 Additionally, a limited number of interpreters may lead to interpreter fatigue, as it is recommended for most legal interpreting assignments that there is more than one interpreter. Moreover, conflicts of interest may arise that interfere with the objectivity of the interpretation, which may result in the interpretation and the court proceedings as a whole being compromised.472 Education and Training Section 5 of the Act sets out the scope of Educational Supports and Training, including a scheme for ISL classes to be provided for the immediate family, as well as other persons who serve in loco parentis to a child who is deaf,473 ISL support for children attending recognised schools whose primary language is ISL,474 and ensure there is a sufficient number of education placements in state higher education institutions offering ISL training for teachers.475 Since the commencement of the Act, the ISL Tuition scheme providing ISL training for children and their families has been established and is currently being run by the Department of Education. Additionally, the National Council for Special Education provides funding for individual teachers and school employees in primary and post-primary mainstream schools, special schools and special classes to undertake courses in ISL. In addition to the four year Deaf Studies course offered by Trinity College Dublin, Dublin City University launched a new Bachelor of Education (ISL) as a pilot programme that enables deaf and hard of hearing people

470

Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 17 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 30 October 2021.

471 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 61 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 30 October 2021.

472 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie , 10 June 2021) 62 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 2 November 2021.

473 Irish Sign Language Act 2017, s5(a).

474 Irish Sign Language Act 2017, 5(b).

475 Irish Sign Language Act 2017, 5(c).

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who use ISL to enter primary teaching. It is accredited by the Teaching Council. Trinity College Dublin also offers continuous professional training and ISL interpreters training.476 Remote ISL Access Section 6(4) provides for availing of remote, web-based service of ISL interpretation with the consent of the ISL user to be sufficient to meet the obligations of public bodies.477 However there are potential limitations such as quality issues478, and situations where virtual remote interpretation is not suitable such as dealings with complex issues.479 According to the RISLI Guidelines, VRI is not deemed suitable for a number of settings, including complex issues, multi-party conversations with no-turn-taking protocol, discussion of sensitive issues, involvement of children and where sight interpretation is necessary.480 However VRI interpretation is available from the Irish Remote Interpreting Service on an appointment basis.481 An app is also currently being developed that allows a Deaf Person to avail of ISL services on demand. The technology is user friendly and easily accessible from a variety of devices which have integrated camera and speaker. When fully developed public services will also be able to avail of a dedicated portal through the App, which will give them a direct calling facility to their deaf clients, via an ISL interpreter.482 Broadcasting; Scope and Limitations Section 8 of the Act, provides for Broadcasters to fulfil ISL obligations and requirements in respect of programmes transmitted on a broadcasting service provided by the broadcaster in 476

Department of Children, Equality, Disability, Integration and Youth ‘Minister Rabbitte Announces Commencement of the Irish Sign Language Act 2017’ (gov.ie, 2020) <https://www.gov.ie/en/pressrelease/50472-minister-rabbitte-announces-commencement-of-the-irish-sign-language-act-2017/ > accessed 24 October 2021.

477 Irish Sign Language Act 2017, s 6(4).

478 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 31 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 4 November 2021.

479 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 34 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 4 November 2021.

480 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 34 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 4 November 2021.

481 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 35 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 4 November 2021.

482 Department of Children, Equality, Disability, Integration and Youth ‘Minister Rabbitte Announces Commencement of the Irish Sign Language Act 2017’ (gov.ie, 2020) <https://www.gov.ie/en/pressrelease/50472-minister-rabbitte-announces-commencement-of-the-irish-sign-language-act-2017/ > accessed 24 October 2021.

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accordance with the rules set out in Section 43(1) of the Broadcasting Act 2009.483 According to the BAI Access Rules Review, ISL signing must be presented on a television screen through the use of a signer as part of the programme content, or the use of a signer acting as an interpreter in a box superimposed in the corner of the screen.484 In terms of current accessibility, subtitling is significantly more common than ISL interpretation. For example RTÉ 1, as of 2019, subtitles 87% of programming,485 as opposed to 3% of ISL interpretation. This is only targeted to increase to 5% by 2023.486 ISL Interpreters Scope and Limitations ISL Interpreters used by the state must be verified through a state funded accreditation scheme,487 and all professional interpreters must be registered with the Register of Irish Sign Language Interpreters (RISLI).488 Registered interpreters are issued with a Registration card, subject to an expiry date to demonstrate validity. They also must follow the Register’s Code of Conduct, Complaints and Mediation Processes and must commit to a minimum number of hours of Continuing Professional Development per year. Failure to comply can lead to removal from the register.489 One of the most significant limitations for interpreters is their own limited specialised knowledge and their ability to handle higher level or risk assignments, such as legal, medical and mental health assignments, as registration to RISLI does not guarantee specialised knowledge. As aforementioned in the legal proceedings subsection, Specialisation Panels will be established which would demonstrate an interpreter’s own specialised knowledge. The

483

Irish Sign Language Act 2017, s 8.

Broadcasting Authority of Ireland (BAI), ‘Broadcasting Authority of Ireland Access Rules Review Public Consultation June 2018’ (bai.ie, June 2018) 2 <https://www.bai.ie/en/media/sites/2/dlm_uploads/2018/06/AccessRules_Consultation_vFinal.pdf> accessed 16 November 2021.

485 Broadcasting Authority Ireland, ‘BAI Access Rules January 2019’,10 (bai.ie, 2019) <https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal-1.pdf> accessed 16 November 2021.

486 Broadcasting Authority Ireland, ‘BAI Access Rules January 2019’, 11 (bai.ie, 2019) <https://www.bai.ie/en/media/sites/2/dlm_uploads/2019/01/AccessRules_2019_vFinal-1.pdf> accessed 16 November 2021.

487 Irish Sign Language Act 2017, s 7.

488 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 17 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Workingwith-Interpreters-June-2021.pdf> accessed 16 November 2021.

489 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 18 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 16 November 2021.

484

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planned panels are healthcare interpreting, legal interpreting and deaf interpreting.490 Other issues include interpreter bias which can compromise high risk situations such as legal proceedings and interpreter fatigue brought on by the limited number of interpreters, which can lead to mistakes in interpretation.491 Limited numbers of interpreters also lead to delays and at least a two week advance notice is recommended for hiring an interpreter but there is no guarantee of availability. Additionally, there is a geographically uneven supply of interpreters with most being based in the greater Dublin area.492 This could lead to an increase in costs, as travel time, expenses and overnight accommodation may be subject to additional charges.493 Tactile ISL Interpretation Tactile ISL or hand-over-hand sign language is where the person who is deafblind puts their hands over the signer’s hands to feel the shape, movement and location of the signs.494 Tactile ISL is not covered in the ISL Act, and therefore may not enjoy the same free interpreting services provided when availing of services from public bodies as ISL. Furthermore, limited numbers of interpreters and information about tactile interpreters has the potential to worsen the limitations already seen for non- tactile ISL interpretation.

Chapter Conclusion The Irish Sign Language Act is a welcome development within this field, however it ought to be more ambitious in future reforms to meet the needs of persons who utilise Irish Sign Language as their primary means of communication. Consideration ought to be given in

490

Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 17 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 16 November 2021.

491 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 62 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 16 November 2021.

492 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 22 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 16 November 2021.

493 Register of Irish Sign Language Interpreters, Guidelines for Working with Irish Sign Language/ English Interpreters (risli.ie, 10 June 2021) 23 <https://risli.ie/wp-content/uploads/2021/06/Guidelines-for-Working-with-Interpreters-June-2021.pdf> accessed 16 November 2021.

494 The Anne Sullivan Centre for people who are Deafblind, ‘Communication with people who are deafblind’ (Anne Sullivan Centre, 2021) <https://www.annesullivan.ie/advice-information/communicating-with-peoplewho-are-deafblind/> accessed 16 November 2021.

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expanding entitlements under the Act beyond public bodies, and in order to effectively realise its aims further investment in interpreter services and training is crucial.

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