no. 07-00-188/2022-02 date: 21 July 2023.

OPINION

The opinion was issued in relation to four complaints filed by the parents of four minor children from Niš due to discrimination based on disability and health status. In the complaints, it was stated that the parents submitted applications at the competition for users of child’s personal companion service announced by the City of Niš, as well as that after the applications were considered, their children were not provided with the personal companion service but were placed on the waiting list because the child’s parent was not permanently employed. In the statement of the City Administration for Social Activities of the City of Niš, it was stated that 77 requests were submitted, that the Commission considered them for the selection of users of the service of personal assistants and personal companions, and that 55 users received the service. It was further stated that Article 6 of the Criteria for the selection of users of the service of personal assistants and personal companions stipulates that persons who meet the requirements according to the basic criteria but, due to the partial fulfillment of the conditions from the additional criteria, are placed on the waiting list until a vacancy or until additional financial resources are secured for financing of this service in the City budget for the current budget year. It was also stated that Article 24 of the Criteria stipulates that additional criteria are an assessment of the family situation, and that priority is given to children from families that have more than one person with disabilities in the same household, as well as to children from single-parent families that have no other members of the family household who can take care of the child. The Commissioner conducted proceedings in which it was determined that the interdepartmental commissions gave an opinion that the services of a personal companion are needed for each child on whose behalf complaints were submitted, but that this service was not provided to them. It was further determined that the Criteria prescribe scoring so that the employment of parents and adult members of the family household that is permanent or for a fixed period is scored with 25 points, the employment of parents based on contracts for temporary and recurring jobs or temporary service contracts is scored with 20 points, while children whose parents are not employed or under a work contract do not receive additional points. Pursuant to the Law on Social Protection, it is indisputable that the service of a personal companion belongs to the social protection services provided by the local self-government, and it is the duty of the local self-government unit to establish and ensure the provision of this service to all children who need this service. This service is a service for child support with disabilities or developmental disabilities. From the Law on Social Protection and the Rulebook on closer conditions and standards for the provision of social protection services, it is indisputable that the user of the said service is a child with disabilities or developmental disabilities who needs support to meet basic needs in everyday life in the areas of movement, maintaining personal hygiene, feeding, dressing and communicating with others, provided that it is included in an educational institution, i.e. school, until the end of regular schooling, including the completion of secondary school. Therefore, none of the conditions for the realization of this service pertain to the labor-legal status of the parents or other members of the family household, but all conditions are set in reference to whether the child needs support and whether the child is included in an educational institution. The aforementioned regulations stipulate that the purpose of engaging a personal companion is to provide the child with appropriate individual practical support for inclusion in regular schooling and activities in the community, to establish the highest possible level of independence. Also, the aforementioned regulations explicitly stipulate that a personal companion cannot be a member of the family household in which the beneficiary lives, a relative in the direct line, or a brother or sister, that is, a brother or sister by the beneficiary’s father or mother. Therefore, the fact that the children were not provided with this type of support for reasons related to the labor-legal status of the parents and adult members of their family household (employed permanently or for a fixed period based on contracts for temporary and recurring jobs or temporary service contracts, not under a work contract, i.e., not employed) is not in compliance with the Law on Social Protection and regulations adopted based on that law, as well as with anti-discrimination regulations. The support of a personal companion is not a service that a child can wait for because failure to provide it puts children with disabilities or developmental disabilities at an unjustified disadvantage and prevents them from participating equally with other children in regular schooling and activities in the community, whereby the Commissioner points out that the children in question attend elementary school, which is compulsory pursuant the Constitution and the law. Therefore, the Commissioner issued the opinion that the City of Niš and the City Administration for Social Activities of the City of Niš put the children of the complainants in a disadvantageous position, namely: minors …, based on disability and health condition, in such a way that they were not provided with the service of a child’s personal companion in compliance with the law, thereby violating the provisions of Article 6 of the Law on Prohibition of Discrimination. Thus, the Commissioner recommended to the City of Niš and the City Administration for Social Activities of the City of Niš to remove the consequences of discriminatory treatment towards the complainant’s children, namely: minors …, by taking without delay all measures and activities within its jurisdiction to ensure that these children are provided with the service of a personal companion for the school year 2023/2024 in compliance with the regulations, until the new public call for 2024, that is, as long such need exists; to take all measures and activities within their jurisdiction in the future to ensure the provision of a child’s personal companion service in compliance with the regulations for each child for whom the need for this service is recognized; to harmonize their by-laws with anti-discrimination regulations in such a way that they do not prescribe discriminatory criteria such as for example, the labor-legal status criterion of the parents, that is, the guardian of the child; the criterion that this service is provided only if the Republic is the founder of the educational institution that the child attends, etc., as well as that in the future, within the framework of their activities, they adhere to regulations on the prohibition of discrimination.

Commissioner for the Protection of Equality

Brankica Janković