In a key decision the Committee on the Rights of Persons with Disabilities of the UN overturned the decision by public authorities in Finland to withhold personal assistance from a disabled person. Finland received the recommendation to reconsider the application for PA, provide compensation and amend its legislation
The decision against the Finnish authorities is based on an individual complaint by a disabled person that felt discriminated against. The case began in January 2014 when the author of the complaint who has a physical and an intellectual disability rented an apartment in order to live independently on his own. To live independently, personal assistance was required. The author applied for 140 hours of personal assistance per week to the local municipality who, according to Finnish law, was in charge of either providing cost compensation, a service voucher or organising the purchase of service from a provider.
Odysee through the Finnish legal system
More than one year later, in October 2015, the municipality decided to grant the disabled person 60 hours of personal assistance per week for out of house usage only. The application for a personal assistant to support the person inside the home was rejected.
How did the authority justify the decision? In Finland, the provision of personal assistance is regulated through the so-called Disability Services Act (DSA), which was last reformed in 2009. According to the law, disabled people are required to have the resources to define the contents and modalities of implementation of their personal assistance. The criterion of own resources is defined as the capacity to define the content of one’s personal assistance.
The disabled person did not accept the decision and decided to appeal the outcome. The case started to make its way through committees and courts. Each time the original decision of the municipal authority was confirmed, the authors´ appeal was rejected. One and a half years later, Finland’s´ supreme court decided to pronounce the final dismissal of the disabled person’s complaint.
Justifications for withholding PA
With each rejection of the author´s appeal, Finland’s judiciary reiterated the rules of the DSA that a disabled persons is required to have the resources to define the contents of assistance and the way of realising it. According to the various judges involved, persons with disabilities who according to third party assessment are unable to meet this criterion are excluded from personal assistance. In most cases, the argument continued, the need for assistance was based on care, treatment and surveillance. To justify the decision in this specific case, the courts quoted a medical report about the complainant stating the author did not have the ability to determine content and modalities of assistance.
The disabled person affected by this decision cannot be accommodated into group residence because it would be detrimental to his health. The decisions by the Finnish authorities would have forced many people in the same place to move into an institution nonetheless. In this case, the person had to move back to their parents. Institutionalisation was avoided, but the plans to live independently had been thwarted.
Complaint procedure at the UN Committee on the Rights of Persons with Disabilities
Having exhausted all legal remedies in the national context, the disabled person decided to communicate the case to the Committee on the Rights of Persons with Disabilities (CRPD). The CRPD is an UN body tasked to monitor the implementation of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
In his complaint to the CPRD Committee, the disabled person claimed his rights under article 19 and article 5 of the UNCRPD, as well as under General Comment No 5 had been violated by the Finnish authorities. Without a personal assistant, he is totally dependent on the informal support provided by his parents, as the only way to avoid institutionalisation. Should the parents become unable to provide support, institutionalisation would be inevitable. As a result, his right to personal choice and control over his live were being violated. The violation of article 5, the principle of equality and non-discrimination, was taking place due to the resources criteria codified in the DSA. Because of this rule, the author himself, but also intellectually disabled people in general, were at a disadvantage compared to other disabled people.
The decision of the CPRD Committee
Having received the complaint in February 2018, the Committee published its verdict in March 2022. Three elements of the decision should be highlighted:
- The CRPD Committee stated that the refusal of in-home personal assistance because of an inability to choose is an ableist argument rejecting the human rights model of disability.
- The Committee decided that a violation of the author´s rights under article 19 (b) of the convention had taken place. The rejection of personal assistance had deprived the disabled person of support to independent living and inclusion in the community. In addition, the state party had not managed to explain why the author had the ability to determine the implementation of his personal assistance for out of home activities, but not in-home support.
- The resource criterion of the DSA had disproportionally affected the author as a person and thus resulted in indirect discrimination, codified in article 5, (1), (2) of the UNCRPD. The resource criterion had not only violated the author´s rights in this specific case, but also constituted a form of indirect discrimination against persons with intellectual disabilities in general.
- The state party, in this case Finland, had failed to fulfil its obligations under articles 19 and 5 (1), (2).
To support Finland in addressing the problem, the Committee gave the following recommendations:
- The Finnish authorities should reconsider the disabled person´s application for personal assistance and thus remedy the precarious situation the person has been in since 2014.
- Compensation should be provided for the costs incurred by going through the complaint procedure.
- Finland should take steps to prevent similar violations in the future by ensuring that the application of legislation is free of indirect discrimination.
- The Disability Service Act should be amended to ensure the resource criterion is not a barrier for disabled people of any type.
The CRPD Committee asks the state party to produce within six months a written response including action taken in the light of the present views and recommendations. Read the full Committee decision here.