HM v Sweden, UN Doc CRPD/C/7/D/3/2011 (21 May 2012)
HM v Sweden is the first decision of the UN Committee on the Rights of Persons with Disabilities.
The Committee found that a State party may violate the Convention on the Rights of Persons with Disabilities if it fails to consider an individual’s particular health circumstances in applying its national laws, resulting in discrimination on the grounds of that individual’s disability.
The author, HM, had a chronic connective tissue disorder, Ehlers-Danlos Syndrome (EDS) which led to hypermobility of joints, severe luxations and sub-luxations of joints, fragile and easily damaged blood vessels, weak muscles and severe chronic neuralgia. HM had not worked or stood for eight years and had difficulty sitting and lying down. She could no longer leave her house or go to hospital, so her only remaining option for rehabilitation to stop her impairment from progressing was hydrotherapy through an indoor pool in her house.
HM applied for planning permission to extend her house by approximately 63 square metres on her privately owned land. Most of this extension was on land where building was not permitted under the Planning and Building Act. The Örebro Local Housing Committee rejected her request for building permission. The matter was appealed several times, and HM petitioned the Supreme Administrative Court of Stockholm for leave to appeal a decision of the Administrative Court of Appeal. The petition was refused and the author complained to the Committee on the Rights of Persons with Disabilities.
HM claimed that the Sweden violated the Convention by failing to take into account HM’s rights to equal opportunity for rehabilitation and improved health. This, she argued, resulted in discrimination against her.
Sweden‘s observations on admissibility and merits
Sweden’s main submissions on admissibility included that the departure from the development plan was more than merely minor and so the decision-making authorities could not simply disregard existing legislation.
On the merits, Sweden submitted amongst other things that the Act applies in the same way to all, whether they have disabilities or not (ie there was no direct discrimination), and none of its clauses indirectly lead to discrimination against persons with disabilities. Furthermore, Sweden submitted that HM did not need to make an application under the Act and to rely on articles 25 and 26 because she should have sought health and medical services from the Council instead.
HM’s comments on Sweden’s observations
HM submitted that the refusal to issue building permission amounted to discrimination because all other avenues that could have ensured her rehabilitation were exhausted. Furthermore, her case was a matter of life-enhancing circumstances and she had a rightful claim to equality with regard to quality of life. HM referred to the applicability of the proportionality principle in cases where the purpose of the plan and the interests of the individual would strongly outweigh society’s interests.
She submitted that the effect of the Act meant that, as a disabled person, she could not obtain proper health care, and was therefore exposed to discrimination. Sweden’s national health laws were of little concern when her needs could not be met through the interpretation and application of those laws.
The Committee considered that allegations of violation of articles 3, 4, 5, 19, 25, 26 and 28 of the Convention were sufficiently substantiated and therefore the complaint was admissible. The Committee found that Sweden failed to apply the principle of proportionality, and did not weigh HM’s interests in having the pool against the public interest in complying with the development plan.
The Committee considered the definition of “discrimination on the basis of disability” under article 2(3). It noted that the definition extended to “denial of reasonable accommodation”. The Committee found that the pool was essential to HM’s health condition and an appropriate adjustment would be a departure from the development plan. Sweden had not indicated that this departure would impose a “disproportionate or undue burden”.
The Committee observed that a law which is applied in a neutral manner may have a discriminatory effect when an individual’s particular circumstances are not considered. It stated that “the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention can be violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different”.
Articles 25 (health) and 26 (habilitation and rehabilitation)
The Committee considered HM’s right under article 25 “to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability”. The Committee then considered a State party’s obligations under articles 25 and 26, to take appropriate measures regarding the health, habilitation and rehabilitation of people with disabilities.
The Committee decided that a refusal to depart from the development plan was disproportionate and produced a discriminatory effect. This discriminatory effect adversely impacted HM’s access to the health care and rehabilitation that she required. Accordingly, HM’s rights under articles 5(1) and 5(3) (equality and non-discrimination) and article 25 (health), and Sweden’s obligations under article 26 of the Convention, read alone and in conjunction with articles 3 (b), (d) and (e) and 4 (1) (d) of the Convention, had been violated.
Article 19(b) (living independently and being included in the community)
Article 19(b) states that States parties must “take effective and appropriate measures” to facilitate full enjoyment by persons with disabilities of their right to live and participate in their communities, and to do this they must provide support services. The Committee found that this article was violated because the rejection of HM’s application for a building permit deprived her of the “only option that could support her living [in] and inclusion in the community”.
The Committee recommended to Sweden that it remedy the violation of HM’s rights by reconsidering her application for a building permit. Furthermore, Sweden was under an obligation to take steps to prevent similar violations in the future.
Relevance to the Victorian Charter
The Victorian Charter of Human Rights does not contain explicit human rights governing health care entitlements (such as articles 25 and 26 in the Convention). However, section 8 of the Charter and its sub-sections provide a broad suite of equality rights which may assist those facing difficulties like those faced by HM.
In HM v Sweden, the Committee recognised that a law which is applied in a neutral manner may have a discriminatory effect when the person’s particular circumstances are not taken into consideration. The decision shows the importance of ensuring that Victorian laws are applied to people with disabilities in a process that considers their individual situation, and their right to equality before the law.
The decision is available online at: www.ohchr.org/Documents/HRBodies/CRPD/CRPD.C.7.D.3.2011.doc
Natasha Koravos is at DLA Piper.