IHREC Disability Work
January – September 2022
This paper provides an overview of the Commission’s work on disability rights since the launch of its new Strategy Statement 2022-2024.
This work includes policy statements and submissions, reports to international treaty monitoring bodies, observations on legislation, review of acts, legal casework, codes of practice, research reports, awareness-raising, and press statements.
In its Submission to the Committee on the Rights of the Child on Ireland’s combined fifth and sixth period reports, the Commission noted the particularly adverse effects of the pandemic on disabled children. The Submission raised a range of disability and mental health issues across the different areas covered in the Submission. A section of the Submission focused specifically on disabled children, with the Commission making recommendations on the definition of disability in the Equality Acts; the integration of the human rights model of disability across all relevant legislation; the timely provision of services and supports to disabled children by the HSE; the investigation of reports of abuse of disabled children in the care system; the care of disabled children in the home; access to early childhood education, early development programmes and inclusive education for disabled children; the review of the Education for Persons with Special Educational Needs Act 2004; and the Irish Sign Language. Moreover, the section on basic health and welfare included a specific sub-section on mental health, under which the Commission recommended the State to urgently address the mental health needs of children in Ireland and to establish an accessible and independent child specific mental health advocacy and information service. The Commission also recommended that those working with children within mental health services should receive adequate training. In this sub-section, the Commission also made recommendations in relation to legislative updates, suicide, and racism.
In its Comments on Ireland’s 19th National Report on the implementation of the European Social Charter, the Commission expressed concerns about the provision for different rates of pay for disabled employees; the lack of an express right of disabled employees to consult with their employer in relation to the provision of reasonable accommodation in the workplace; the ongoing prevalence of discrimination in the Irish labour market; and the absence of civil legal aid for equality claims before the Workplace Relations Commission.
The Commission’s Trafficking in Human Beings in Ireland: Evaluation of the Implementation of the EU Anti-Trafficking Directive discussed the provision on victims with specific needs, which arise from disability.
In its Submission to the Human Rights Committee on Ireland’s fifth periodic report the Commission addressed a range of disability rights issues. These included barriers to participation in political life; support for disabled women and girls experiencing gender-based violence; access to reproductive rights for disabled women; the State’s response to historical abuse in institutional settings; the impact of the pandemic in institutional settings; deinstitutionalisation; delays in the commencement and reform of enacted legislation concerning legal capacity and people with psychosocial disabilities, and the compliance of this legislation with CRPD standards; rights of disabled people in detention; support for disabled applicants for international protection; voting accessibility; and the disproportionate representation of disabled people in the family law system.
The Commission’s Submission to the UN Committee on Economic, Social and Cultural Rights for the List of Issues on Ireland’s Fourth Periodic Report included a specific section onDisability Rights. Within this section, the Commission drew attention to the following issues: planned legislative reform to bring Ireland into compliance with the CRDP; giving effect to, and monitoring, the recognition of Irish Sign Language; measures to address the labour market marginalisation of disabled persons; progress in delivering the CRDP Implementation Plan; the timeline for the ratification of the CRPD Optional Protocol; the implementation of Article 4.3 CRPD and CRPD General Comment 7 (on the participation of disabled persons, through their representative organisations, in the implementation and monitoring of the Convention); and the support of the State for the establishment and ongoing work of disabled persons organisations.
In Observations on the General Scheme of the Garda Síochána (Powers) Bill, the Commission made a number of recommendations regarding the treatment of disabled people. This included the recommendations to include in this legislation: the definition of disability under the CRPD; an express obligation for Gardaí to exercise their powers in a manner that takes account of the rights and inherent dignity of all disabled people; provision for the training of Gardaí on how to meet the needs of disabled people; and a recognition of the State’s obligation to provide reasonable accommodation for disabled people in custody.
The Commission’s Submission on the General Scheme of the Mental Health (Amendment) Bill made 76 recommendations, including on the elimination of the use of detention and coercion for the treatment of persons with psychosocial disabilities; on the alignment with the relevant mental health legislation, in particular the Assisted Decision Making (Capacity) Act 2015, in compliance with the CRPD standards; and on the consultation with persons with psychosocial disabilities. The Commission also made observations and recommendations in relation to the definition of ‘mental disorder’; the right of persons to an advocate; admission of involuntary and intermediate persons to approved inpatient facilities; requirements for consent to treatment; restrictive practices; admission of children to approved inpatient facilities; and the independent complaints mechanism.
In the Submission to the Minister for Justice on the General Scheme of the Garda Síochána (Digital Recording) Bill, the Commission focused on equality implications in the use of technology. The Commission also recommended that legislation provides that a member of An Garda Síochána operating a recording device or body-worn camera should inform an individual in an accessible language or format that they are being filmed and recorded.
In the Submission on the General Scheme of the Criminal Justice (Hate Crime) Bill, the Commission welcomed the inclusion of disability in the list of protected characteristics in draft legislation, and drew attention to the need for active engagement with disabled people in the decision-making processes. It also warned of the particular barriers that disabled persons face in reporting hate crime. In relation to the indicators that help judges and juries in assessing whether a particular offence was motivated by prejudice, the Commission noted the uniqueness of disability hate crime. In this regard, it recommended that further consideration be given to whether the General Scheme adequately addresses disability hate crime including ‘Mate Crime’ , as well as that the enactment of this legislation be accompanied by the publication of guidance on the specific bias indicators for each form of hate crime against a protected characteristic.
The Commission also appeared before the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth to outline its recommendations on the Pre-legislative scrutiny of the General Scheme of the Assisted Decision-Making (Capacity) (Amendment) Bill 2021. The Commission noted that every opportunity should be given to disabled people to meaningfully participate in pre-legislative scrutiny, and in the development and implementation of this legislation. It also made recommendations in relation to the role of the Commission as a CRPD Independent Monitoring Mechanism, the definition of disability, the nature of the appeals, the lack of clarity as regards legal representation, the lack of clarity on the timeframes within which applications to detain must occur, the need for more detail on how wards will be kept informed of the forthcoming changes to their wardship regime, and the need to give further consideration to the situation of disabled people in prison who might avail of decision-making supports. The Commission also pointed to the continuing failure to provide a system of deprivation of liberty safeguards.
Review of Acts pursuant to section 30 of the IHREC Act
In its Review of the Intoxicating Liquor Act pursuant to section 30 of the IHREC Act, the Commission conducted a review of section 19 of the Intoxicating Liquor Act, which provides that claims of discrimination arising in or at the point of entry to bars, restaurants, nightclubs and other places that serve alcohol must be brought before the District Court rather than the Workplace Relations Commission. The Commission found that section 19 of the Act disproportionately impacted disabled people, and that it did so in a significant way, making the enforcement of rights excessively difficult and in some cases virtually impossible. The Commission requested that necessary statutory amendments are made to bring these claims back within the jurisdiction of the Workplace Relations Commission.
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 2021, as highlighted in the Commission’s Annual Report 2021. Queries regarding disability discrimination made up 46% of queries related to the Equal Status Acts 2000-2018, 34% of queries related to the Employment Equality Acts 1998-2015, and 50% of queries related to the Intoxicating Liquor Act 2003.
The Commission acted as an amicus curiae (friend of the court) to the Supreme Court in the case Donnelly v. Minister for Social Protection & Ireland, a case concerning a father who was deemed ineligible for the Domiciliary Care Allowance because his severely disabled child was resident in hospital for periods of time that were longer than specified in the legislation providing for the allowance. In its legal submissions, the Commission set out that the denial of access to the Domiciliary Care Allowance on account of the child’s hospitalisation should be viewed as discriminatory on the ground of disability. The Supreme Court’s decision dismissed the challenge, finding that the statutory classification, which distinguishes between parents who care for children with severe disabilities at home and parents caring for such children while they are in hospital, was not irrational and pursues a legitimate objective. This decision was noted by the Commission.
The Commission also acted as an amicus curiae (friend of the court) to the Court of Appeal in the OB case. The Commission argued that the manner in which the HSE carries out the Assessment of Need, which is required by the Disability Act 2005, is incomplete, as it determines that a person has a disability, but does not provide a diagnosis of the disability.
The Commission gave legal assistance to a mother and her two young sons in making an application to the Department of Education for the 2022 Home-Based Summer Programme to Support the Education or Care Needs of Students with Complex Needs. Subsequently, the Department of Education have agreed to grant individual allocations under the Scheme to both children (10 hours for four weeks for each child).
Codes of Practice
IHREC, with the approval of the Minister for Children, Equality, Disability, Integration and Youth, prepared a Code of Practice on Sexual Harassment and Harassment at Work, with the aim of giving practical guidance to employers, organisations, trade unions and employees on: what is meant by employment-related sexual harassment and harassment; how it can be prevented; and what steps ensure that adequate procedures are readily available to deal with the problem and to prevent its recurrence. The Employment Equality Acts (1998-2015) protects employees from employment-related sexual harassment and harassment based on one or more of the other prohibited grounds, including disability.
IHREC, with the approval of the Minister for Children, Equality, Disability, Integration and Youth, prepared also prepared a Code of Practice on Equal Pay. The Code includes a specific section on Disability and pay.
Informed by the advice of the Disability Advisory Committee at its meeting in May 2022, IHREC undertook a public consultation on a Code of Practice on the Nature and Extent of an Employer’s Obligations to Provide Reasonable Accommodation to Employees with Disabilities.
The report Housing Assistance and Discrimination: Scoping Study on the ‘Housing Assistance Ground’ under the Equal Status Acts 2000-2018, authored by Rory Hearne and Judy Walsh, found that discrimination continues to take place on the housing assistance ground, with those seeking to access accommodation, and in existing tenancies, continuing to face discrimination by landlords and estate agents because they are recipients of social housing assistance. The research identified disabled people as one of the subgroups particularly affected by housing assistance discrimination. The report also made a number of recommendations with the aim of improving access to justice on the housing assistance ground under the Equal Status Acts 2000-2018.
IHREC’s Disability Awareness Campaign #All Human #All Equal was airing in 2022 across TV, radio, digital and social media. Focusing on disability rights, the campaign features 13 disabled people from across Irish society, speaking in their own words about their experiences.
The Commission also launched a new eLearning module on the Public Sector Equality and Human Rights Duty to support public servants’ understanding of the human rights and equality obligations of their work.
In May 2022, the Commission responded with immediate concern about plans announced by the Minister of State for Special Education and Inclusion, to accommodate children with autism and other disabilities in the Dublin area in “Special Educational Needs” centres from September. The Commission emphasised that these young people have a right to education and for that education to be an appropriate education, which meets their needs. It questioned the lack of clarity in respect of this proposal, and renewed its consistent calls for an explicit human rights and equality-based approach to be taken to ensuring mainstream educational provision, which is fully inclusive of disabled people.