OPINION

The opinion was issued in the proceedings regarding the complaint filed by AA from …, on behalf of his minor son M.M., against the City Administration of the city of … (hereinafter: City) due to discrimination based on disability. In the complaint and supplements to the complaint, among other things, it was stated that the minor M.M. has autism, that he was “transferred” from a “regular” kindergarten to a “special” school BB in… and that the problem “emerged” when the child’s parents found out that the school does not provide duty staff during school non-working days (holidays and vacations), which was not the case when the child attended “regular” kindergarten. In the complaint, the applicant further stated that he submitted a request for the provision of daycare services to the Center for Social Work of the city …, but that his request was rejected with the explanation that the capacity of the VV Day Care Center was full, as well as that “all their users are in wheelchairs with multiple developmental disabilities and that that daycare is not a suitable environment for a child with autism”. He pointed out that he addressed the City several times to point out the problem that children with autism have and that “it is necessary to provide them with adequate support so that their parents can work unhindered and earn a living”, but that the City did not respond to any of the letters he sent. In the statement, the City specified, among other things, that it was familiar with the allegations of the complaint, that M.M. was sent to the Interdepartmental Commission of the city … and that after provided the support provided by the City, the parents asked that the stay at the school be extended during the vacation period or the child be enabled to periodically stay in the Day Center for Children and Youth with Physical Disabilities, i.e. intellectual difficulties – VV (hereinafter: VV). Furthermore, it was stated that the work with children in that day care is provided for a duration of four hours, that all children and young people are in wheelchairs and that their constant supervision is necessary, that the capacity of the residence is full and that “as such it is not adequate for a child with sensory disorders – autism”. It was pointed out that regarding the situation in which the complainant’s son is, several meetings of the Center for Social Work, the Center for the Provision of Social Protection Services of the City … – GG, ES BB and the City were held and that within those meetings a solution was found to redistribute, within the academic year 2021/22, the forty-hour working week of employees in ES BB in order to ensure the continuous stay of M. M. in the school premises also on days when the school calendar stipulates that they are non-working for both school students and teaching staff. During the procedure, it was established that the Decision on rights and services in the social protection of the City … prescribed a day care service for children and young people with physical disabilities, i.e. intellectual disabilities, which is implemented in the Day Care Center of VV in … Furthermore, the Decision on the establishment of the center for the provision of social protection services of the City … stipulates that the city … is the founder of the Center for the provision of social protection services of the City … within which is the Day Care Center VV. The provisions of Article 2 of the Rulebook on the work of the VV day care center stipulate that the day care service in that center is realized through planned and structured activities, with the aim of caring for children and young people with physical disabilities, i.e. intellectual difficulties, in order to improve the quality of their life in their own social environment, by encouraging and developing their social, psychological and physical functions and skills, in order that they achieve the highest possible degree of independence. Bearing in mind the above, the Commissioner points out that the submitted evidence shows that parents of other children with autism approached the City on the same occasion, and that the City was aware that the planned capacity of the day center does not meet the needs of all potential users – children with developmental difficulties. Given all the above, it is indisputable that this day care center was established in order to provide services to both children with physical disabilities and children with developmental difficulties, however, from the aforementioned, it is obvious that in practice this service is not provided to children with disabilities who do not use wheelchairs for movement. Furthermore, the Commissioner notes that the provision of Article 5 of the same Rulebook prescribes that the day care service should be provided to children and young people aged 5 to 26 with residence in the territory of the City of …, that the day care service is available 8 hours a day ( from 7:00 a.m. to 3:00 p.m.), five working days a week, that the capacity of this day care center is 10 users and that 2 professionals (educator and therapist) and 2 associates (nurse and companion in specialized vehicle) are directly engaged in the work with the users of this service. Bearing in mind the aforementioned provision, as well as the allegations from the City’s statement that work with children in the VV day care center is carried out for four hours, it is obvious that the work of the day center does not take place in accordance with the rule that the City itself adopted. In addition, shortening the working hours of the day care center, apart from not being in accordance with the Regulations on the operation of that day care center, prevents children who are already its users, as well as other children who need this service, from using the day care service to its full extent. Furthermore, in view of the allegations from the statement that the stay in VV is not adequate for children with intellectual difficulties due to other users who are in wheelchairs, the question arises whether in this specific case it was possible to evenly redistribute the working hours established by the Rulebook on work and stay at VV, and thus ensure that children with different types of disability use the services of that day center equally. This, especially considering that the day care service was not available even in the BB school in … because it is not implemented during school holidays and other non-teaching days. Given that the City of …, as a local self-government unit, is the founder of the Center for Social Work of the City of …, the Center for the Provision of Social Protection Services GG in whose jurisdiction is the Day Care VV, as well as of the Primary School BB, and that in none of these institution the day care service was not provided to the minor M.M., nor was an assessment of his needs carried out in order to place him on the waiting list of users in case of full capacity, the Commissioner issued the opinion that by failing to take measures regarding the provision of day care services, the City … placed the minor M .M. into an unjustifiably disadvantaged position based on his personal characteristic – disability, thereby violating the provisions of Article 6 of the Law on Prohibition of Discrimination. Therefore, the City was recommended to adopt a clearly established rule to ensure the provision of day care service, both to the minor M.M. and to other children with intellectual difficulties, who do not use wheelchairs for movement, and for whom this service is necessary; to send a written apology to the complainant for not responding to the e-mails in which he pointed out to the City the impossibility of using the daycare service, as well as not to violate the regulations on prohibition of discrimination in the future.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković