- 021-01-597/2024-02 date: 7 October 2024.
MINISTRY OF LABOR, EMPLOYMENT, VETERAN AND SOCIAL AFFAIRS
Nemanja Starović, Minister
11000 BELGRADE
Nemanjina 22-26
Subject: Recommendation of measures to achieve equality and protection against discrimination in exercising the right to the service of a personal companion or personal assistant if the person who needs the service resides in one local self-government unit and attends school, faculty, or works in another local self-government unit where the service should be provided
Dear Mr. Starović,
The Commissioner for the Protection of Equality has been contacted by the association “Center for Living Upright” on behalf of a young woman with disability, a first-year student at the Faculty of Technical Sciences in Novi Sad, who resides in Belgrade, regarding access to the personal companion service. In their letter, it is stated that she submitted a request to the Belgrade Center for Social Work to exercise her right to personal assistance services. Based on the communication between the Center and the competent city secretariat, it was indicated that the response was that the student is not entitled to funding for personal assistance services from the budget of the City of Belgrade because she will be residing in Novi Sad during her studies. According to the city’s regulations, the right to funding for the service is granted only to individuals who live, work, and study in Belgrade. Additionally, it was specified that if she changes her place of residence to an address in Novi Sad, according to the Rulebook on the Detailed Conditions and Criteria for Acquiring the Right to Funding of the Personal Assistance Service, she can only exercise the right to personal assistance if she is registered as a resident of Novi Sad for at least one year.
After receiving the letter of the Association, the Commissioner sent requests for statements to the City of Novi Sad, the City Administration for Social and Child Protection, as well as the City of Belgrade – Secretariat for Social Protection to properly determine the factual situation and the way to overcome the problem, bearing in mind the regulations adopted by the Republic of Serbia, as well as international conventions ratified by our country.
Acting upon the correspondences mentioned above, the competent secretariats have provided their responses. The City of Novi Sad, City Administration for Social and Child Protection, referred to the provisions of the Law on Social Protection, the Rulebook on Detailed Conditions and Standards for Providing Social Protection Services, and the Rulebook on Detailed Conditions in the Procedure for Exercising the Right to Reimbursement of Costs for Personal Assistance Services. This regulation stipulates that the right to reimbursement for personal assistance services funded by the budget of the City of Novi Sad can be granted to a person with disability assessed at the first or second level of support, who is entitled to an increased allowance for assistance and care from another person, can make independent decisions, is employed or actively involved in the work of various citizen associations, sports societies, political parties, or other forms of social engagement, or is included in a regular or individual educational program. The individual must also be in need of appropriate practical assistance and support to achieve the highest possible level of independence, provided they have been registered as a resident of the City of Novi Sad for the past year. It was also stated that the Rulebook prescribes that the Center for Social Work of the City of Novi Sad decides on applications for the right to reimbursement of costs for personal assistance services. Additionally, the user may select and conclude a contract with only one licensed provider of personal assistance services following the Rulebook on Licensing Social Protection Organizations. It was also specified that considering the needs of users of personal assistance and at the service provider’s proposal, amendments to the Rulebook established that the prescribed number of hours can be increased due to significantly changed or worsened family and other circumstances. Following an assessment, this support can be increased to the level of all-day daily support. Furthermore, it was stated in the letter that the Decision on determining the number of users of the personal assistance service for which reimbursement of expenses is provided and the number of users who can exercise the right to reimbursement of expenses for the increased number of hours of personal assistance for the year 2023, determined that in the year 2023 the compensation of expenses will be provided for a maximum of 50 users and that the right to reimbursement for the increased number of hours of personal assistance in 2023 can be realized by a maximum of seven users. It was clarified that numerous social protection services are financed from the budget of the City of Novi Sad, such as daily services in the community, support services for independent living such as social housing in protected conditions, temporary housing for children, etc. It was also stated that the personal assistance service in the City of Novi Sad is provided by the School for Primary and Secondary Education “Milan Petrović” with a student dormitory, Novi Sad, and the Center Living Upright, as licensed service providers. As stated, the period set for service users’ length of residence in the territory of the city of Novi Sad was established to avoid abuses related to residence registration. It was stated that support for persons with disabilities is one of the priorities of social protection in the territory of the city of Novi Sad and that in the future the City Administration will consider all proposals for improving the position of persons with disabilities and act in the best interest of the users in accordance with the possibilities of the budget and in compliance with valid laws and by-laws.
In the statement of the City Administration of the City of Belgrade – the Secretariat for Social Protection, it is stated that the personal assistance service in the city of Belgrade is systematically organized and defined by the Law on Social Protection, the Rulebook on Conditions and Standards for the Provision of Social Protection Services, as well as the Decision on Social Protection Rights and Services. It was clarified that the Decision on Social Protection Rights and Services of the city of Belgrade stipulates that social protection services can be provided to citizens of the Republic of Serbia who reside in the territory of the city of Belgrade and persons displaced from Kosovo and Metohija who reside in the territory of the city of Belgrade. The services prescribed by the Decision in question are procured in the public procurement procedure for the territory of the city of Belgrade from a licensed service provider who provides them in the territory of the city of Belgrade and who, following positive regulations, controls the work of direct service providers. It was clarified that the said Decision does not foresee that the personal assistance service that the city of Belgrade prescribed by its Decision and provides in its territory will be provided in the territory of another local self-government. It has been clarified that the Decision mentioned above does not provide for personal assistance services, prescribed by the City of Belgrade’s Decision and provided within its territory, to be offered in the territory of another local self-government. As stated, each local self-government defines the rights and services it provides within its jurisdiction. Services are delivered through social protection institutions established by that local self-government. If there are no licensed social protection institutions, services are procured through a public procurement process from licensed service providers for the local self-government where the service will be delivered. It was stated that a personal assistant can only be engaged by the service provider selected through a public procurement process conducted by the Secretariat for Social Protection for the territory of the City of Belgrade. For Belgrade, it is the Center for Independent Living of Persons with Disabilities, with which the City of Belgrade has signed a public procurement contract, granting the Center the status of an authorized provider of social protection services. It was further clarified that the Center for Social Work decides on the submitted application at the first instance, based on the applicant’s place of residence. After conducting the procedure, a decision is issued, and the service is implemented within the territory of the City of Belgrade. It has been clarified that, concerning this specific case, such situations should be resolved systematically. Amendments to regulations cannot be left to individual local self-governments to address independently. Addressing these issues requires a comprehensive approach, taking into account the needs that arise not only in the education area but also in the area of employment and potential work in another city. Regulations adopted locally do not necessarily align with those from other sectors. Therefore, it is necessary to systematize such cases and provide guidelines to other local self-governments on how to regulate the provision of services. It was noted that all local self-government units require proof of residence within their territory as a condition for exercising rights and accessing services. Furthermore, some local self-governments require that the residence on their territory be registered for a specific duration as an additional condition for accessing these rights and services. It was also stated that in each particular case, the Secretariat is cooperating with certain donors or civil organizations to find a solution until this problem is solved systemically. It was pointed out that it is indisputable that the city of Belgrade, through the departmental Secretariat for Social Protection, within the framework of positive regulations, provides all the necessary conditions for persons who have a residence in the territory of the city of Belgrade and live there to obtain social protection services. It was also stated that this Secretariat is ready to support the initiative of the Commissioner for the Protection of Equality in terms of amending the law to solve such situations.
In the meantime, the Commissioner for the Protection of Equality was notified that for the current academic year, the aforementioned problem was overcome by the fact that the beneficiary was invited by the competent secretariat of the city of Belgrade and informed that in this particular case, the personal assistance service will be financed by a donor. Although in this particular case, a solution to the specific problem was currently found, there remains the possibility that the same or a similar issue may reappear in practice.
A similar problem was pointed out in another case, which referred to the exercise of the right to the service of a personal companion of a child who resides in the territory of the city of Belgrade and attends school in Novi Sad.
The Constitution of the Republic of Serbia[1], in Article 21, prohibits any form of discrimination, whether direct or indirect, on any grounds, particularly based on race, gender, national origin, social background, birth, religion, political or other beliefs, property status, culture, language, age, or mental or physical disability.
The Commissioner emphasizes that the Convention on the Rights of Persons with Disabilities[2] stipulates that States Parties recognize the right of persons with disabilities to education. To realize this right without discrimination and on an equal basis, States Parties shall ensure an inclusive education system at all levels and lifelong learning with the aim of: (a) full development of human potential and a sense of dignity and self-worth, as well as strengthening respect for human rights, fundamental freedoms, and diversity among people; (b) the development of personality, talents, and creativity, as well as the mental and physical abilities of persons with disabilities to their fullest potential; (c) enabling persons with disabilities to participate effectively in a free society. Paragraph 2 of this article prescribes that in realizing this right, States Parties shall ensure that: (a) persons with disabilities are not excluded from the general education system based on disability, and children with disabilities are not excluded from free and compulsory primary or secondary education on this basis; (b) persons with disabilities have access to inclusive, quality, and free primary and secondary education on an equal basis with others in the communities where they live; (c) reasonable accommodation is provided according to the individual’s needs; (d) persons with disabilities receive the necessary support within the general education system to facilitate their effective education; (e) effective measures are provided for individualized support in environments that maximize academic and social development, consistent with the goal of full inclusion. Paragraph 3 of the same article stipulates that States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full participation in education and equal belonging to the community. Furthermore, paragraph 5 of the same article stipulates that States Parties shall ensure that persons with disabilities have access to general tertiary education, vocational training, adult education, and lifelong learning without discrimination and on an equal basis with others. To this end, they shall ensure that persons with disabilities are provided with reasonable accommodation.
The constitutional prohibition of discrimination is elaborated in more detail in the Law on the Prohibition of Discrimination, which, by the provisions of Article 2. stipulates that the act of discrimination means any unjustified distinction or unequal treatment, i.e., omission (exclusion, limitation, or giving priority), concerning persons or groups as well as members of their families, or persons close to them, in an open or covert manner, which is based on race, color, ancestry, citizenship, national origin or ethnic origin, language, religious or political beliefs, sex, gender, gender identity, sexual orientation, sexual characteristics, income level, property status, birth, genetic characteristics, health status, disability, marital and family status, criminal record, age, appearance, membership in political, trade union and other organizations and other actual or presumed personal properties[3]. The principle of equality, which is elaborated in Article 4 of this law, stipulates that everyone is equal and enjoys equal status and equal legal protection, regardless of personal characteristics, and that everyone is obliged to respect the principle of equality, that is, the prohibition of discrimination. Direct discrimination exists if a person or a group of persons, due to their personal characteristics, in the same or similar situation, by any act, action, or omission, is or has been put in a disadvantageous position, or could be put in a disadvantageous position (Article 6). Furthermore, the provisions of Article 22 of this law prescribe that every child, that is, minor, has equal rights and protection in the family, society, and the state, regardless of personal characteristics or those of parents, guardians, and family members.
By provision of Article 13, paragraph 1 of the Law on Local Self-Government[4] it is prescribed that local self-government units cooperate and join together to realize common goals, development plans, and programs, as well as other needs of common interest and that for their realization they can pool funds and form joint bodies, companies, institutions, and other organizations and services, following the law and the statute, while the provisions of Article 20, paragraph 1, item 4 stipulate that the municipality, through its bodies, following the Constitution and the law, takes care of meeting the needs of citizens in the field of education (pre-school education and primary and secondary education and upbringing), scientific research and innovation activities, culture, health and social protection, child protection, sports and physical culture. The aforementioned article also stipulates that the municipality, through its bodies, ensures the fulfillment of the special needs of persons with disabilities and the protection of the rights of vulnerable groups. Article 24 of this Law stipulates that the city exercises the municipality’s responsibilities and other responsibilities and tasks of the state administration, which are entrusted to it by law. The provisions of Article 8 of the Law on the Capital City[5] prescribe that the City of Belgrade exercises the competencies of the municipality and the city, as established by the Constitution and the Law on Local Self-Government.
The Law on Social Protection[6] stipulates social protection services, specifically mentioning community-based day services (daycare, home assistance, shelters, and other services that support users’ stay within their families and immediate environment), as well as support services for independent living (supported housing, personal assistance, training for independent living, and other forms of support necessary for the active participation of users in society). Following Article 5 of this Law, social protection services consist of activities that provide support and assistance to individuals and families to improve or maintain their quality of life, mitigate or eliminate risks of adverse life circumstances, and create opportunities for them to live independently in society. Article 14 of the Law on Social Protection stipulates that rights established by this Law are exercised and social protection services are provided through social welfare centers. A social welfare center is established by a local self-government unit. A social welfare center can be established for the territory of one or more local self-government units.
Article 44 of the Law on Social Protection stipulates that community-based day services include activities that support the user’s stay within the family and immediate environment and that these services are provided by the local self-government unit. Article 45 of the same Law specifies that independent living support services are provided to individuals to equalize their ability to meet basic needs with those of other members of society, improve their quality of life, and enable them to lead an active and independent life in the community. Independent living support services are provided by the local self-government unit unless otherwise stipulated by this Law to be provided by the Republic of Serbia.
Article 99 of the Rulebook on Detailed Conditions and Standards for the Provision of Social Protection Services stipulates that personal assistance services are available to adults with disabilities who have been assessed as requiring Level I or II support, who are entitled to an increased allowance for assistance and care, are capable of making independent decisions, are employed or actively involved in the work of various citizen associations, sports clubs, political parties, and other forms of social engagement, or are included in a regular or individualized educational program. Furthermore, Article 100 of this Rulebook stipulates that the purpose of personal assistance services is to provide appropriate individual practical support necessary for the user to meet personal needs and participate in educational, work, and social activities within the community to achieve the highest possible level of independence.
The provision of Article 83 of the same Rulebook stipulates that the service of a personal companion is available to a child with a disability or developmental difficulties who requires support in meeting basic needs in daily life, such as mobility, maintaining personal hygiene, feeding, dressing, and communication with others, provided the child is enrolled in an educational institution or school until the completion of regular schooling, including the completion of secondary school. At the same time, the provision of Article 84 of this Rulebook defines the purpose of engaging a personal companion as providing the child with appropriate individual practical support to facilitate inclusion in regular schooling and community activities, to achieve the highest possible level of independence.
Social protection services provided by the Republic of Serbia, an autonomous province, i.e. a local self-government unit, for which there is a need and which cannot be provided in the necessary extent by the social protection institutions established by the Republic of Serbia, an autonomous province, i.e. a local self-government unit, are procured from the provider social protection service which is licensed for this through the procedure of public procurement of social protection services, following the law governing public procurement, this Law and the regulations adopted for their implementation. The provisions of Article 65 of this Law stipulate that the service is commissioned by the ministry responsible for social protection, that is, the authority of the autonomous province and local self-government unit responsible for social protection. The procedure for using the service from this Law provided by the Republic of Serbia, an autonomous province, or a local self-government unit is carried out by the center for social work, ex officio or at the request of the user.
Analyzing the cited legal provisions, it is indisputable that local self-government units have an obligation to provide daily services in the community. Also, each local self-government unit has adopted special regulations that elaborate the conditions and criteria based on which provision of social protection services is possible. It follows from the statement of the City of Belgrade and the City of Novi Sad that one of the criteria for the realization of the personal assistance service is the residence of the user of the service, and/or that the residence lasts for a certain period of time (most often one year). This criterion is justified by the fact that the service is financed precisely from the budget of the local self-government unit, which is why it is necessary for the person to have a residence in its territory.
However, in addition to the aforementioned regulations, the Commissioner reminds of the provisions of the Law on Social Protection, which prescribe that social protection, in the sense of this Law, is an organized social activity of public interest whose goal is to provide assistance and empowerment for an independent and productive life in the society of individuals and families, as well as to prevent the formation and elimination of the consequences of social exclusion (Article 2), that the goals of social protection are, among other things, ensuring the availability of services and creating equal opportunities for independent living and encouraging social inclusion (Article 3), as well as that institutions and other forms of organization determined by law that perform activities, that is, provide social protection services are obliged to cooperate with pre-school, primary, secondary and higher education institutions, health institutions, the police, judicial and other state bodies, bodies of territorial autonomy, i.e. bodies of local self-government units, associations and other legal and natural persons (Article 7, paragraph 1), and that cooperation in the provision of social protection services is realized primarily within the framework and in the manner determined by cooperation agreements. In addition, Article 13 of the Law on Local Self-Government stipulates that local self-government units cooperate and unite to achieve a common goal.
By providing personal assistance and companion services to persons according to their free choice of the place of education and the higher education, that is, education institution they will attend, the goal of providing everyone with the right to education and participation in educational processes on an equal basis is achieved.
Bearing in mind all of the above, i.e. the fact that these are persons with disabilities who, following the regulations, have the right to social protection services that must be provided to them continuously, the Commissioner, in order to prevent discrimination of these persons based on place of residence, on the basis on Article 33, Paragraph 1, item 9 of the Law on Prohibition of Discrimination recommends the measure to the Ministry of Labor, Employment, Veteran and Social Affairs to issue an instruction or other act that will specify in detail the actions of local self-government units in such situations, i.e. in situations where a person resides in the territory of a local self-government and attends school or faculty on the territory of another local unit self-government in which, due to additional conditions such as the length of residence, they cannot exercise the right to the service.
The Ministry of Labor, Employment, Veteran and Social Affairs should inform the Commissioner for the Protection of Equality about the measures taken within your jurisdiction within 30 days.
[1] „”Official Gazette of RS”, nos. 98/06 and 115/21
[2] Law on ratification of the Convention on the Rights of Persons with Disabilities “Official Gazette of RS – International Agreements“, no. 42/09);
[3] “Official Gazette of RS”, no. 22/09 and 52/21, Article 2, paragraph 1, item 1
[4] “Official Gazette of RS”, no. 129/07, 83/14 – other law, 101/16 – other law, 47/18 and 111/21 – other law
[5] “Official Gazette of RS”, no. 129/07, 83/14 – other law, 101/16 – other law, 37/19 and 111/21 – other the law
[6] “Official Gazette of RS”, no 24/11, Article 40, parа. 1, item 3, in relation with Article 44.
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
