Strengthening the rights of people with disabilities (Draft Law 260)

Disabled workers • Employment obligation • Entrepreneur • Parenthood • Family carer • Resources • Financial aid

Draft law 260 amending Law No. 1.410 of 2 December 2014 on the protection, autonomy, and promotion of the rights and freedoms of persons with disabilities (of parliamentary origin) was received by the Conseil National on 21 December 2023.

It is fully in line with the "Handipact" National Policy on Disability Inclusion launched on 5 December 2023 (Government press release, "Presentation of the national policy on disability inclusion": nine areas of action, "I'm Ready" initiative and modernised visual identity, concrete actions already launched, "Handipact Monaco" Linkedin page).

On 25 March 2024, the Office of the Haut Commissariat à la Protection des Droits, des Libertés et à la Médiation (High Commissioner for the Protection of Rights, Freedoms and Mediation) issued its Opinion on Draft law 260. On this occasion, it reiterated "its wish for the adoption of a general anti-discrimination law, necessary to guarantee the principle of inclusiveness while preserving legitimate and justified discrimination" and "the importance of guaranteeing a legislative framework on discrimination in its more global sense" (Opinion, pp. 2 and 3). Referring to the recommendations made to Monaco by the Council of Europe's European Commission against Racism and Intolerance (ECRI), the High Commissioner is of the opinion that "consideration should be given to enacting anti-discrimination legislation that is compatible with existing priority systems, as provided for and guaranteed by the Constitution, without calling them into question".

It should be noted that a draft law ("proposition de loi") adopted by the Parliament is then forwarded to the Government, which has the choice of either transforming it into a bill ("projet de loi") or interrupting the legislative procedure.

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Presentation

Law no. 1.410 is the framework law covering the situation of people with disabilities in its entirety: definition and status (Title I), access to care (Title II), reception and schooling (Title III), family life (Title IV), professional life (Title V), guaranteed resources (Title VI), accessibility (Title VII), criminal provisions reinforcing the protection of people with disabilities (Title VIII).

Law no. 1.410 was drawn up with regard to the provisions of the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities (CRPD), which was signed on 23 September 2009 and has been in force for Monaco since 18 October 2017 (Sovereign Order no. 6.630 of 2 November 2017), the first binding international instrument in this field.

The Principality is also committed to the Council of Europe. Based on the report by Béatrice FRESKO-ROLFO, on 11 October 2023 the Parliamentary Assembly of the Council of Europe unanimously adopted Resolution 2514 (2023) calling on States to take measures to prevent and combat a subject that remains taboo: violence (physical, sexual, psychological or economic) against women with disabilities.

The concept of disability encompasses a multitude of realities: "A disability is any limitation of activity or restriction on participation in life in society experienced in his or her environment by a person as a result either of a substantial, lasting or permanent impairment of one or more of his or her physical, sensory, mental, cognitive or psychological functions, or of a disabling health disorder" (art. 1 L.1.410).

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Objectives of draft law 260

The Parliament intends to "strengthen the fundamental and general rights established by Law no. 1.410 by enshrining practical measures to provide a stronger legal framework tailored to the day-to-day lives of people with disabilities. (...) Rather than considering the ability of disabled people to integrate into our society, (...) fairness would be guaranteed by enshrining the principles of adaptation and compensation for disability. The aim of this text is therefore to encourage access to salaried employment, in both the private and public sectors, and to promote self-employed activities for people with disabilities, while ensuring that the financial support essential to their inclusion is maintained on a proportional basis". (Explanatory memorandum to draft law 260, p. 4-5)

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Content of draft law 260

¤ Recognition of the "right to full inclusion in society, including the right to reasonable accommodation" (art. 1 of L. 1.410).

¤ Clarification and improvement of the procedural regime for granting disabled person status (art. 6 and 7 of L. 1.410):

• Applicants who so request may be heard as of right by the Disability Assessment Commission, of which they must be informed "by express mention on the acknowledgement receipt for their application";
• Reinforcement of the obligation to give reasons for the decision to grant disabled person status taken by the Director of Health and Social Action on the advice of the Disability Assessment Commission;
• Obligation to communicate the opinion of the Disability Assessment Commission to the applicant on request.

The High Commissioner noted (Opinion, p. 2):

• regarding the chairmanship of the Commission for the Orientation of Disabled Workers (which would include employers, employees, associations of disabled people and a medical board), that "the chairmanship of this commission, which is responsible in particular for granting disabled worker status, by a medical inspector from the DASS appointed by its Director would not give the necessary appearance of impartiality and that another solution could be sought in order to guarantee greater objectivity" ;
• with regard to the disabled person's right to be heard, "it should be specified that the disabled person may be assisted by counsel of his or her choice";
• with regard to the principle of informing the applicant of the Assessment Commission's opinion, "that the persons concerned should also be informed that they are able to appeal to the administrative decision, whether in the form of an ex gratia or contentious procedure, as well as of the possibility of referring the matter to the High Commission".
• in view of the wide-ranging and multi-faceted powers of the Assessment Commission, "it would be necessary to ensure that its operation remains effective and transparent for the public by providing, where appropriate, in the implementing regulations for the establishment of separate panels responsible for each of its different tasks".
  

¤ Strengthening of the status of family carer, establishment of guaranteed resources (new art. 25-1 to 25-3 of L. 1.410):

• Payment of a daily family carer's allowance to persons entitled to family support leave, and to persons who have requested that their working hours be adjusted and who suffer a loss of pay as a result (in accordance with the procedures laid down by the Law and Sovereign Order);
• Family carers looking after a child may receive a supplementary special education allowance;
• The disabled person may use the disabled adults' allowance to directly pay one or more employees, in particular a family member, or an approved home help service.

¤ Expansion of the scope of action of the Commission for the Orientation of Disabled Workers (art. 26 and 27 of L. 1.410):

• Reasoned opinion of the Commission in the context of granting disabled worker status ;
• Fund to assist disabled workers, which may allocate financial assistance to the worker or the employer;
• Administration of the Commission by a multi-disciplinary team (employers, employees, disabled persons' associations, medical staff) responsible for promoting and supporting disabled workers in all aspects of their working lives;
• Increased information and awareness-raising among all those involved in the world of work about the
  the integration of disabled workers.

¤ Concrete (non-exhaustive) list of "appropriate measures" that may be taken by the employer to enable the disabled worker to access employment (art. 35 of L. 1.410):

• Adaptation of working arrangements (hours, duration, distance working);
• Technical, material or human assistance.

¤ Establishment of the obligation to employ disabled people in the private and public sectors (new art. 41-1 to 41-4 of L. 1.410):

• Beneficiaries of the employment obligation: 1°) workers recognised as disabled by the Commission d'Orientation des Travailleurs Handicapés (Commission for the Orientation of Disabled Workers); 2°) victims of accidents at work or occupational illnesses resulting in a permanent disability of at least 10% and receiving a pension; 3°) recipients of the allocation aux Adultes Handicapés (Allowance for Disabled Adults); 4°) recipients of an invalidity pension; 5°) recipients of a card bearing the words "personne handicapée" (disabled person) or "stationnement" (parking permit) or "priorité" (priority permit).
• Employers covered by the employment obligation: 1°) any employer with at least 20 employees; 2°) State, Commune, Public Establishments.
• Terms and conditions: beneficiaries must be employed in a proportion of 6% of the total number of employees; they may also be taken on as trainees or for periods of work experience in a professional environment, and employed by temporary employment agencies.
• In the event of non-compliance with the employment obligation: payment by the employer of an annual contribution for each of the beneficiaries of the obligation that it should have employed, to the fund to assist disabled workers.
• All employers would be affected by the campaign to promote the employment of disabled workers, with the obligation to declare to the Labour Department the total number of beneficiaries of the employment obligation that they employ, on 1 January each year.

¤ Establishment of a genuine status for self-employed workers with disabilities (new art. 41-5 to 41-8 of L. 1.410):

• Introduction of financial assistance to help disabled people start up or take over a business;
• Possibility of applying for financial assistance to cover the cost of adapting the workstation to the disability;
• Possibility of applying for financial aid in recognition of the seriousness of the disability, the aim of which is to compensate for the significant costs borne by the company as a result of the consequences of the worker's disability once the best possible adaptation of the work situation has been put in place;
• Self-employed workers who have been granted disabled worker status may combine their remuneration with the entitlements they receive as a result of their disability ("invalidité").

¤ Introduction of a system of compensatory benefits covering all disabilities (new art. 41-9 to 41-11 of L. 1.410):

• Recognition of a general and autonomous right to compensation for the consequences of one's disability, regardless of the origin and nature of one's impairment, age or lifestyle;
• Compensation consists of meeting the person's needs: childcare, schooling, teaching, education, professional integration, adjustments to the home or working environment, services enabling family and friends to benefit from respite care, self-help groups, places in specialised establishments, assistance of any kind to the person or institutions to live in an ordinary or adapted environment, access to procedures and institutions specific to disability or to the resources and services accompanying the implementation of legal protection for vulnerable adults and minors;
• Compensation needs would be set out in the disability compensation assistance plan drawn up by the Disability Assessment Commission in consideration of the needs and aspirations of the disabled person as expressed in his or her life project (updated whenever necessary and at least once a year);
• The aid plan allocates financial aid for expenses: related to the need for human assistance, including, where applicable, that provided by family carers; related to the need for technical aids, in particular the costs borne by the insured person; related to the adaptation of the home and vehicle, as well as any additional costs resulting from transport; specific or exceptional, such as expenses relating to the organisation or maintenance of disability-related products; related to the allocation and maintenance of animal aids.
• Appropriate measures for the benefit of disabled persons designed to promote equal treatment do not constitute discrimination.

The High Commissioner recommends "that the broadening of disability criteria be effectively taken into account in the regulations and not only at the time of granting aid" and "with regard to reception procedures in administrative services or the allocation of state housing". (Opinion p. 4).

¤ Extension of the scope of the special education allowance to all dependent children, whether minors or adults (art. 42 of L. 1.410)

¤ Establishment of the parenthood allowance (new art. 45-2 to 45-5 of L. 1.410)

• Financial assistance for a parent who has been granted disabled person status, linked to a need for technical or human assistance in the exercise of parenthood;
• Human assistance needs taken into account: a person prevented, totally or partially, by their disability, from carrying out acts relating to parenthood, when their child or children are unable, given their age, to take care of themselves and ensure their safety;
• Technical assistance: assistance with the purchase or hire of adapted equipment or systems to help with parenting.

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Related texts:

• Ordonnance Souveraine n° 5.193 du 30 janvier 2015 relative à la Commission d'évaluation du handicap (on the Disability Assessment Commission);
• Ordonnance Souveraine n° 5.641 du 14 décembre 2015 portant création d'une Direction de l'Action et de l'Aide Sociales (creating a Department of Social Action and Assistance);
• Arrêté Ministériel n° 2015-380 du 8 juin 2015 relatif à l'aide sociale en faveur des personnes handicapées (relating to social assistance for the disabled), as recently amended by arrêté ministériel n° 2023-77 du 7 février 2023;
• Ordonnance Souveraine n° 5.353 du 8 juin 2015 relative à la formation des aidants familiaux (relating to the training of family carers);
  
• Arrêté Ministériel n° 2015-383 du 8 juin 2015 relatif à l'attribution du statut d'aidant familial (on the granting of family carer status);
• Loi n° 1.441 du 5 décembre 2016 relative à l'accessibilité du cadre bâti (relating to the accessibility of the built environment) and implementing regulations (access to public places);
• Loi n° 1.334 du 12 juillet 2007 sur l'éducation (compulsory education for children and teenagers with a disability or disabling health condition, and the principle of integration into a mainstream school environment).

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