HUMAN RIGHTS
AND DISABILITY
SPAIN REPORT 2012
Drawn up by the CERMI Delegation for the UN Convention
With information from CERMI’s Support Committee for the UN Convention on 4 April 2013
Approved by CERMI’s Executive Committee on 23 May 2013
CONTENTS
I. Introduction
II. Analysis of the situation per article of the Convention
III.Statistical analysis of enquiries received by CERMI in 2012
IV. Reports presented in 2012 by other institutions: Specialist Permanent Bureau of the National Disability Council, the Ombudsman and related autonomous bodies
V.Bartolomé de las Casas Human Rights Institute of Carlos II University Legal Clinic Finding, Madrid. Masters Degree in Human Rights 2012.
I. INTRODUCTION: CERMI, AN INDEPENDENT CIVIL SOCIETY BODY FOR MONITORING THE APPLICATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
One of the fundamental aims of CERMI, as the platform representing organized disability in Spain, with more than 7,500 associations and institutions of persons with disabilities and their families, is to defend the rights of this group of citizens. There are more than four million people in Spain with disabilities who, with their families, number around twelve million. In meeting these aims and as a result of our activity, we have identified situations which constitute a violation of the rights of persons with disabilities; these rights are firmly enshrined in the Spanish Constitution (CE) and in the Convention on the Rights of Persons with Disabilities (hereinafter the Convention) itself.
As an independent body monitoring the application of the Convention in our country, we have drawn up the fifth report on Human Rights, Spain for 2012. This report has been prepared to expose such violations in order to ensure that measures are taken to restore the rights of a sector of the population who are experiencing a deficit in citizenship.
Various sources of information have been used, chiefly: inquiries and complaints received by CERMI itself as an independent monitoring body; actions undertaken in the course of the body’s usual work; the collaboration of the associative movement and people affiliated with the various legal areas; and news published in the press which has instigated research on the part of CERMI.
An analysis was undertaken by article in order to structure the information for the compliance reports which the United Nations requires of the States and includes information in relation to:
•Violations: in the form of individual cases, not all those received but those which are the most striking or which serve as examples of violations or actions undertaken by CERMI.
•Good practice. Cases of relevant initiatives towards the enforcement of rights or particularly significant positive action.
•Court rulings: which interpret or apply the Convention.
•Other information from institutions committed to upholding the rights of people with disabilities.
II. ANALYSIS OF THE CONVENTION BY ARTICLE
With regard to compliance with the principle and content of the Convention covered under Articles 1 and 4
VIOLATION OF ARTICLE 4
•The Chamber for Contentious Administrative Proceedings of the High Court of Justice of Navarre overturned two regional orders establishing incompatibilities in the receipt of aid by people with disabilities and in fact resulted in a cut back to the amount and intensity of the benefits.
The rulings, which were in response to two appeals brought by CORMIN (CERMI Navarre), and which were actively driven by its members, concluded that neither rule “conforms to the law” because, amongst other reasons, the affected parties and their representatives had not been allowed a hearing process. The rulings obliged the Government of Navarre to pay the social benefits they had withdrawn retroactively.
The rulings, notified on the 10 and 18 of October by the Chamber for Contentious Administrative Proceedings of the High Court of Justice of Navarre, declared null and void Regional Orders 103/2011, of 21 October, which established a system of compatibilities between different benefits for people in a situation of dependence, and Regional Order 247/2011, of 23 December, which specified how financial aid and support for carers is adjusted for dependent people who wish to remain in their own homes.
This regulation, in addition to reducing the amount received, set a system of incompatibilities in the payment of benefits such that, for example, a person receiving financial aid for attending a day centre for a few hours could not then claim any benefit for remaining in their own home.
The current rulings now award in favour of CORMIN, the body which lodged the appeals against the regional orders, which they opposed from their inception considering them “unfair”, as they ruled as incompatible benefits which are completely complementary, thus restricting the rights of people with disabilities who have extensive support needs for their autonomy and those of their carers.
The rulings fully uphold CORMIN’s demands and overrule the regional orders issued by Elena Torres, the then Councillor for Social Policy, Equality, Sport and Youth, because they failed to adhere to the legally established procedure for enacting this type of rule as, amongst other things, the hearing process for citizens which is required prior to approval had been overlooked. The rulings dictate that, as these were provisions which “affect the legitimate rights and interests of citizens” a hearing process was obligatory and, in any case, the Department did not even claim that there were “serious reasons in the public interest” which might have freed them from initiating this process. “In short - the rulings stress – there is no reason for not having issued the regional orders which would lead to omission of the hearing process”.
Good practice
CERMI welcomed the formation of Parliamentary Commissions on Disability in the Communities of Cantabria and Murcia in 2012.
ARTICLE 5 - Equality and non-discrimination
•Infringements of Law 51/2003, of 2 December on Equal Opportunities, Non-discrimination and Universal Accessibility are being met with impunity with the complete lack of sanction from the state. The lack of political commitment, both from Central and Regional Government, renders the system of Infringements and Penalties of the LIONDAU ineffective and allows the provisions protecting the rights of persons with disabilities to be infringed with impunity.
The Government persists in its failure to comply with the sixth additional Provision of Law 49/2007 of 26 December, which lays out the regime of infringements and penalties in the area of equal opportunities, non-discrimination and universal accessibility for people with disabilities. This additional provision establishes that at least within the four years after the Law’s entry into force, an annual report should be submitted to the Cortes (Spanish National Parliament) giving an account of the actions taken each year in the application of the Law, their financial cost and the programming of future actions. Furthermore, the provision requires that sanctions be imposed and their financial return reported. On completion of this report, the Government has not drawn up or presented said report to the Cortes Generales, and thus continues to be in breach of its legal obligation.
ARTICLE 6 – Women with disabilities
•Via their Women’s Commission, CERMI draws attention to the situation of discrimination and lack of care faced by elderly women with disabilities, who are (often) victims of violence and forgotten in the policies, actions and measures developed to prevent and eliminate violence against women and calls for appropriate measures to combat and bring it to an end.
CERMI, as an organisation with consultative status before the Economic and Social Council of the United Nations (ECOSOC), took part in September 2012 in the public consultation on Violence against Women held by the United Nations Special Rapporteur, Rashida Manjoo, who is completing a study on “State Responsibility for Eliminating Violence against Women” for her Annual Report 2013. CERMI’s Women’s Commission presented a research study which tackles in detail aspects concerning the situation of violence against women and girls with disabilities in Spain and its principal causes, Spanish legislation on the matter and proposals to combat violence against girls and women with disabilities.
Two thirds of women with disabilities are over 60 years of age and many of them live in closed and segregated environments, principally geriatric and psychiatric establishments; they are not able to decide on basic elements of their daily life (such as with whom and how to live, how to occupy themselves or participate in their community).
Women with disabilities are also “poorer”, as a result of not having access to an active working life and of a social benefits system which failed to cover the structural barriers to inclusion in the labour market that they have faced all their lives, relying on a basic attendance allowance as their sole financial income, “which leads to greater exposure to violence and abuse”.
Furthermore, violence against elderly women with disabilities can take the form of physical, sexual, or psychological abuse, and financial exploitation and neglect; very often their abusers are family members or others in charge of their care.
Similarly, women with intellectual, mental, or psycho-social disabilities, and those who, as a consequence of age, have cognitive impairment or impairment of a different type are at greater risk of being subjected to violence. In fact, the large majority are in a situation of legal incapacitation, which excludes them from access to justice and speaking for themselves. Moreover, on the rare occasions when these women do come forward, their claims are given little credence and they are offered no specific support in police and legal proceedings.
Within the framework of the International Day for the Elimination of Violence against Women (25 November) and of the European Year of Active Ageing and Intergenerational Solidarity, CERMI condemned violence perpetrated against older women with disabilities and called for measures to combat and eliminate it.
•The President of the Observatory against Domestic and Gender-based Violence of the General Council of the Judiciary (CGPJ) wants to include disability in the statistics on abuse.
CERMI has been flagging up the need for the effective inclusion of disability as an indicator and for it to be included in official reports promoting the visibility of violence against women with disabilities. Data disaggregated by gender and other factors such as age, ethnic origin and disability should be systematically combined detailing the prevalence of all forms of violence against women, the causes and consequences of violence against women, and the efficacy of any measures applied towards its prevention and redress.
This demand prompted the President of the Observatory against Domestic and Gender/based Violence of the General Council of the Judiciary (CGJP), Inmaculada Montalbán, to declare herself in favour of including disability as another variable in the collection and preparation of data on abuse which are handled by various institutions of the State and of “developing lines of work specifically targeting this group” within her organisation. This was announced by the news agency Servimedia, specialists in social information.
Proposal for improvement.
The confluence of factors such as gender and disability make women with disabilities a group at serious risk of suffering maltreatment or abuse; figures in Europe suggest that approximately 40% of women with disabilities suffer or have suffered some type of violence. Political groups, equality organisations and society in general are now becoming increasingly more aware that violence against women exists, hence the increase in programmes for providing information, advice and protection to women who have been the victims of aggression. However, these programmes have not taken into account the particular issues faced by women with disabilities, and therefore have become inaccessible to them.
There is a legal obligation on the part of government covered under Article 31 of the Convention by virtue of which it is necessary to “gather adequate information, including statistical and research data, which enables policies to be formulated and applied in order to give effect to this Convention”.
In this regard, the identification of data on disability and gender-based violence in the area of justice administration would seem appropriate and entirely useful.
To this end, we make two proposals which might improve information in this area: one which could be implemented in the short term and another more ambitious proposal which would have to be assessed in a forthcoming updating of the data collection systems.
Proposals:
First:
Crossing information between the data on complaints filed on gender-based violence and the data on official recognition of situations of disability.
This would take place via
•Data on gender-based violence identified by the Sistema Integrado de Registros Administrativos de Apoyo a la Actividad Judicial (SIRAJ) (Integrated System of Administrative Records for Supporting Legal Activity) managed by the Ministry of Justice.
•Information from the Base de Datos Estatal de Personas con Discapacidad (National Database for Persons with Disabilities), a national register of assessment files of people with disabilities who have an officially recognised degree of disability. This database is managed by the Ministry of Health, Social Services and Equality, IMSERSO, in particular.
There is previous experience in this regard in the area of employment where the National Database for Persons with Disabilities was crossed with the Active Population Survey.
Second:
On a second more ambitious level, we propose introducing a data collection system into the process for filing complaints to enable information to be gathered as to the disability factor in victims of gender-based violence.
The objective in this second proposal would be to broaden the concept of disability, to identify information in line with the social model of the Convention, and in this regard not restrict the concept of disability to official recognition, but apply it to all situations which in fact fall within the conceptualisation of disability resulting from a permanent deficiency and environmental barriers which hinder the exercise of human rights (Article 1 of the Convention). The spirit of the law would also be reflected which has extensive subjective scope in terms of defence measures, arbitration and legal character (paragraph 3 of Article 1 of Law 51/2003, of 2 December- LIONDAU).
In this regard three ways of collecting data would be formulated which would have to be defined either complementarily or alternatively, as appropriate:
•A process of “self-evaluation” of the situation of disability, using the criteria proposed by the United Nations’ Washington Group (“short set”) for standardising criteria to identify situations of disability:
Questions on disability proposed by the Washington Group on disability statistics (short set).
Introductory phrase:
The next questions ask about difficulties you may have doing certain activities because of a health problem.
•Do you have difficulty seeing even if wearing glasses or contact lenses?
•Do you have difficult hearing even if using a hearing aid?
•Do you have difficulties walking or climbing steps?
•Do you have difficulty hearing or concentrating?
•Do you have difficulty with self-care, such as washing all over or dressing?
•Using your usual (customary) language, do you have difficulty communicating, for example understanding or being understood?
Possible answers:
•No – no difficulty at all
•Yes – some difficulty
•Yes – a lot of difficulty
•It is impossible for me
Including these questions in collecting data for the complaints process would enable information to be obtained on the social disability model per type of disability.
•Possessing an official certificate recognising the degree of disability or being in receipt of a pension from the Social Security due to a degree of permanent total or severe disability (this concept is included in section 2 or Article 1 of Law 51/2003, of 2 December, on equal opportunities, non discrimination and universal accessibility).
•Possessing a certificate of assessment and recognition of a situation of dependence.
ARTICLE 7 – Children with disabilities
•Early intervention services are still insufficient in Spain according to a study published in 2012 by the Federation of Professional Early Intervention Associations (Federación de Asociaciones de Profesionales de Atención Temprana) (GAT).
According to a research study by the National Federation of Early Care Association Professionals (GAT), early intervention is the set of interventions, aimed at the child population between 0 and 6 years of age, the family and the environment, with the objective of meeting the temporary or permanent needs of children presenting with developmental disorders or who are at risk of developing such disorders.
In relation to the Situation of Early Intervention for children in Spain, GAT reported that by March 2012, there were 534 Child Development and Early Care Centres (CDIAT) and fourteen regions covering early care legally, in other words, there is still no regulation in some regions. This research study shows there is room for improvement: “The population covered (43,986 children) is far less than the estimated population with disabilities from 0 to 6 years (78,397 children) and is very far from reaching the population at risk. There remain many children in need of attention”.
A recent research study by GAT recommended “a legal framework at national level to guarantee minimum levels of Early Care for all the regions of Spain”, “creating new public centres for early intervention and improving those already in existence” and “implementing effective co-ordination between social services, health and education”.
It also highlighted as necessary “substantially increasing the number of Early Care resources so that all needs may be met and in particular to guarantee the quality of services”. They maintain that stable funding for Early Care is necessary to ensure the quality it deserves: “We still uphold the principles of free care and universality incorporated in the White Paper on Early Care”.
CERMI has highlighted that Early Care is vitally relevant, from the perspective of an individual’s life cycle and constitutes the first set of services in which the country’s social policy towards specific individual citizens manifests itself. As the World Health Organisation maintains, delayed development, illness and limited activity in children can lead to disability if their environment does not offer them sufficient support.