MDAC v Belgium before the European Committee of Social Rights: The Right to Inclusive Education Pushed by the UN Convention on the Rights of Persons with Disabilities

Around the world, the great majority of disabled children are out-of-school. In Western countries, they are often educated in so-called ‘special schools’, which give them lower educational standards and impede their inclusion into society. In a recent case about the issue, the European Committee of Social Rights has found Belgium in breach of the European Social Charter. This case was lodged by Validity – formerly the Mental Disability Advocacy Center (MDAC). The parties were notified of the decision on 28 November 2017, but this decision was only made public on 29 March 2018.

The Charter, adopted in 1961, revised in 1996, and known for its à la carte provisions, contains two provisions on the right to education. Article 15(1) provides that States Parties must grant disabled people ‘education and vocational training in the framework of general schemes wherever possible’. Article 17(2), more generally, guarantees that children have access to ‘free primary and secondary education’. The Committee ruled that Belgium violated both of them.

This decision surely comes as a relief for the many parents of disabled children. I also want to stress an important point emerging from the MDAC v Belgium case. The outcome is proof of the filtering of international developments into the Council of Europe. This relates to the Convention on the Rights of Persons with Disabilities (CRPD) adopted by the UN in 2016. This Convention is taking deeper roots in the region. What is remarkable is the terminology used by the European Committee of Social Rights, which echoes that of the Committee on the Rights of Persons with Disabilities (CRPD Committee).

The Education of Disabled Children in Flanders

In Flanders, most disabled children are excluded from mainstream education (to be sure, the field of education falls entirely in the competences of the regions, so the Federal government just acted as a ‘letterbox’ in the case under examination). According to statistical data, Flanders has the highest segregated level of education within the EU, and probably beyond. Disabled children are usually referred to special schools. The reasons are varied, but one of them is that these special schools were established on a large scale in the 1970s – with good intentions at the time. The result though is that mainstream schools are very wary of the arrival of disabled children in their midst.

The Flemish NGO Equal Rights for Every Person with a Disability (GRIP) lobbied to obtain changes in the discriminatory legislation. In 2012, the Flemish Government proposed a new Act to resolve the problem. What was initially a good legislative proposal gradually shrank in size, and ended up as the M-Decree (‘Decree regarding measures for pupils with special educational needs’). MDAC was convinced there was a case to be made here. This was, in a way, the last available option to take things further.

The Discriminatory Legislation (the M-Decree)

The main point of contention, of course, was the discriminatory legislation. There were four issues of concern. First, the M-Decree allocates no resources for the purpose of inclusive education. Second, although it did eventually implement the duty to provide accommodation, this applies only to children ‘who are able to follow the common-core curriculum’, thereby excluding those with intellectual disabilities. Third, the appeals procedure is purely administrative and, as it appears, seldom used. Fourth, a number of disabled children with ‘very complex problems’ are exempted from education altogether. The Flemish Government failed to come up with a valid response stating instead that it intended to allocate the resources unused by special education (one can easily guess how much that could be …). No explanation was given, however, as to why children with intellectual disabilities are simply barred.

The European Committee of Social Rights considered that the M-Decree was indeed a smokescreen. It noted that this Decree ‘maintains two education systems: mainstream and special education’ (actually it even broadens the scope of the latter). The Flemish education system is moreover based on ‘integration’, where ‘pupils are required to fit in the mainstream system’, rather than ‘inclusion’. It does not offer disabled children the possibility of attending mainstream schools. The automatic rejection of intellectually disabled children also has no ‘objective and reasonable justification’. The Committee held that the lack of reasonable accommodation for them amounts to discrimination ‘on grounds of intellectual disability’. It concluded that ‘the right to inclusive education of children with intellectual disabilities is not effectively guaranteed’ in Flanders.

It may be that the Flemish Government did not want to fight a losing battle. The crux of the problem is again the strong legacy of segregation, which make such segregation acceptable practice. When the decision was made public, the Flemish Education Minister expressed that the M-Decree already posed difficulties for teachers and that a segregated education system would always remain. More money will not change that, the Minister said.

The Approach of the European Committee of Social Rights

The European Committee of Social Rights started by referring to its previous jurisprudence on the matter. In the cases of Autism Europe v France and European Action of the Disabled (AEH) v France, adopted in 2002 and 2013, respectively, it laid down a presumption in favour of inclusive education. It affirmed that the Charter does not offer ‘a wide margin of appreciation’ with regard to the education of disabled children. According to the Committee, ‘this must clearly be a mainstream school’.

Although the Committee built upon those cases, it has made a leap forward with the present one. In my view, its decision has translated a presumption into a right. This change in approach is not just because of the CRPD, which was merely cited in the AEH v France case (France had ratified the Convention in 2010). It is also to due to the CRPD Committee’s adoption of General Comment No. 4 on The Right to Inclusive Education. The General Comment was issued during the evaluation of the parties’ submission, so it arrived in the process.

The Influence of the Convention on the Rights of Persons with Disabilities

The European Committee of Social Rights borrowed several concepts from the CRPD, beyond the more established one of reasonable accommodation. It relied extensively on the General Comment in question, which was merely pointed out by the MDAC in its very last submission. Of particular significance is the term ‘right to inclusive education’. It is mentioned (in that wording) 10 times in the decision, and is part of the conclusion. This term has been devised by the CRPD Committee, although it is not to be found in the Convention itself. Also noticed were the CRPD Committee’s Concluding Observations on the Initial Report of Belgium, which  maintained that disabled children are compelled to attend special schools. As highlighted above, the Committee distinguished ‘integration’ from ‘inclusion’, and added that one does not necessarily lead to the other, which also comes from that General Comment. It indicated that a State Party should ‘make maximum use of available resources’ for the realisation of the right to inclusive education. It thereby used familiar international human rights law language. The CRPD Committee’s General Comment No. 4 on the Right to Inclusive Education definitively was on the members’ desk …

To go further, it is interesting to note some recent judgements of the European Court of Human Rights (only available in French for now). In the Çam v Turkey case, the Court ruled that the lack of reasonable accommodation for a blind student amounted to a violation of the European Convention of Human Rights. In the even more recent Enver Şahin v Turkey case, it went further by holding that the accommodation proposed to a paraplegic student disregarded his real needs and lacked respect for his autonomy. While this case has been referred to the Grand Chamber, it is also a turning point in what is an unexpected area. In both judgements, the Court leant on the CRPD’s definition of reasonable accommodation. The next step is the pending case of Stoian v Romania, which is about an intellectually disabled child, and the MDAC v Belgium case will probably reveal its (quasi-) judicial impact there. Concern has been expressed over the Court not being quite favourable to disabled people, but this may soon change. The CRPD has begun, slowly but surely, to establish itself within the Council of Europe.