Complaint by MDAC alleged a violation of the right to education of children living in homes for children with intellectual disabilities. This case includes a range of issues, including, provision of education based on availability, accessibility, acceptability and adaptability, and State obligation to progressively realize rights.
The Mental Disability Advocacy Center brought a complaint before the European Committee of Social Rights (which judges compliance of State parties with the European Social Charter) alleging that children living in homes for mentally disabled children (HMDCs) in Bulgaria received little to no education.
Citing the Bulgarian national child protection agency’s 2005 report, the Committee found an extremely low percentage of children with intellectual disabilities attending mainstream schools, that teachers lacked the training to competently instruct children with intellectual disabilities, and that the HMDCs did not qualify as schools. The Committee determined that Article 17§2 (the right of children and young persons to social, legal, and economic protection) had been violated because children with intellectual disabilities residing in HMDCs did not have an effective right to education. The Committee further ruled that there had been a violation of Article 17§2 read in conjunction with Article E (nondiscrimination) since children with mental disabilities were discriminated against as a result of the low number of such children receiving any type of education when compared to other children. This decision clearly considered the progress made by Bulgaria towards achieving the right to education insufficient and unjustifiable. The Committee noted that all education provided by states must fulfil the criteria of availability, accessibility, acceptability and adaptability as defined within General Comment 13 on the right to education by the Committee on Economic, Social and Cultural Rights. In this context, it was found that Bulgaria had failed to meet the criterion of accessibility and adaptability (to special needs).
The Committee also held that Bulgaria’s legislation and action plans related to children with intellectual disabilities were insufficient, particularly due to ineffective implementation.
For Bulgaria to meet its obligations under the Charter, the Committee stated that measures to ensure the right to education for children living in HMDCs must show measurable progress in a reasonable timeframe, utilizing maximum available resources.
Following MDAC, Bulgaria passed Regulation No 1/2009 for the Education of Children and Pupils with Special Education Needs and/or Chronic Diseases. This provided education in mainstream schools and trained resource teachers. However, MDAC has stated in a 2010 report that the only real educational option for institutionalized children with intellectual disabilities was schooling within the institution. Citing an imprecise enrollment system and outdated teaching programs, organizations have emphasized that these children remained deprived of the right to mainstream education in 2011.
In January 2012, Bulgaria ratified the Convention on the Rights of Persons with Disabilities, though not its Optional Protocol. In 2014, Bulgaria stated it was working toward a goal of greater social inclusion, including deinstitutionalization of children with disabilities and integrated education, and that it has created both a biennial plan to implement the Convention on the Rights of Persons with Disabilities, and a unified management system to ensure greater integration of persons with disabilities.
The decision recognized that legislation or policies alone are insufficient. The Committee reiterated the international obligations related to the fulfillment of economic, social and cultural rights, which require States to take measures within a reasonable timeframe, show measureable progress and ensure financing consistent with the maximum use of available resources. Importantly, the Committee also reaffirmed that financial constraints cannot be used to justify the fact that children with intellectual disabilities in HMDCs do not have access to education. Further, this case demonstrated that the right to education in the context of children with intellectual disabilities requires inclusion within the mainstream educational system.
(Updated July 2015)
Mental Disability Advocacy Centre (MDAC)
