FIDH and Inclusion Europe v. Belgium: Chronicle of a Conviction Foretold

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On 3 February 2021 the European Committee of Social Rights (ECSR) publicized its decision in International Federation for Human Rights (FIDH) and Inclusion Europe v. Belgium. The decision followed a collective complaint by two organisations alleging a violation of Belgium’s obligations under the European Social Charter and is the latest in a series of ECSR-decisions on state obligations concerning the right to education of children with intellectual disabilities. As in its most recent decision pre-dating this decision, MDAC v. Belgium, the Committee found Belgium to be in violation both of its obligation not to discriminate against children with intellectual disabilities and of its obligation to ensure accessible inclusive education. A decision that should not have surprised anyone as it builds heavily on prior case law, according to Marie Spinoy and Kurt Willems, and that further confirms the benchmark status of the UN CRPD (framework) in this area. The decision also highlights once again the inherent yet complicated link between equality and inclusive education.

Where the prior case of MDAC v. Belgium concerned education for children with intellectual disabilities in the Flemish Community (education being a competence exercised by the Communities and not by the federal level), the allegations of FIDH and Inclusion Europe concerned this same area in the French Community of Belgium. Roughly speaking, children with intellectual disabilities would either attend special schools or mainstream schools (with or without ‘integration measures’). The Community divides the pupils into types depending on their medical condition and puts more formalities in place for some of these types than for others. Both anti-discrimination and education legislation provide for a right to reasonable accommodations for pupils with disabilities. The effects of this legislation are striking. The Committee in its decision notes that in the French Community, the number of pupils directed towards special education has increased dramatically. Between 2008 and 2018, the increase was 31% in pre-school level education, 13% in primary level education and 21% in secondary level education.

According to FIDH and Inclusion Europe this system violated articles 15, 17 and E of the (Revised) European Social Charter both by failing to progress towards inclusive education and by discriminating against various groups of pupils. Both the Belgian equality body Unia and the General Delegate for the Rights of the Child of the French Community intervened in the procedure, supporting the allegations against the state. Both the complaint and the decision in response to it can be analysed along two related angles: the right to education for children with disabilities and the discrimination assessment. We briefly consider the relationship between the two before going into the analysis of the decision itself.

Inclusive education and Equality: A Tale of Two Rights 

According to the international benchmark of the UN CRPD, the right to education for learners with disabilities comprises not only a right not to be discriminated against on the basis of disability but also the access to inclusive education at all levels (see esp. art. 24 CRPD & General Comment no. 4). These two aspects of the right are clearly interrelated. For example, the more accessible a school environment is, the less costly and onerous the implementation of an individual reasonable accommodation will usually be. Moreover, the right to education conceptually is widely considered to have an inherent equality dimension (see e.g. ECtHR case law). The inclusive equality of the CRPD in turn emphasizes the importance of participation in social life, including in education, and the avoidance of stigma that e.g. segregation could cause. Despite this overlap however, there are also important differences between these rights (see in extenso here). Accessibility imposes a duty of progressive implementation whereas the right not to be discriminated against (including the right to reasonable accommodations) is immediately enforceable. While the costs this imposes can play a role in the assessment of the latter, it is irrelevant when scrutinizing state progress on the accessibility duty. Further, accessibility is a ‘systems’ duty, requiring all relevant actors to reflect ex ante on how to make schools and other educational environments accessible to all. Non-discrimination concerns an individual right, that is to be implemented and ensured when an individual learner requires it.

In its most recent decision, the ECSR considers Belgium’s conduct on both rights, i.e. accessibility and non-discrimination (more specifically, the right to reasonable accommodations). Both Article 15 § 1 and 17 §§1 and 2 are relevant in this context. Article E, invoked in combination with these articles, prohibits discrimination in the enjoyment of these rights. As in its previous decisions AEH v. France and MDAC v. Belgium, the ECSR refers explicitly to the UN CRPD, its General Comment no. 4 on inclusive education and (for the first time the more recent) General Comment no. 6 on equality as relevant standard in this area..

Inclusive education: Great Expectations?

In accordance with prior case law, the emphasis of the assessment is on article 15§1 which requires states:

‘to take the necessary measures to provide persons with disabilities with (…) education (…) in the framework of general schemes wherever possible or, where this is not possible, through specialized bodies (…).’

According to the Belgian state article 15 therefore ‘recognises an inclusive vision of education but allows a system of special education’.

In earlier cases, the Committee had already indicated that the right to education for children with disabilities should be implemented in a mainstream school, a principle which it here repeated. States are thus left with little margin of appreciation in this matter. It also repeats the criteria for states’ obligations in the ‘exceptionally complex and particularly expensive’ achievement of the right to inclusive education: a reasonable timeframe, measurable progress and financing consistent with the maximum use of available resources. The Committee will be rigorous in its assessment given the importance of the Charter objective concerned, i.e. the full development of children with disabilities’ personality and physical and mental capacities through education and given the status of persons with disabilities as a vulnerable group.

In applying these principles to the French Community, the Committee notes that according to Unia a range of obstacles undermine the effective enjoyment of the right to inclusive education and it quotes the complainant organisations’ and Unia’s data and statistics on the growing number of pupils attending special schools. While Article 15 requires states to make maximum use of available resources to ensure the right to inclusive education, the legislation does not provide the additional resources required for an increased enjoyment of this right enabling schools to cater for the specific needs of pupils with disabilities. The Belgian Government provided no information as to how it planned to remedy this nor any practical reasons or clear explanation for the current burden on children with disabilities. Moreover, the complainants’ submissions as well as Unia’s and the General Delegate’s intervention indicated the lack of a coherent action plan towards effective inclusion. In its Concluding Observations on Belgium, the UN Committee on the Rights of Persons with Disabilities had similarly noted a lack of permanent adequate monitoring and evaluation of the relevant measures. All of this leads the Committee to find a violation of article 15, §1. For the same reasons, the Committee found a violation of the accessibility duty under article 17 of the Charter (requiring states to ensure that children and young persons have the education they need). Unlike in MDAC however, it does not find a violation of the article 15 right to an effective remedy as legal action provided under the relevant laws is not shown to be ineffective.

Shifting reasonable accommodations towards special education schools instead of mainstream schools: A catch-22

Article 15 in and of itself also prohibits all forms of discrimination, according to the Committee. Moreover, inclusive education implies that support and reasonable accommodations are provided to make accessibility effective. As in MDAC, the Committee thus holds there to be an inherent equality dimension to the right to education of children with disabilities. This appears to converge with article 24 UN CRPD containing both inclusive education and non-discrimination, including reasonable accommodations. Article 2 of the First to the Protocol to the European Convention on Human Rights similarly is said to have an inherent connection to equality although the Strasbourg Court’s strand of the case law on reasonable accommodations and inclusive education relies heavily on article 14 of the European Convention (article E’s counterpart). For the Committee the non-discrimination assessment is part of the scope of article 15 itself.  

It finds that the French Community fails to provide reasonable accommodations for children with intellectual disabilities and treats children with moderate or severe intellectual disabilities less favourably. For example, it does not cover the cost of speech therapy although this exclusion and the resulting difficulty in accessing language and communication often makes placement in special education inevitable. The Belgian Government cannot provide an objective and reasonable justification of this and thus violates article 15§1.

Thus – by designing a legislative system that directs pupils with intellectual disabilities towards special education, the government has created conditions where, far from preventing or facilitating the avoidance of special education, there is a risk that the child’s placement within special education may become inevitable. Indeed, as the Committee indicates, it is partly because they have difficulty in accessing language and communication that these children tend to obtain low results in IQ tests partly determining referral to special education. Conversely, if speech therapy were guaranteed, these children’s improved access to speech therapy would enable them to improve their cognitive and communication skills and therefore to increase their IQ test results.

A separate discrimination complaint (both under article 15 combined with article E and article 17 combined with article E) is rejected. While the complainant organisations claimed a discrimination on the basis of socio-economic origin in the access to inclusive education, the Committee finds no violation on this count as no specific evidence (argumentation or data) was proffered supporting these allegations.

A la recherché du temps perdu?

International Federation for Human Rights (FIDH) and Inclusion Europe v. Belgium is consistent with the Committee’s prior decisions in this area: article 15 requires states not to discriminate against students with disabilities and to progressively implement the right to inclusive education. It thus considers both obligations within the same assessment, recognizing the interrelation between equality and inclusive education. While this simultaneous assessment in its judicial counterpart in Strasbourg has on occasion led to impunity for slowly moving states (as we describe elsewhere), the Committee consistently does not shy away from stringently scrutinizing state progress on the road towards inclusive education finding a violation where such a plan is lacking.

The recent decision thus does not come as a surprise. Its conclusions were predictable, especially as far as their critique is concerned that Belgium cannot present a roadmap towards more inclusive education, and is as a result unable to give objective and reasonable justification for the delay in the realization of this right. Seven years after the first MDAC v. Belgium complaint was lodged, not much seems to have changed, even though the clock is ticking. The conclusion to be drawn from this Committee decision, as was already the case from its previous decision is clear : à la recherché du temps perdu – hopefully Flemish and French Community legislators in Belgium will make up for lost time.

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