The author of the communication is O.B., a national of Ukraine born in 1975. He claims to be the victim of violations by the State party of article 28 of the Convention. The Optional Protocol entered into force for the State party on 4 March 2010. The author is not represented by counsel.
On 25 September 2018, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party, under article 4 of the Optional Protocol, to take all measures necessary to avoid irreparable harm to the author by providing him with the social support he required to cover his basic needs while the Committee considered his case.
Facts as submitted by the author
The author states that on 6 November 2017, he acquired a “group II” disability. On 21 March 2018, the author applied for social assistance to the Department of Social Protection of the Population of the Rozdelnyansky District State Administration under law No. 1727-IV of 18 May 2004 on State social assistance to persons not entitled to a pension and to persons with disabilities, as he lacked money for food, clothing and transport.3 On 30 March 2018, the Department denied the author’s application for benefits, assessing that his average monthly family income for six months of approximately 2,005 hryvnias was in excess of 80 per cent of the subsistence threshold of 1,452 hryvnias for a persons with a group II disability who lived alone in the six months preceding their application for benefits, as established under the “procedure for the appointment and payment of State social assistance to persons who are not entitled to a pension and to persons with disabilities and of State social assistance for care” approved by resolution No. 261 of the Cabinet of Ministers of Ukraine of 2 April 2005. Before acquiring a disability under group II, the author had received income from his employment.
- The author notes that, according to article 4 of the law of Ukraine on state social assistance to persons not entitled to a pension and to persons with disabilities, the assignment and payment of such assistance to such persons is implemented in accordance with resolution No. 261 of the Cabinet of Ministers of Ukraine of 2 April 2005. ↩
In a letter dated 29 April 2018 addressed to the Prime Minister of Ukraine, the author claimed a violation of article 28 of the Convention. On 22 June 2018, he received a letter from the Ministry of Social Policy confirming that he was not entitled to social assistance as his income exceeded the subsistence threshold.
The author affirms that such breaches of the Convention result from domestic legislation and that they occur systematically in the State party.
The author notes his intention to apply to the Ukrainian courts within a month of filing his initial submission to the Committee. He expects to spend at least two years litigating before the administrative courts, in the case of a “quick trial”, but states that the courts normally take at least five to eight years to process cases. In addition, the author expects that judicial proceedings will be ineffective as the courts cannot change legislation and therefore cannot grant him social assistance in view of his previous income.
Complaint
The author argues that, by rejecting his request for social assistance, the State party has not taken any steps to protect his right to an adequate standard of living, including food, clothing and housing, and to the continuous improvement of his living conditions. The author notes that his former employers do not hire him or other persons with disabilities and, in the absence of social assistance, he has relied on friends and volunteers for his survival. He argues that the State party “systematically breaches” article 28 of the Convention and that it is creating conditions for the “elimination” of persons with disabilities.
The author refers to the Committee’s concluding observations concerning the initial report of the State party, in which the Committee expressed its concern that the disability pension was extremely low and insufficient to meet the basic needs of a person, including food, medical and social needs.4 The author notes that the Committee called upon the State party to review its budgetary allocations and increase the disability pension in order to provide persons with disabilities with an adequate standard of living, and also recommended that the State party ensure that resources for persons with disabilities were not adversely affected by inflation, budget cuts or any forms of crisis.5
The author invites the Committee to request that the State party review its legislation, including the procedure for the appointment and payment of State social assistance to persons who are not entitled to a pension and to persons with disabilities and of State social assistance for care, so that persons with disabilities, including those who recently acquired a disability, can receive assistance in the absence of employment or a monthly income of up to $100 or another amount that will allow them and their families a sufficient standard of living and the continuous improvement of their living conditions.
State party’s observations on admissibility and the merits
In its observations dated 6 December 2018, the State party notes that the author did not have insurance coverage for the period of time required in order to be eligible for a disability pension under article 32 of the law of Ukraine on compulsory State pension insurance. The law stipulates that persons with a group II disability have the right to a disability pension if they have the appropriate period of insurance coverage at the time of the onset of their disability or on the day of their application for a pension, which is nine years for persons between the ages of 40 to 42. According to the State party, persons with disabilities who lack the required period of insurance coverage can request State social assistance from the local social protection body of their place of residence. Such social assistance is paid in accordance with law No. 1727-IV of 18 May 2004 and the abovementioned procedure for the appointment and payment of State social assistance to persons who are not entitled to a pension and to persons with disabilities and of State social assistance for care. As the author lacked the required insurance coverage, the pension fund authorities refused to grant him a disability pension.
The State party observes that persons with a low income who are entitled to social assistance, persons not entitled to a pension and persons with disabilities entitled to State social assistance for care include individuals whose average income for the six months or two quarters of the year preceding the date of application for benefits does not exceed the subsistence minimum established for persons who have lost their ability to work, with the exception of persons with “group I” disabilities and children of a deceased breadwinner. That average income is calculated in accordance with paragraphs 3 to 9 of the methodology approved by Order No. 486/202/524/455/3370 of 15 November 2001 (with subsequent amendments), registered with the Ministry of Justice on 7 February 2002 under Order No. 112/6400 of the Ministry of Labour and Social Policy, the Ministry of Economy and European Integration, the Ministry of Finance, the State Committee of Statistics and the State Committee of Youth Policy, Sport and Tourism. The income for determining the right to social assistance for a person with a “group II” disability is calculated by dividing the average monthly total family income for the six months or two quarters preceding the month of the application for benefits by the number of family members included in the family’s composition, which should not exceed 80 per cent of the living wage for persons who have lost their ability to work. As the author’s income exceeded that amount, his application was refused.
The State party observes that on 18 September 2018, the author reapplied for State social assistance. As his total income for the previous six months did not exceed 80 per cent of the subsistence level, he was granted social assistance in the amount of 1,452 hryvnias per month.
Author’s comments on the State party’s observations
In his comments dated 16 March 2019, 14 November 2019 and 22 May 2023, the author claims that he lodged a complaint against the Cabinet of Ministers, the State Treasury Service and the Ministry of Social Policy addressed to the District Administrative Court of Kyiv, requesting the latter to declare paragraphs 25 and 26 of the procedure for the appointment and payment of State social assistance to persons who are not entitled to a pension and to persons with disabilities and of State social assistance for care invalid. On 23 January 2019, the District Administrative Court of Kyiv rejected his complaint. The author argues that the District Administrative Court did not consider the substance of his complaint and only concluded, without any argumentation, that the Convention and law No. 1727-IV determine the obligations of the State party to persons with disabilities in relation to their “level of wealth”, except for persons with a “group I” disability.
The author disagrees with the decision of the District Administrative Court on three grounds. First, the purpose of the Convention is to promote, protect and ensure the full and equal enjoyment by all persons with disabilities of all human rights and fundamental freedoms, as well as respect for their inherent dignity. Second, the decision says only that, according to the District Administrative Court, the Convention and the law of Ukraine No. 1727-IV consider the obligation of the State party to provide social support to persons with disabilities according to their “level of wealth”. Third, the District Administrative Court did not consider the author’s claim of a breach of the Convention, including in relation to paragraphs 25 and 26 of the procedure for the appointment and payment of State social assistance to persons who are not entitled to a pension and to persons with disabilities and of State social assistance for care.
On 14 February 2019, the author lodged an appeal against the decision of the District Administrative Court to the Sixth Administrative Court of Appeal. On 3 October 2019, the Sixth Administrative Court of Appeal dismissed his appeal and upheld the initial decision. The Sixth Administrative Court of Appeal refused to examine the author’s argument that the rejection of his application for social assistance and the letter from the Ministry of Social Policy of 22 June 2018 breached the Convention, finding that his argument “did not correspond to the content of [his] claims”. Thus, the Sixth Administrative Court of Appeal did not examine whether the State party had breached the Convention. On 10 November 2019, the author filed a cassation appeal with the Supreme Court. The author notes that his claims were denied in all three instances.
The author argues that the State party acknowledges that he had grounds for submitting the present communication to the Committee. According to the author, the requirement to have work experience in order to be eligible for social assistance is discriminatory and in breach of article 28 of the Convention. The author notes that the State party has not made a reservation under article 28 of the Convention excluding persons lacking work experience.
The author does not dispute the observation of the State party that its authorities acted in accordance with domestic law but argues that the law is in breach of his rights under the Convention. He argues that although he has now been receiving social assistance, the fact that he received it “much later” confirms the violation of the Convention by the State party. He argues that, in its observations, the State party does not comment on his claims in this regard.
B. Issues and proceedings before the Committee
Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee notes that the author presented his claim of a breach of article 28 of the Convention to the Administrative District Court, the Sixth Administrative Court of Appeal and the Court of Cassation, but that his claims were dismissed. Therefore, and in the absence of observations by the State party on that point, the Committee considers that the author has exhausted all available domestic remedies and that article 2 (d) of the Optional Protocol does not constitute an obstacle to the admissibility of the present communication.
The Committee notes the author’s claim that the rejection of his request for social assistance on 30 March 2018 by the Department of Social Protection of the Population of the Rozdelnyansky District State Administration constituted a failure by the State party to fulfil his right to an adequate standard of living, including adequate food, clothing and housing, and rendered him dependent on friends and volunteers for his survival, in breach of article 28 of the Convention. The Committee recalls that it is generally for the courts of States parties to the Convention to evaluate facts and evidence or the application of domestic law in a particular case, unless it is found that the proceedings before the domestic courts or the evaluation were clearly arbitrary or amounted to a denial of justice.6 In the present case, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the rejection of his request for social assistance, based on the fact that his income over the six months previous to his application for benefits was over the legally established threshold to receive social assistance, was clearly arbitrary or constituted a denial of justice. Furthermore, the Committee notes that the author’s subsequent application of 18 September 2018 was approved and that he has been receiving the assistance requested since that date, that is, four and a half months after his initial application was dismissed. The Committee observes that the author has failed to justify that the amount perceived is insufficient to fulfil his right to an adequate standard of living. The Committee therefore concludes that the author’s claim is inadmissible under article 2 (e) of the Optional Protocol.
- Sahlin v. Sweden (CRPD/C/23/D/45/2018), para. 8.6; Jungelin v. Sweden (CRPD/C/12/D/5/2011), para. 10.5; L.M.L. v. United Kingdom of Great Britain and Northern Ireland (CRPD/C/17/D/27/2015), para. 6.3; M.Y. v. Sweden (CRPD/C/24/D/49/2018), para. 6.6; F.O.F. v. Brazil (CRPD/C/23/D/40/2017), para. 8.7; R.I. v. Ecuador (CRPD/C/22/D/25/2014), para. 11.17; A.F. v. Italy (CRPD/C/13/D/9/2012), para. 8.4; and Bacher v. Austria (CRPD/C/19/D/26/2014), para. 9.7. ↩
Regarding the author’s contention that national legislation regulating the conditions to access State social assistance itself breaches article 28 of the Convention, the Committee considers that the author has not provided sufficient information to substantiate how it is incompatible with article 28 of the Convention for the courts to take his average income for the six months prior to his application for benefits into account in assessing his eligibility for social assistance. Neither has the author provided sufficient information to demonstrate how the subsistence threshold itself is contrary that provision. While the Committee notes the author’s claim that it is discriminatory to require work experience as a condition for eligibility for a disability pension, it considers that the author has failed to demonstrate how he was personally affected by that condition in justifying victim status under article 1 (1) of the Optional Protocol.
The Committee therefore considers the communication to be inadmissible under article 2 (e) of the Optional Protocol, as it is insufficiently substantiated.
C. Conclusion
The Committee therefore decides: (a) That the communication is inadmissible under articles 1 (1) and 2 (e) of the Optional Protocol;