4(B)(i). Community support services

According to Article 19 of the CRPD, States have the obligation to ensure that people with mental disabilities have access to specialised services in the community and also have equal access to mainstream community-based services. In order to achieve full inclusion and participation of people with mental disabilities in the community, a wide range of individualised support services must be provided by the State. It is widely accepted that these services must be available/adequate, accessible, acceptable, and adaptable.^[8]

• Availability requires functioning services in sufficient quantity which are adequate in amount and duration to ensure an adequate standard of living and adequate health care.
• Accessibility requires that services are accessible to everyone, especially the most vulnerable groups, in law and fact, and without discrimination. This involves considerations of coverage, eligibility, affordability and physical access, among other things.
• Acceptability requires that the form and substance of services are acceptable, e.g. relevant, culturally appropriate and of good quality.
• Adaptability requires services to be flexible so that they can adapt to the needs of changing societies and communities and respond to the needs of individuals within their diverse social and cultural settings.

Where the State or local government fails to provide community-based (housing and other support) services and the only realistic option for people with mental disabilities is to live in an institution, the State fundamentally violates the requirement of Article 19 on ensuring that they can live independently in the community.

A violation of Article 19 of the CRPD can also be claimed if the client was denied the opportunity to take an active part in establishing social services for themselves, treating them as a mere passive user of services. The claim for participation of people with mental disabilities in the development of services under Article 19 is supported by the overarching principle of participation under Article 3(c) of the CRPD, and the general obligation on the State to include people with disabilities in the development of policies to implement the provisions of the CRPD.

Progressive realisation

The development of community services is subject to “progressive realisation”. Article 4(2) of the CRPD sets out the duty. It states that:

With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of [Convention] rights…

This means that governments do not need to immediately provide full rights to housing, health, education and employment (classic economic and social rights) to everyone the day after the country ratifies the relevant international treaty. It does, however, require that governments organise and manage their budgets so as to achieve economic, social and cultural rights to the maximum extent possible within available resources over a reasonable period of time. Governments must roll out these rights on the basis of the principle of non-discrimination (Article 3(b), CRPD).

The rights to equality and choice under Article 19 of the CRPD are civil and political rights and are therefore “immediately applicable”. The obligation of the State to provide a range of services brings aspects of the right to live in the community within the realm of social and economic rights. This means that lawyers can argue that funding provided to segregating institutions should be diverted into community support services. Again, this need not happen immediately, but the government does need to have a plan in place with a reasonable timeline containing specific and measurable milestones.

Economic and social rights carry both “positive” and “negative” obligations for States. A negative obligation means that the government must refrain from interfering in the exercise of a right. A positive obligation means that a government must actively take steps to protect, respect and fulfil rights. Take, as an example, a government which refuses to reform its guardianship laws, and which make it impossible for a particular client to sign contracts for community support services. In this case a court may find that the government has violated the person’s economic and social rights because of the failure of the government in discharging its positive obligation to ensure access to community-based services.

Economic and social rights can be raised in courtrooms. In particular, governments must take clear, measurable steps to realise these rights, and the role for lawyers is to point out when they have chosen not to. Litigating the right to live in the community is particularly challenging when the shift from institutional care to community support services has significant budgetary implications. In these cases, lawyers are frequently required to use budgetary and other statistical data to advance their client’s position, and are well-advised to call on the assistance of economists. Whilst complex in nature, such cases can highlight systemic human rights violations linked to bad laws, policies, funding allocations and practices.

There is increasing international recognition of the justiciability of economic, social and cultural rights, and numerous court decisions in this respect. These types of rights are included in many constitutions and laws. Further, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) has recently entered into force, creating an individual complaints mechanism to the Committee on Economic, Social and Cultural Rights (CESCR Committee). Despite these developments, many courts remain reticent to grant relief in the event that economic or social rights are violated, particularly where a solution requires the government to spend money. National courts may say that an individual does not have an enforceable right to any particular service. They may say that the court has no jurisdiction to rule on the allocation of resources because that is a matter for government. These are risks that local lawyers will have to explore using some of the principles set out here and further research.^[9]

The UN treaty body which is expert in economic and social rights has said that, “neglect by the courts of their responsibility in this area [of economic and social rights] would drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.”^[10] Lawyers can use this argument in the courtroom if the government or the judge tries to justify a government’s inaction by saying that the right to live in the community is a social and economic right and therefore the issue lies outside the remit of the court.

It is established international law that minimum core obligations to ensure a basic level of enjoyment of each economic and social right must be met irrespective of the level of the country’s wealth.^[11] According to the same UN Committee, governments “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”^[12] If governments raise a lack of available resources, lawyers can use the Committee’s guidance and cross examine government agents about how exactly they are using the country’s resources.

Governments must make maximum use of available resources and work towards continually providing better and more complete fulfilment of all human rights. “Available resources” refers not just to resources existing within the State budget but also to those available from the international community, including the European Union, through international cooperation and assistance.^[13]