4(C)(v). Erik is a child who goes to special schools but who faces adulthood with no services

Facts

Erik is fourteen years old and has intellectual disabilities and autism. He lives at home with his mother, attends a special school but receives no other community support services. His family are worried about what will happen when he turns eighteen. The person at the local government responsible for adult care has told Erik’s mother there are no services which can help Erik live at home and they recommend sending him to the “Capital social care institution for adults with mental disorders” which is in the suburbs of the capital city (50km away from their home), where he will be cared for. Erik’s mother does not want Erik to be placed in an institution. There is no state-funded legal service to help Erik’s mother.

Discussion

1. Community supports: If Erik is forced into an institution and consequently forced to give up his rights to home, education or work due to a lack of community support services, this violates his right to live in the community. Lawyers have time on their side because the local government has until Erik’s eighteenth birthday (four years) to put in place an alternative package of support. They should be considering now whether there are any supports he can already be seeking, e.g. a carer to come into the home to assist his mother in the short-term, additional skills training on personal care and independent living, the availability of further education classes and so on. Lawyers should gather information on the gaps and assess whether they can be litigated in advance.
    
2. Liberty: This is not immediately relevant until he is placed in the institution, a situation the lawyer should be fighting to prevent.
    
3. Privacy, family and home: This also will only be engaged when he is institutionalised. At a long-stretch there may be an argument that Erik’s right to form relationships with other children is violated by his segregated schooling.
    
4. Non-discrimination: This could be raised to argue that the failure to provide community supports constitutes a failure to provide reasonable accommodations, which amounts to disability-based discrimination.
    
5. Access to justice: If there is no appeal process for sending him to the institution there could be an issue in this case.
    
6. Fair trial: There is no access to legal aid to bring a claim, so Erik’s mother would have to rely on a pro bono lawyer, or pay a lawyer herself. These could be raised by the litigating lawyer as impediments in a strategic case, and the lawyer should consider an application in any court proceedings for a grant of legal aid to ensure access to justice for Erik and his mother.