No. 07-00-292/2025-02  Date: 8.8.2025.

OPINION

The opinion was issued in the procedure regarding the complaint submitted by AA, the mother of a minor boy, against the Municipality of Varvarin for discrimination against her son in the process of exercising the right to the service of a personal assistant. The complaint stated that her son is a student with developmental disabilities, that he attends the Elementary School “BB” in Varvarin, and that he has not been provided with the support of a personal assistant even though the need for such support had been established. The complaint also indicated that the Municipality of Varvarin had not provided this support service to other children who also needed it, although it is obliged to do so in accordance with the law. In its response, the Municipality did not dispute that the service had not been provided to the complainant’s son, nor to other children with disabilities, explaining that the number of children requiring this service is increasing year after year, as well as the price paid per hour of the service provided, and that funds are lacking to implement the service in 2025. They also addressed the Ministry of Labor, Employment, Veteran and Social Affairs, but despite the funds they had received from the Ministry in previous periods, the total funds were not sufficient to ensure continuous provision of the service. The Commissioner for the Protection of Equality conducted a procedure in which it was established that the service of a personal assistant is a social protection service, that is, a support service for independent living, for which the local self-government is responsible, in this particular case the Municipality of Varvarin. The purpose of providing this service is to enable a child with disabilities to receive individualized practical support for inclusion in regular schooling and community activities, that is, for achieving the highest possible level of independence. From the response to the allegations in the complaint, it is undisputed that the Municipality of Varvarin did not provide this service to the complainant’s son, nor to other children with disabilities for whom the need for this service had been established, citing lack of funds. The very fact that the service of a personal assistant was not continuously provided to a child with disabilities, for whom it had been determined as a mandatory form of support, places the child in an unjustifiably less favorable position on the basis of a personal characteristic – health condition and disability, because this service enables the child to reach a position and equally enjoy the rights that children from the general population have. The Commissioner emphasizes that a unit of local self-government cannot be relieved of providing this service, which is necessary for the independent functioning of a child with disabilities and his access to education. The Law on Social Protection, as well as the Regulation on Earmarked Transfers, prescribes legal mechanisms in cases where a unit of local self-government providing this service belongs to those with a lower level of development. Therefore, the regulations of the Republic of Serbia do not recognize the possibility of exemption from the obligation to provide this service, which is a condition for exercising the right to inclusive education of children, a principle confirmed both by domestic practice and by the case law of the European Court of Human Rights. This Court, in its decisions, has taken the position that insufficient funds cannot be an excuse for failing to respect the rights and freedoms prescribed by the European Convention. According to the Court’s position, states must demonstrate that they are making every effort to improve the enjoyment of economic, social, and cultural rights, even when resources are scarce. The European Court particularly emphasized that if a state has opted for a model of inclusive education, it is then obliged to ensure this form of education, and without providing appropriate support services, this is not possible. The Commissioner for the Protection of Equality issued the opinion that, by failing to provide the service of a personal assistant to the complainant’s son, the Municipality of Varvarin violated the provisions of Article 6 of the Law on the Prohibition of Discrimination. The Municipality of Varvarin was recommended to undertake all necessary actions and measures to ensure the engagement of a personal assistant for the complainant’s son, for as long as there is a need in accordance with the act of the competent authority, as well as to ensure in the future that, within the scope of its regular duties and activities, it does not violate the legal provisions on the prohibition of discrimination. Bearing in mind that during the procedure it was established that the service of a personal assistant is not provided to other children with disabilities and developmental difficulties in the territory of this municipality either, although their need for the service has been determined, the Commissioner for the Protection of Equality, in accordance with Article 33, paragraph 1, item 9 of the Law on the Prohibition of Discrimination, also issued to the Municipality of Varvarin a general recommendation of measures for the promotion of equality and protection against discrimination. In this recommendation, the Municipality was advised to establish and implement the provision of the service of a personal assistant for all children in its territory whose need for this service has been determined, within the shortest possible time and before the beginning of the school year, and to inform the competent Ministry of Labor, Employment, Veteran and Social Affairs about this recommendation of measures, while respecting the rules on anonymization.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankicа Janković