Example 2: The first decision of the Committee on the Rights of Persons with Disabilities
Project Type: Litigation: H.M. v. Sweden, U.N. Doc. CRPD/C/7/D/3/2011 (21 May 2012).
H.M., a private litigant with a disability, brought this case.
H.M. had disability that limited her mobility. Her doctors determined that hydrotherapy was the only option to stop her physical impairments from progressing further and improver her quality of life. However, because she could not leave her house without risk of further injury, the doctors recommended the construction of an indoor pool in her home for hydrotherapy.
H.M. applied for a permit with the Örebro Local Housing Committee to extend her house by 63 square meters so that she could build an indoor pool. The Housing Committee rejected H.M.’s application because the Planning and Building Act prohibited such a use.
H.M. appealed the decision and exhausted her domestic remedies. She then filed a complaint with the Committee on the Rights of Persons with Disabilities.
Arguments & Holdings
Article 2(3) of the CRPD prohibits “discrimination on the basis of disability.” The Committee reasoned that “denial of reasonable accommodation” was included by the definition of “discrimination on the basis of disability.” Furthermore, and quite importantly, the Committee found:
The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention can be violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different.
The Committee found that the applicant’s hydrotherapy pool was essential to prevent the advancement of H.M.’s physical impairments, which stemmed from her disability. Therefore, since a departure from the development plan under the Planning and Building Act would not be a “disproportionate or undue burden,” the CRPD required that Sweden make the departure so that H.M. may build her therapeutic pool.
Articles 25 (health) & 26 (habilitation and rehabilitation)
Article 25 of the CRPD provides that persons with disabilities have the right to health “without discrimination on the basis of disability” and that “States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services . . . including health-related rehabilitation.” Article 26 of the CRPD provides that “States Parties shall take effective and appropriate measures . . . to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability and full inclusion and participation in all aspects of life.” In light of Articles 25 and 26, the Committee found that the denial of development plan departure permit was disproportionate and produced a discriminatory effect on a person with a disability who needed the permit for health and habilitation. Therefore, the Committee found a violation of Articles 25 and 26 of the CRPD.
Article 19(b) (Living independently and being included in the community).
Article 19 of the CRPD imposes an obligation on States Parties to “take effective and appropriate measures” to “facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.” The Article specifically states that “[p]ersons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.” Therefore, the Committee found that Sweden had violated Article 19(b) of the CRPD, since the therapeutic pool was the “only option that could support her living [in] and inclusion in the community.”
Commentary & Analysis
This is the first decision of the U.N. Committee on the Right of Persons with Disabilities. It also marks a break from the medical legal model to the social legal model for disability issues. Understanding that it is not the person that is deficient, but rather the environment, the CRPD rejects a medical model in favor of a social model that puts an end to barriers that prevent participation in society by persons with disabilities.
Convention on the Rights of Persons with Disabilities (CRPD)
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.
Article 25 (health)
States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation.
Article 26 (habilitation and rehabilitation)
States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services …
Article 19 (community living)
States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community …
- Jurisprudence from Committee on the Rights of Persons with Disabilities available at: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Jurisprudence.aspx.