IHREC Disability Work 2019-2021
The Commission prioritised advancing disability rights under its Strategy Statement 2019-2021. This strategic priority was progressed by the Commission across the execution of all of its functions.
To ensure the participation of disabled people in this work, the Commission appointed its first Disability Advisory Committee (‘DAC’) in January 2019. The DAC is a statutory advisory committee established under Section 18 of the IHREC Act 2014. Eleven people were appointed to the DAC for a three-year term following an open recruitment process, with a significant majority of members being persons with disabilities. Two members of the Commission act as Chair and Vice-Chair of the DAC. The first Chair and Vice Chair were Ms Teresa Blake SC and Dr Frank Conaty. At present, Dr. Rosaleen McDonagh is the Chair and Mr. Adam Harris is the Vice-Chair.
The DAC met 17 times in the period 2019-2021, an average of six meetings per year. Eight of the committee’s meetings have been informed by the input of invited subject matter experts. DAC meetings moved online in March 2020 due to the COVID-19 pandemic.
This paper provides an overview of the work of the DAC, and the Commission’s work on disability rights more broadly, during the course of the Commission’s Strategy Statement 2019-2021. In doing so, its purpose is to identify how the Commission has engaged with its strategic prioritisation of disability during this period. Towards this end, the paper outlines the key themes and issues the DAC has considered at its meetings and how its deliberations on these matters have informed Commission activity. The paper then sets out where the Commission has sought to advance disability rights across its work, including through policy statements and submissions, reports to international treaty monitoring bodies, observations on legislation, legal casework, research studies, and public-facing messaging (including a public awareness campaign, media engagement, and events).
Disability Advisory Committee
The DAC has considered and advised the Commission on a range of CRPD rights and related matters, often furthering its deliberations through engagement with key stakeholders and subject matter experts. The rights and issues considered by the DAC have included the following.
• Participation in CRPD implementation and monitoring.
• Participation in political and public life.
• Development of Disabled Persons Organisations (DPOs).
• Inclusive education.
• Living independently and being included in the community.
• Impact of COVID-19.
• Work and employment (including engagement with the Commission’s Strategic Engagement team to inform its work with the Worker Employer Advisory Committee on the conference ‘Achieving Equality at Work: Reasonable Accommodation in Practice’).
• Adequate standard of living and social protection.
• Children with disabilities.
• Equal recognition before the law.
• Dying with Dignity Bill.
• Access to Justice.
• Disability hate crime.
• Department of Health dossiers on children with autism involved in legal proceedings against the State.
• Women with disabilities.
Participation rights have been a central focus of DAC discussions across the strategic period. At its first meeting, for example, the DAC engaged with Mr. Stig Langvad, former member of the Committee of the Rights of Persons with Disabilities, on participation as it relates to the CRPD. This engagement usefully framed future DAC discussions on the nature of meaningful participation in policy processes and the actions required of the State to enable such participation. The DAC then considered participation in CRPD monitoring specifically, engaging on this topic with Professor Eilionóir Flynn of the Centre for Disability Law and Policy, NUI Galway. Professor Flynn outlined for the DAC the reporting process under the Convention, strategies for engaging the UN Committee, and good practices for ongoing monitoring of disability rights. Similarly, the need for participation of Disabled Persons Organisations has been a consistent concern for the DAC, informed in part by its engagement with Mr. Patrick Malone of Disability Action Northern Ireland. Mr. Malone highlighted how capacity building and network development among DPOs at local and national level is needed to ensure their effective participation in CRPD implementation. The DAC furthered its consideration of participation through engagement with the Vice-President of the European Disability Forum, Mr. Pat Clarke, who outlined the work of the European Disability Forum as part of the CRPD monitoring framework for the EU.
The DAC is recognised internationally as an exemplar of CRPD-standard participation. For example, the South African Human Rights Commission initiated a study visit to the Commission to learn about the DAC as a participation mechanism in Ireland’s CRPD monitoring framework. DAC members played a key role in the study visit, engaging the delegation in detailed discussions around participation in CRPD monitoring with a view to informing the establishment of South Africa’s Independent Monitoring Mechanism for CRPD. Following the engagement, the South African Human Rights Commission invited DAC Chair Dr. Rosaleen McDonagh to record a podcast interview about the DAC and the impact of its work for persons with disabilities in Ireland.
DAC perspectives and reflections on participation have significantly enrichened Commission deliberations, informed planning around public affairs engagement and directly fed into Commission submissions. For example, the DAC’s advice on barriers to political participation for disabled people informed the Commission’s policy positions concerning electoral reform. The Commission has advanced these positions in correspondence with the Minister for Housing, Planning and Local Government, and through submissions to Government on the establishment of an electoral commission and on the General Scheme of the Electoral Reform Bill 2020. The Commission also drew heavily on DAC perspectives regarding participation and DPOs in its submission to the Consultation on Terms of Reference and Work Programme for the Joint Oireachtas Committee on Disability Matters in November 2020.
The DAC has considered other CRPD rights such as the rights to independent living, equal recognition before the law, and access to justice. In its consideration of the right to living independently and being included in the community, the DAC engaged with the Director of Independent Living Movement Ireland, Mr. Damien Walshe. Key issues included the need for the State to provide supports to enable the autonomy of disabled people, including more investment in Personal Assistance Services, and greater access to housing in the community. On the right to equal recognition before the law, the DAC engaged the Director of the Decision Support Service, Ms. Aine Flynn, on the State’s transition to a supported decision making framework. A significant concern for the DAC was the delays that have arisen in respect of the decision support service and the impact this has had on disabled persons who continue to be denied the right to legal capacity. Finally, in considering access to justice for persons with disabilities, the DAC discussed issues including barriers to disabled people seeking justice through the courts and the inadequate representation of disabled people in professions within the justice system.
Socio-economic rights have also been an important focus, including the rights to education, employment, social protection and health. The DAC engaged with Dr. Shivaun Quinlivan of NUI Galway to inform its consideration of the right to inclusive education. Dr. Quinlivan’s contribution explored the concept of inclusive education under the CRPD and the shift in approach required for its implementation. The DAC has deliberated on the issue of work and employment for disabled people. In this regard, its advice guided the Commission’s Strategic Engagement team in its development of the Commission’s conference ‘Achieving Equality at Work: Reasonable Accommodation in Practice’. DAC members also played leading roles in the delivery of the conference itself, with some members facilitating and participating in workshops while one acted as the conference rapporteur. The DAC considered the right to social protection for disabled people, with key issues identified to include poverty and the cost of disability. Regarding the right to health, concerns discussed by the DAC included the persistence of medicalised understandings of disability within healthcare, as well as how inadequacies in the health system as a whole have a disproportionate impact on disabled people given their socio-economic marginalisation.
While the DAC has taken an intersectional approach across its work, it has given specific consideration to the rights of children with disabilities and women with disabilities. Regarding the rights of disabled women and girls, the DAC discussed key issues with the DPO Disabled Women Ireland, including the gendered impact of disability issues, inadequate support for women-led Disabled Persons Organisations, violence against women with disabilities, and parenting for women with disabilities. Considering the rights of children with disabilities, the DAC identified facilitating the ‘voice of the child’ for disabled children as a central concern, including in respect of the work of the Commission. In this regard, the DAC has advised the Commission’s Strategic Engagement team on a planned participatory event with disabled children and young people. In addition, DAC advice directed the design and development of the Commission’s ground breaking All Human All Equal disability rights awareness campaign, which featured a strong intersectional perspective and in which several DAC members participated directly.
The impact of COVID-19 on persons with disabilities became an area of significant concern for the DAC following the onset of the pandemic, with its deliberations in this regard directly feeding into Commission submissions and media engagement. DAC perspectives guided a dedicated opinion piece on disability rights during COVID-19 by Commission member (and then DAC Chair) Dr. Frank Conaty, published by the Irish Examiner. DAC perspectives shaped a Commission submission to the Oireachtas Special Committee on COVID-19 Response, on which then DAC Chair Dr. Frank Conaty and Commission member Professor Caroline Fennell appeared before the Oireachtas committee to engage on. DAC concerns about ambiguity in the guidance for healthcare decision-makers regarding how disability should be treated in a critical care triage process if demand for critical healthcare exceeds supply led the Commission to make a submission on this issue to the Minister for Health. In addition, DAC concerns led the Commission to engage the media with a call for the State to engage proactively with disabled people in its COVID-19 response planning on issues such as school closures.
The DAC has also considered and advised the Commission on emerging issues and submissions relating to disability rights. DAC discussions and considerations greatly strengthened the Commission’s submission to Government on the Dying with Dignity Bill 2020, which prioritised disability rights perspectives throughout. DAC perspectives were at the centre of the Commission’s submission to the Joint Oireachtas Committee on Disability Matters regarding its terms of reference and work programme, in which the Commission aligned its priorities for the Oireachtas Committee to DAC areas of concern and consideration. DAC views guided the Commission’s engagement with the same Oireachtas Committee in respect of ratification of the Optional Protocol to the CRPD, with the Chair and Vice-Chair of the DAC appearing before the committee. The DAC has advised the Commission on key emerging issues such as disability hate crime, as well as the Department of Health dossiers on children with autism involved in legal proceedings against the State.
In addition, supporting the work of the DAC has greatly improved the Commission’s organisational experience and capacity in terms of providing the highest standards of accessibility and reasonable accommodations. Of particular note in this regard is that Commission staff worked closely with DAC members to design a tailored DAC travel and subsistence policy, which sets out a comprehensive framework for the provision of supports and reasonable accommodations to maximise members’ participation in the DAC. DAC perspectives have spurred improved accessibility across the Commission’s practice more broadly. Examples include the provision of Irish Sign Language translation videos online, redesign of the Commission’s website ihrec.ie, making a quiet room available at Commission events, and accessible formatting of Commission publications.
Commission work on disability rights 2019-2021
This section of the paper maps out where the Commission has sought to advance disability rights across the execution of its functions in the period, including through policy statements and submissions, reports to international treaty monitoring bodies, observations on legislation, legal casework, research studies, events, an awareness campaign, press engagement, and various other types of publications. A snapshot of the key disability rights issues addressed and leading messages promoted in each output is provided.
Policy statements and submissions
The Commission’s Recommendations on the Establishment of an Electoral Commission recommended that the proposed Electoral Commission should work with disabled people to set accessibility standards for polling stations, and be mandated to promote more equal political participation for groups including persons with disabilities.
In its Policy Statement on the ratification of the Istanbul Convention, the Commission highlighted that women and girls with disabilities face particular risks and different experiences of abuse and violence. In this regard, the Commission noted the need for: measures to ensure the accessibility of gender-based violence services, including provision of ISL interpreting; targeted awareness raising; reform of the framework on legal capacity; collection of disaggregated data; and the introduction of adult safeguarding legislation.
The Commission’s submission on the Review of the Prohibition of Incitement to Hatred Act 1989 recommended that the grounds upon which incitement to hatred is prohibited should, at a minimum, be aligned to the grounds protected under Irish equality legislation, including disability.
In a Submission to the Department of the Taoiseach on the European Semester 2020 and the National Reform Programme, the Commission raised concerns that discrimination on the grounds of disability remains persistent, pernicious and prevalent in Ireland’s workplaces and recruitment practices. The Commission expressed the view that integrating reasonable accommodation into routine recruitment, selection and employment processes is essential to address the employment gap for people with disabilities.
With its Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State’s Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies, the Commission noted that the pandemic has exposed gaps in the State’s legislative framework. These include the non-commencement and delayed reform of enacted legislation, for example the Assisted Capacity Decision Making Act 2014, and the Mental Health Act 2001, as well as outstanding legislation including the Disability (Miscellaneous Provisions) Bill. The Commission also voiced concerns about the accessibility of public health information, recommending that active early engagement with disabled people through DPOs would have helped to identify such issues and alleviate risk. On 9 September 2020, the Commission appeared before the Special Committee on COVID-19 Response to engage on the submission.
In November 2020, the Commission responded to a Consultation on Terms of Reference and Work Programme for the Joint Oireachtas Committee on Disability Matters. The Commission recommended that the Committee’s Terms of Reference should refer to the CRPD in respect of defining persons with disabilities and recognising their diversity, guiding principles, and participation. In terms of the Committee’s work programme, the Commission recommended a focus on CRPD provisions concerning the participation of DPOs, COVID-19 response, independent living, work and employment, political participation, women and children with disabilities, the legislative framework on disability, and the Optional Protocol to the Convention. The Commission appeared before the Committee to engage on the submission on 11 November 2020.
The Commission’s White Paper Submission Direct Provision recommended there should be suitable specialised accommodation for persons with disabilities in a reformed international protection system, with accommodation needs and reasonable accommodation requirements to be assessed via ongoing ‘vulnerability assessments’ in line with EU law.
Observations by the Irish Human Rights and Equality Commission on National Guidance on Prioritisation in Access to Critical Care in a Pandemic raised concerns about ambiguity in the guidance for healthcare decision-makers regarding how age and disability should be treated in a critical care triage process if demand for critical healthcare exceeds supply. With these observations issued to the Minister for Health, the Commission recommended that a participative consultation process to engage with relevant rights holders or their representatives, and draw on human rights and equality expertise, be initiated to further refine the guidance documents for healthcare decision makers.
With its submission to the Oireachtas Special Committee on COVID-19 Response concerning The Impact of COVID-19 on People with Disabilities, the Commission outlined how COVID-19 gave rise to significant risks of discrimination and the undermining of rights for persons with disabilities. Recognising the disproportionate impact of COVID-19 in congregated settings, the Commission recommended that a new approach to care consistent with the highest international human rights standards appears to be urgently necessary. The Commission also highlighted the impact on persons with disabilities whose full participation in economic, social and cultural life is dependent on the availability of appropriate and accessible services. Overall, the Commission recommended that an explicit human rights and equality-based approach be taken to build a transition out of COVID-19 that is fully inclusive of people with disabilities.
The Commission’s Submission to the Joint Committee on Key Issues affecting the Traveller Community noted that the higher rate of disability in the Traveller community has significant implications in terms of accessibility considerations arising in the provision of Traveller accommodation.
With its Submission to the Oireachtas Joint Committee on Justice, COVID-19 and Civil Liberties, the Commission raised concerns about the lack of participation in decision-making for groups likely to be particularly impacted by COVID-19-related legislation and its enforcement, including disabled people. The Commission further noted there has been little evidence in the policy response that the need to balance the requirement to protect health and life, and other rights and freedoms, has reflected the particular rights and freedoms of people with disabilities.
The Commission’s Comments on Ireland’s 16th National Report on the implementation of the European Social Charter raised concerns regarding children’s access to disability services, specifically in respect of poor inter-agency collaboration between State bodies and persistent shortcomings in the assessment of need process. The Commission also expressed concern about education for children with disabilities, noting issues regarding the non-commencement of the EPSEN Act 2004 and the use of restrictive practices in schools.
The Commission highlighted a range of disability rights issues in its Submission to the Universal Periodic Review of the UN Human Rights Council: Second Cycle Mid-Term Review of Ireland. These included ratification of the Optional Protocol to the CRPD, delays to legislation providing deprivation of liberty safeguards, inadequate implementation of the National Disability Inclusion Strategy, high rates of disability discrimination, low rates of disability employment, non-commencement of disability legislation, and delays to the establishment of the Decision Support Service.
The Commission’s Statement on the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence noted that women and girls with disabilities face particular risks and different experiences of abuse and violence. The Commission highlighted the need for domestic violence services to be accessible for disabled people, including through provision of Irish Sign Language interpreting. The Commission further recommended that targeted measures be developed to raise awareness among disabled people of the State’s responsibility to prevent and combat violence against women and domestic violence.
The Commission met with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on its country visit to Ireland in 2019. The Commission briefed the Committee primarily on issues concerning the rights of persons in mental health establishments and in residential disability services.
With its Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th to 9th Report, the Commission outlined how ethnic minority young people had highlighted mental health issues in their engagement with the Commission’s BeHeardOnCERD consultation event. The Commission recommended that future legislative and policy developments reflect the prevalence of mental health issues among minority ethnic communities, the barriers they face in accessing services, and the public health challenges of addressing the social determinants of mental ill-health. The Commission also recommended that the State introduce measures to progress and evaluate the delivery of cultural competency training across frontline health services and ensure that the workforce fully reflects the diversity of the population.
In its Comments on Ireland’s 17th National Report on the Implementation of the European Social Charter, the Commission expressed its concern that the State’s housing policy potentially exposes minority and vulnerable groups, including people with disabilities, to greater levels of discrimination in accessing housing, inequalities in housing quality outcomes (deprivation and overcrowding), and to a higher risk of homelessness.
The Commission’s Submission to the UN Committee against Torture on the List of Issues for the Third Examination of Ireland addressed disability rights including non-commencement of the Assisted Decision Making (Capacity) Act 2015 and Mental Health (Amendment) Act 2018, Wardship, delays to legislation on deprivation of liberty safeguards, State responses to reports of abuse in residential settings, shortcomings on disaggregated disability data, and the need for disability assessments in the international protection system.
In its Submission to the UN Committee on the Rights of the Child on the List of Issues Prior to Reporting for the fourth periodic examination of Ireland, the Commission raised concerns regarding need to ratify the Optional Protocol to the CRPD, inconsistent definitions of disability in law, non-commencement in full of the Disability Act 2005 and the EPSEN Act 2004, delays in the provision of assessments of need to children with disabilities, shortcomings in children’s mental health services, use of reduced timetables in schools, the disproportionate impact of COVID-19 related school closures on disabled children, and inadequacies in the State’s investigation into the abuse of children with intellectual disabilities in the care system.
The Commission’s Submission to the United Nations Human Rights Committee on the List of Issues for the Fifth Periodic Examination of Ireland addressed a range of disability rights concerns. These included delays to legislation on deprivation of liberty safeguards and to reform the Mental Health Act 2001, the State response to abuse in disability care settings and in children’s institutions, compliance of the Assisted Decision Making (Capacity) Act 2015 with CRPD standards, disability access to domestic violence services, the rights of prisoners with disabilities, voting accessibility, and barriers to participation in political life.
With its Submission to the United Nations Committee on the Elimination of Discrimination Against Women on the follow-up procedure to Ireland’s combined sixth and seventh periodic report, the Commission highlighted the importance of ensuring that comprehensive, accessible and reliable health information on abortion services is available to the public, including women with disabilities.
The Commission’s Submission to the Third Universal Periodic Review Cycle for Ireland highlighted the significant reform required to the State’s legislative and policy framework in respect of disability assessments, education, mental health treatment, deprivation of liberty, and the Commission’s prospective Independent Monitoring Mechanism role. Non-ratification of the Optional Protocol to the CRPD was highlighted, as were concerns regarding disabled people’s access to employment, poverty, education, healthcare and political participation. The Commission further highlighted the slow pace of the State’s deinstitutionalisation programme, marginalisation and discrimination in housing, poorer healthcare outcomes, the prevalence of experiences of discrimination generally, issues surrounding involuntary treatment in mental health services, and the impact of COVID-19. The Commission recommended measures to address this range of issues including development of a time-bound programme of legislative reform, close cooperation with disabled people and Disabled Persons Organisations, and targeted positive action measures.
The Commission’s Response to the Public Consultation on the Review of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 noted that the law providing that only one conviction can ever become spent likely has a disproportionate effect by excluding specific groups that may have accumulated multiple offences, including for reasons of disability (for example addiction or mental health issues). In this regard the Commission recommended that no limitation be placed on the number of convictions that can be spent per person, and that an equality impact assessment be carried out on the current 2016 Act, and on any proposed reform.
In its Submission to the Committee on Justice on the Dying with Dignity Bill 2020, the Commission noted that legislation to provide for physician-assisted dying must be accompanied by strong measures to protect the right to life of persons with disabilities. The Commission highlighted disabled people’s right to participate in the development of such legislation and recommended that, prior to passing law of this nature, the State must ensure a “supported” decision making framework is in place to provide disabled people with equal protection before the law. The Commissions further recommended that: development of any legislation of this kind should involve consideration of the adequacy of health and social services provided to disabled people; the Bill should be accompanied by law that provides for basic legal rights to independent living and palliative health care services; the Bill should state unequivocally that no person would qualify solely on the ground of disability (neurological, mental or physical); the Bill should require that accessible information must be provided to ensure free and informed consent; and that the Bill should provide for disabled people to participate in the operation of any such legislation, should it be passed.
With its Submission to the Committee on Housing, Local Government and Heritage on the Electoral Reform Bill, the Commission reiterated its 2019 recommendations that the proposed Electoral Commission should work with disabled people to set accessibility standards for polling stations, and be mandated to promote more equal political participation for groups including persons with disabilities.
The Commission’s Submission to the Joint Committee on Justice on the General Scheme of the Smuggling of Persons Bill 2020 recommended there should be specific rights and protections for persons with disabilities in the legal framework on trafficking. These should include an identification process that ensures measures are in place to protect the rights of people with disabilities, and provision for trafficking-related offences to be aggravated where the victim is a disabled person.
With its Submission to the Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht on the General Scheme of the Online Safety and Media Regulation Bill, the Commission highlighted CRPD standards on accessibility and their relevance to the prospective Media Commission. The Commission’s recommendations included that the proposed law should explicitly protect disabled people from hate speech or incitement to hatred online, and that the legislation should be revised in close cooperation with disabled people and their representative organisations to ensure persons with disabilities have meaningful access to and can engage with media and online services.
The Commission’s Submission to the Minister for Justice on the General Scheme of the Judicial Appointments Commission Bill 2020 notes that the judiciary should be representative of the diversity of society, including persons with disabilities. Towards that end, the submission makes recommendations to ensure diverse representation among members of the proposed Judicial Appointments Commission, which the Commission also recommends should collect and publish disaggregated equality data in relation to both candidates and appointments to the judiciary.
In its Submission on the General Scheme of the Family Court Bill (2020), the Commission notes that the current Irish system of child and family law proceedings are not child, family or disability friendly, despite disabled people being disproportionately represented in such proceedings. The Commission recommended that legislation underpinning the family court system should include an explicit guiding principle recognising the rights of persons with disabilities, including access to justice and accessibility, and that the proposed Family Law Rules Committee to oversee the reformed system should include representation of disabled people.
Legal casework and information service
Queries to the Commission’s Your Rights information service concerning discrimination on the disability ground have been consistently high during the strategic period, as highlighted in the Commission’s relevant annual reports. In 2019, queries regarding disability discrimination made up almost a third of all contacts to the service, making it the most prevalent equality ground on which the Commission was contacted that year. Concerns regarding disability discrimination were again the most prevalent equality ground for contact to the service in 2020, representing 54% of all queries received by the Commission that year.
In its legal submissions as an amicus curiae (friend of the court) to the Supreme Court in the case Daly v. Nano Nagle, the Commission argued that the provision of reasonable accommodation in the workplace must be interpreted in accordance with Ireland’s obligations under the CRPD. The Commission also argued that reasonable accommodation can include reorganisation of work or the distribution of tasks, and that an employer should consult with an employee before making decisions about reasonable accommodation. The Supreme Court judgment focused on the dignity of the person and the centrality of the State’s obligations under the CRPD, ruling that reasonable accommodation can involve a redistribution of any task or duty in a job, as long as not disproportionate in the context of the employment in question, and setting out an expectation of consultation with employees on reasonable accommodation.
The Commission exercised its amicus curiae role in the case AC and Others vrs Cork University Hospital and Others, which explored the lawfulness of the procedures under which someone can be kept in a hospital or nursing home, and made a ward of court. In its judgment, the Supreme Court held that the fair procedure rights of the woman at the centre of the case (‘AC’) were not vindicated in how she was made a ward of court. The Court raised specific concerns about the absence of legal aid in cases such as these, while also ruling that the notice given for the wardship hearing in the case was too short to allow for the woman’s views to be conveyed to the Court. In this regard, the Court made clear the need for the person concerned to be involved in decisions which impact directly upon them in such cases.
The Commission provided legal representation to Mr. Cunningham in the High Court case Cunningham v. Irish Prison Service, which looked at whether the Irish Prison Service must provide reasonable accommodation under the Employment Equality Acts to prison officers with disabilities. The High Court held that the Labour Court was wrong in law to find that the Irish Prison Service had a blanket exemption in relation to providing reasonable accommodation to its staff under Irish equality law.
The Commission acted as amicus curiae to the Supreme Court in the Matter of JJ, a case focused on the medical treatment of an eleven-year-old boy who suffered life changing neurological injuries in an accident. The Commission argued that any decision in respect of John’s treatment had to be made in a manner that balanced and protected his constitutional rights as a child, with due regard to the rights of his parents. The Commission also queried whether the decision to make John a ward of court was a proportionate interference with his rights in circumstances where, the Commission argued, it removed decision-making capacity from his parents.
The Commission provided direct legal representation in a case of a pub customer with a brain tumour who was asked to leave a pub for appearing unsteady on his feet. Despite explaining his disability directly to staff, the man was asked to leave the premises, which caused him significant distress and embarrassment. The matter was settled without court hearing, with the licensed premises agreeing to: issue a meaningful apology to the man alongside compensation of €3,500; provide a policy on treating all customers equally and making reasonable accommodation for customers with disabilities; and for its management to attend an annual equality training course.
The Commission provided legal representation in the case of a man who successfully challenged his dismissal from employment with Sky Handling Partner Ltd because he experienced discrimination on the grounds of his disability. The WRC ordered that Sky Handling Partner Ltd. must conduct a review of its procedures in relation to employment policies and practices to ensure compliance with the Employment Equality Acts, in addition to paying the man €15,000 in compensation, the equivalent of 18 months’ pay.
The Commission was granted liberty by the High Court to exercise its amicus curiae function in the case V. v Minister for Health and Ors, which concerned a man with an intellectual disability who was prevented from marrying his fiancée following an application to the High Court to have him made a ward of court. Section 7.1 of the Assisted Decision Making Capacity Act 2015 was commenced before the case was heard, repealing the 1811 Marriage of Lunatics Act and providing for the right to marry to be based on capacity.
Leading up to the strategic period 2019-2021, the Commission co-published with the ESRI a series of landmark research reports on discrimination.
The report Who experiences discrimination in Ireland? found that persons with disabilities experience higher rates of discrimination than people without a disability in all areas of life surveyed, including in the workplace, while seeking work, and in accessing both private and public services.
Another report in the series, Discrimination and Inequality in Housing in Ireland, found that disabled people are among the most disadvantaged groups in terms of housing, experiencing high risks of discrimination in access to housing and of environmental deprivation, as well as being over-represented among the homeless population with more than one-in-four homeless people having a disability.
A report specifically on disability, Disability and Discrimination in Ireland, showed that disabled people experience discrimination more frequently than others do, and that discrimination has a more serious effect on their wellbeing than it does on others. It also found that disabled people are twice as likely to experience discrimination in looking for work or in employment, three time more likely in accessing public services, and significantly more likely in accessing private services.
Following on from this research, the Commission continued advancing the development of evidence across equality grounds, including disability, during the strategic period 2019-2021. Firstly, the IHREC-ESRI technical paper European Survey Data on Attitudes to Equality and Human Rights mapped the availability of Irish data on attitudes to equality and human rights issues from European surveys carried out over the period 2000 – 2018. The report identifies different kinds of survey questions relating to disability and finds that overall there is a likely shortage of up-to-date comparative data on attitudes towards people with disabilities across the survey instruments reviewed.
In 2020, the Commission-funded report Ireland’s Emergency Powers During the COVID-19 Pandemic found that the Government persistently blurred the boundary between legal requirements and public health guidance in its COVID-19 response. The report also found that as the pandemic progressed, there has been little evidence in the policy response that the need to balance the requirement to protect health and life, and other rights and freedoms, has reflected the particular rights and freedoms of persons with disabilities.
The IHREC-ESRI report Monitoring Decent Work in Ireland examines a suite of relevant dimensions and associated indicators to appraise the right to decent work in Ireland. The study found that disabled persons experience higher levels of unemployment, are less likely to work in high-skilled jobs, report higher rates of discrimination in the workplace, and may be more likely to experience work-related illnesses.
The IHREC-ESRI report Monitoring adequate housing in Ireland identifies six key dimensions of the right to adequate housing and examines these in the Irish context. The study found that persons with disabilities: have a higher chance of experiencing housing deprivation; are more likely to experience difficulty keeping their home warm; are less likely to rent in the private market and are more likely to live in public housing; are more likely to experience affordability problems, such as being in poverty after housing costs are paid, and being in arrears on housing costs; experience a lack of accessible housing; and are much more likely to feel unsafe when walking alone in their neighbourhood after dark.
The Commission’s submission to the Anti-Racism Committee, Developing a National Action Plan Against Racism, notes research that correlates experiences of racism with mental health issues including high levels of depression, anxiety, and low self-esteem. The submission recommends that the forthcoming National Action Plan Against Racism include measures to improve mental health services and outcomes, including through development of a designated mental health support service for ethnic minority groups. It also recommends the plan provide suicide prevention supports for the Traveller community and support for the suicide bereaved, and task the Mental Health Commission to establish a participatory taskforce on minority ethnic mental health.
With its Submission to the Mental Health Commission’s Public Consultation on the Rules and Code of Practice governing the use of seclusion and restraint, the Commission made recommendations in respect of securing human rights standards in the framework governing the use of seclusion and restraint in mental health establishments. The Commission’s recommendations concerned aligning the framework on seclusion and restraint with ongoing legislative developments, embedding the will and preferences principle, DPO participation in the review, improving disaggregated data for monitoring implementation, and the need for regular review of the framework.
The Commission conference Achieving Equality at Work: Reasonable Accommodation in Practice convened over 150 public and private sector employers, trade unions, people with disabilities and civil society organisations for a series of talks and workshops with the aim of making reasonable accommodation a part of everyday employment policy and practice.
The Commission seminar De-institutionalisation and the implementation of the CRPD Article 19 saw the European Union Fundamental Rights Agency launch its report ‘From institutions to community living for persons with disabilities: perspectives from the ground’. Participants exchanged views on the issue of deinstitutionalization in Ireland, including on how to measure progress, and the way forward for this process at the national and local levels.
Public awareness campaign
The Commission’s All Human All Equal public awareness campaign aimed to inform attitudes towards disability and raise awareness of the rights of persons with disabilities to participate with dignity in everyday life. The campaign featured thirteen people sharing their experiences of disability to camera, with a wide range of disabilities represented. Advice of the Commission’s Disability Advisory Committee directed the design and development of the campaign, and some DAC members participated in the campaign itself.
The Commission’s press statement State COVID Planning Must Not Discriminate Against People with Disabilities highlighted the impact of school closures on disabled students as an example of where human rights and equality issues with the COVID-19 response were not being proactively factored into planning for service delivery. The Commission renewed its consistent calls for an explicit human rights and equality-based approach that is fully inclusive of people with disabilities to be taken to the provision of public services during COVID-19.
With its Statement on State Collection of Information on Children with Autism, the Commission called on the Department of Health to publish its independent review of its practice of collecting information on children with autism involved in legal challenges to the State for access to basic services. The Commission noted the reported practices of the Department of Health raise significant human rights concerns about the State’s approach to the privacy rights of citizens, patient confidentiality when dealing with public health and social care services, and in particular, its fundamental approach to people with a disability and their families.
With the press statement Commission Calls on Government to Establish Annual Dáil Statement on Progress on Ireland’s Disability Rights Obligations, the Commission called on the Minister for Equality and the Minister of State for Disability to commit to an annual Dáil statement on how Ireland is meeting its human rights obligations for people with disabilities. This coincided with the Commission’s appearance before the Oireachtas’ Disability Matters Committee where the Commission set out its concern about growing delays in Ireland’s implementation and reporting under the UN Convention.
With its Letter to political parties on the Programme for Government, the Commission urged that human rights and equality be central to the Programme for Government that was being negotiated at that time. The Commission recommended that the prospective Government prioritise the commencement, reform and enactment, as appropriate, of legislation to support actions to bring Ireland into compliance with the CRPD. The Commission also called for the Government to ratify outstanding international treaties including the Optional Protocol to the CRPD.
The Commission’s Guidance Note – COVID-19 and the Public Sector Equality and Human Rights Duty aimed to assist public bodies to utilise the Public Sector Equality and Human Rights Duty to incorporate equality and human rights considerations in COVID-19 response and recovery for the benefit of staff and service users, as part of their statutory duty. The guidance highlights the obligation for reasonable accommodations to be provided to disabled people.
The Commission published A Guide to the Equal Status Acts and A Guide the Employment Equality Acts, which include information on the rights of persons with disabilities in accessing goods and services and in the workplace.
Appendix: DAC meetings 2019-2021. THis is a summary of the topics covered at DAC meetings. Sone meetings had an expert contributor.
20 February 2019 Participation and the CRPD; political participation. Expert contributor Stig Langvad, former CRPD committee member.
17 April 2019 Participation in CRPD monitoring, Article 33.3. Expert contributor Professor Eilionóir Flynn, NUI Galway.
3 July 2019 Development of Disabled Persons Organisations (DPOs). Expert contributor Patrick Malone, Disability Action Northern Ireland.
8 October 2019 Participation in implementation and monitoring, Articles 33.3 and 4.3. Expert contributor Pat Clarke, Vice-President of the European Disability Forum.
11 December 2019 Inclusive education, Article 24. Expert contributor Dr. Shivaun Quinlivan of NUI Galway.
6 February 2020 Independent living, Article 19. Expert contributor Damien Walshe, Independent Living Movement Ireland.
22 April 2020 Impact of COVID-19, Article 11.
27 May 2020 Work and employment, Article 27.
24 June 2020 Adequate standard of living and social protection, Article 28.
2 September 2020 Health, Article 25.
7 October 2020 Children with disabilities, Article 7.
2 December 2020 Equal recognition before the law, Article 12. Expert contributor Aine Flynn, Director of the Decision Support Service.
23 February 2021 Dying with Dignity bill; Access to Justice, Article 13.
28 April 2021 Disability hate crime; Department of Health dossiers on children with autism involved in legal proceedings against the State.
23 June 2021 Women with disabilities, Article 6. Expert contributor Disabled Women Ireland
15 September 2021 Implementation of CRPD Article 4.3.
3 December 2021 Equality Acts Review; Participation models and CRPD Article 4.3.