No.  07-00-178/2017-02  Date: 22 September 2017

Acting within its legally prescribed mandate^[1] to monitor the implementation of anti-discrimination laws and to issue recommendations to public authorities and other entities aimed at achieving equality, the Commissioner for the Protection of Equality hereby issues to the Čačak City Assembly the following

RECOMMENDATION CONTAINING MEASURES FOR ACHIEVING EQUALITY

The Commissioner for the Protection of Equality hereby recommends to the City of Čačak to:

– amend the Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak with respect to the provisions setting the age limit for beneficiaries of day care centers for children, youth and adults with developmental impairments and to harmonize such provisions with anti-discrimination regulations as well as with the Law on Social Protection.

The City of Čačak shall notify the Commissioner for the Protection of Equality about the measures taken to secure implementation of this recommendation within 30 days of receiving the present recommendation containing measures for achieving equality.

Appeal nor any other legal remedy against this recommendation containing measures for achieving equality shall be impermissible as this recommendation shall not serve to decide on rights and obligations of legal entities.

Rationale

The Commissioner for the Protection of Equality received a complaint filed by a citizen of Čačak who was a beneficiary of “Zračak” Day Care Center, an institution providing day care services to children, youth and adults with developmental impairments in Čačak, whose entitlement to this type of social service was terminated once she has turned 55 years of age. In the course of the complaint procedure, the Commissioner for the Protection of Equality has reviewed Article 86 of the Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak^[2] and has ascertained that this Decision stipulates that only persons between 25 and 55 years of age shall be entitled to day care services provided for adults with developmental impairments (physical, intellectual, mental, sensory, speech and language difficulties, social, emotional and multiple impairments) at the Institution for Day Care Services for Children, Youth and Adults with Developmental Impairments „Zračak“ in Čačak. According to the mentioned Decision, persons who have turned 55 years of age shall no longer be eligible for these services, in keeping with the Official Decision of the City of Čačak Social Welfare Center.

The Commissioner for the Protection of Equality is an independent, autonomous and specialized government institution established in keeping with the Law on the Prohibition of Discrimination and is tasked with suppressing all forms and types of discrimination and achieving equality in social relations. The authority of the Commissioner for the Protection of Equality has been defined broadly, in keeping with international standards, so as to enable the institution to perform its role effectively and efficiently. One of key competences of the Commissioner for the Protection of Equality is to receive and review complaints filed on account of suffered discrimination, to issue opinions containing recommendations for achieving equality in concrete cases of discrimination and to impose legally prescribed measures. In addition, the Commissioner is authorized to propose a reconciliation procedure, and to initiate court proceedings for the protection against discrimination as well as to press misdemeanor charges on account of acts of discrimination defined by anti-discrimination regulations. Furthermore, the Commissioner for the Protection of Equality is authorized to issue warnings to the public regarding most frequent, typical and severe cases of discrimination and to recommend measures for achieving equality to public authorities and other entities.^[3]

Republic of Serbia has ratified the Revised European Social Charter^[4], which envisages in Section I, Paragraph 1, Items 14) and 15) that everyone shall be entitled to use social protection services, as well as that persons with disabilities shall be entitled to independence, social integration and participation in the life of a society. The Charter promotes the right of the elderly to social protection. Article 23, paragraph 2 states that a state shall have the obligation to adopt or encourage, directly or in cooperation with public and private organizations, adequate measures aimed at enabling the elderly to choose freely their way of life and to lead an independent life in their family setting as long as they wish and are able to do so, by providing accommodation in line with their needs and health status or adequate forms of support necessary for adapting their living space, extending health care services and services they need for their condition, as well as to guarantee those elderly persons living in assisted living facilities appropriate support, while at the same time fully respecting their privacy and their decision making on issues concerning living conditions in those institutions.

At the United Nations Second World Assembly on Ageing held in 2002 in Madrid, the Political Declaration and the Madrid International Plan of Action on Ageing were adopted^[5]. The Political Declaration on Ageing included commitments from Governments to eliminate all forms of discrimination, including discrimination on the grounds of age. In addition, there was a consent that all persons irrespective of their age, shall have the right to be respected, a right to a healthy and safe life and active participation in the economic, social, cultural and political life of their society and readiness was expressed to improve the recognition of dignity of older persons and to eliminate all forms of neglect, abuse and violence (Article 5).

Article 21 of the Constitution of the Republic of Serbia prohibits all forms of discrimination, direct or indirect, on all grounds, in particular on the grounds of race, gender, national affiliation, social origin, birth, religion, political or other beliefs, financial status, culture, language, age and physiological or physical disability.

Article 69 of the Constitution of the Republic of Serbia stipulates that citizens and families in need of assistance by the society in overcoming social and life difficulties and in creating conditions to meet their basic life needs, shall be entitled to social protection, which is based on principles of social justice, humanism and respect of human dignity.

Constitutional ban of discrimination is further elaborated in the Law on the Prohibition of Discrimination, stating in Article 2 paragraph 1 item 1, that the terms “discrimination” and “discriminatory treatment” shall be used to designate any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin color, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organizations and other real or presumed personal characteristics. Provisions of Article 17 of the Law on the Prohibition of Discrimination state that discrimination in the provision of public services shall be considered to occur if a legal or physical entity, within the framework of its/his/her activities or profession, refuses to provide a service on the grounds of a personal characteristic of an individual or a group of persons, or if the said entity, in order to provide the service in question, requires the fulfillment of some condition that is not required of other individuals or  group of persons, or if the said entity unwarrantedly gives priority to another individual or a group of persons when it comes to providing a service. In addition, provisions of Article 23 of the Law on the Prohibition of Discrimination states that discrimination on the grounds of age shall be prohibited.

Article 2 of the Law on Social Welfare Protection^[6] states that social welfare protection is an organized activity of public interest aimed at extending assistance to and empowering individuals and families for an independent and productive life and which is geared towards preventing and mitigating consequences of social exclusion. Provisions of Article 4 and paragraph 1 of Article 5 state that each and every individual and family in need of social assistance and support aimed at addressing social and life difficulties and creating conditions for meeting basic life needs shall be entitled to social protection, in accordance with the law, while rights to social protection shall be provided for by extending social welfare services and financial support, and social welfare services shall be defined as activities which include support and assistance to individuals and families aimed at improving or preserving quality of life, eliminating or mitigating risks associated with negative life circumstances, as well as creating opportunities for an independent living in the society. Social welfare rights or services beneficiary shall be an individual or a family facing obstacles in meeting their needs which prevents them from attaining or maintaining life quality or lacking sufficient financial funds to meet their basic life needs being unable to do so through work, asset revenues or other sources.^[7] Article 25 of this law states that discrimination of social welfare beneficiaries shall be prohibited on the grounds of their race, gender, age, national affiliation, social origin, sexual orientation, religion, political, trade union or other orientation, financial status, culture, language, disability, nature of social exclusion or other personal characteristic.

Article 40 of the Law on Social Welfare Protection classifies social welfare protection services into following categories: 1) assessment and planning services – assessment of the current situation, needs, strengths and risks of the beneficiary and other significant persons in her/his environment; assessment of the guardian, foster and adoptive parent; development of an individual or family plan of service extension and legal protection measures and other assessments and plans; 2) daily community services – day care services; in-home assistance; shelters and other services offering support to the beneficiary in continuing to live in his/her family and his/her immediate environment; 3) independent living support services – assisted living; personal assistance; independent living trainings and other forms of support necessary for the beneficiary’s active involvement in the society; 4) counseling, therapy, social and education services – intensive support services extended to families in the time of crisis; parent, foster and adoptive parent counseling and support; assistance to families caring for their child or adult family member with developmental impairments; maintaining family relations and family reunification; counseling and support in case of domestic violence; family therapy; mediation; helplines; activation and other counseling and educational services and activities; and 5) residential services –  living in the family, foster or host family setting for adults and the elderly; residential homes; shelters and other types of residency.

Article 41 of the Law on Social Welfare Protection stipulates that social welfare services beneficiary shall be an individual or a family facing obstacles in meeting their needs which prevent them from attaining or maintaining life quality or lacking sufficient financial funds to meet their basic life needs being unable to do so through work, asset revenues or other sources. This Article defines the following categories of beneficiaries: 1) minors and  persons up to the age of 26 years (a young person, youth or young people), 2) persons who have reached the age of majority and are between 26 and 65 years of age (adults) and 3) persons who have reached the age of majority and are over 65 years of age (older beneficiary) in situations where their wellbeing, safety and productive life in the society is threatened by risks such as old age, disability, illnesses, family and other life circumstances, in particular if that beneficiary has 1) physical, intellectual, sensory or mental difficulties or difficulties in communication and where due to social or other obstacles, such person faces functional limitations in one or several areas of life; 2) where there is a danger that such person would become a victim or has already become a victim of self-neglect, neglect, abuse, exploitation and domestic violence; 3) where that person is facing difficulties due to dysfunctional family relations, alcohol, drug or opiates dependency or due to other forms of socially unacceptable behavior and other reasons; 4) where that person is a victim of human trafficking; 5) where that person is a foreign national and person without citizenship in need of social welfare protection; 6) where that person is in need of residential services and has other social welfare protection needs.^[8] Article 44 Paragraph 2 of the Law on Social Welfare Protection stipulates that daily community services shall be provided by local self-government units.

Finally, it should be noted that Article 57 Paragraph 1 of the Law on Social Welfare Protection stipulates that detailed conditions and standards for extending and utilizing social welfare services shall be prescribed by the Minister in charge of social welfare protection. Pursuant to this Article, the Minister in charge of social welfare protection has passed the Rulebook on Detailed Conditions and Standards for Extending Social Welfare Services^[9]. Article 68 of this Rulebook stipulates that day care services shall be accessible to children and young people with physical disabilities or intellectual difficulties who are in need of day care and monitoring services as well as in need of support for maintaining and developing their potentials in such a way so as not to impede their education; to adults with physical disabilities or intellectual difficulties who are in need of day care and monitoring services as well as in need of support for maintaining and developing their potentials; children and young people who have had clashes with the law, their parents, school or community in such a way so as not to impede their education or their attendance at work; to adults and elderly persons in need of daily care and monitoring services.

Bearing in mind the fact that in this particular case we have persons with disabilities who are beneficiaries of day care center services, the Commissioner for the Protection of Equality wishes to point out the poor position of persons with disabilities as well as to highlight relevant regulations governing the position of this group of persons.

Namely, provisions of Article 5 of the Convention on the Rights of Persons with Disabilities stipulate that all individuals shall be equal before and according to the law, and that they all shall have, without discrimination, the right to equal protection and equal benefits in keeping with the law and that Signatory States shall prohibit all kinds of discrimination on the grounds of disability and shall guarantee persons with disability equal and efficient legal protection against discrimination on any grounds, while in an attempt to enhance equality and eliminate discrimination, Signatory States shall take all appropriate steps towards securing reasonable adjustments. In addition, Article 19 of this Convention stipulates that Signatory States to this Convention shall recognize equal rights to all persons with disabilities to live in a community, to have equal choices as others and that they shall take efficient and adequate measures to enable persons with disabilities to fully enjoy this right and to be fully included and to participate in the community, including, inter alia, access to a larger number of in-home, residential and other support services provided by the community, including personal assistance which they might need for living and inclusion into the community as well as those intended to prevent isolation or exclusion from the community of persons with disabilities. Articles 26 and 28 of the Convention stipulate that Signatory States shall undertake efficient and adequate measures, including through extending support by persons with similar impairments, aimed at enabling persons with disabilities to achieve and maintain maximum independence, full physical, mental, social and professional capacities, as well as their full inclusion and participation in all aspects of life. These articles also stipulate that Signatory States shall, with these objectives in mind, organize, strengthen and extend comprehensive services and programs of maintenance and rehabilitation, in particular in the area of health, employment, education and social services so as to have these persons included in such programs as early as possible and that such services and programs shall be based on multi-disciplinary assessment of individual needs and capacities. Signatory states recognize the right of persons with disabilities to social protection without discrimination on the grounds of disability and shall take adequate steps aimed at maintaining and promoting this right, including measures geared towards ensuring that persons with disabilities, in particular women and girls with disabilities as well as elderly persons with disabilities, are provided with access to programs of social welfare protection and poverty reduction programs.

In addition to establishing a general regime of prohibition of discrimination on the grounds of disability, the Law on the Prevention of Discrimination of Persons with Disabilities also stipulates that a public authority shall not with its actions or failure to act, discriminate against persons with disabilities and shall ban discrimination on the grounds of disabilities with respect to service accessibility. For the purpose of this law, service shall imply any service extended, with or without compensation, by a legal or private person within its scope of activities or long-term occupation.

The Commissioner for the Protection of Equality indicated that all relevant international documents state that persons with disabilities are entitled to live their life independently, with adequate support of their family and society if and when it is needed. In addition, it should be noted that it is necessary to enable persons with disabilities to live in a community in which they will have equal choices in much the same way that persons who have no disabilities have and in which they would be able to achieve and maintain maximum independence, full physical, mental, social and professional capacities and to be fully included i.e. to participate fully in all aspects of life. Institutions offering day care services are very important services providers in the social welfare system in terms of extending support and assistance to individuals and families, as well as in terms of enabling an individual to remain in his/her family setting, in particular with respect to strengthening the family itself and enabling it to retain its family member.

The analysis of the Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak^[10], showed that this Decision had been passed by the City of Čačak in keeping with Article 9 Paragraph 1 of the Law on Social Welfare Protection (“Official Gazette of the Republic of Serbia”, No. 24/11), Article 20 Paragraph 1 Item 17 of the Law on Local Self-government (“Official Gazette of the Republic of Serbia”, No. 129/07) and Article 63 of the Statue of the City of Čačak, No. 3/08), for the purpose of regulating social welfare services which are within the scope of competence of the City of Čačak as a local self-government unit. Article 86 of the abovementioned Decision which was the subject of analysis of the Commissioner for the Protection of Equality, stipulates that day care services for adults with developmental impairments shall be extended to persons between 25 and 55 years of age who have developmental impairments (physical, intellectual, mental, sensory, speech and language related impairments, social, emotional and multiple impairments). Day care center services include day care stay, meals, health care services, educational and socialization services, job training and occupational activities, cultural, entertainment and recreational activities in keeping with their abilities, preferences and expressed interest. According to the above mentioned Decision passed by the City of Čačak, persons who have turned 55 years of age shall cease to be eligible for such day care center services as a form of community social welfare services.

Reviewing above mentioned regulations and taking into consideration anti-discrimination regulations which prohibit discrimination on the grounds of age as a personal characteristic, it would be necessary to give answer the following question: was the defined age limit for exercising right to day care social welfare service in line with above mentioned regulations and whether it was necessary and justified.

Analyzing the Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak from the standpoint of anti-discrimination regulations and bearing in mind the fact that according to the mentioned Decision of the City of Čačak persons between 25 and 55 years of age are entitled to day care center services, the Commissioner for the Protection of Equality underlines that the Law on the Prohibition of Discrimination explicitly prohibits discrimination on the grounds of age and provides for the right to equal access to public services. In addition, the Law on Social Welfare Protection defines types of social welfare protection services and persons who can be beneficiaries of such services, while Rulebook on Detailed Conditions and Standards for Providing Social Welfare Services defines in detail conditions and standards of social welfare services, at the same time it defines groups of beneficiaries who are eligible for each and every service, including what such service implies and includes, by defining in more detail, inter alia, conditions and standards for day care center services without setting age limit as eligibility criterion, but rather it states that children and adults with physical disabilities or intellectual difficulties who are in need of daily care, monitoring and support services aimed at maintaining and developing their potential are entitled to this service; children and young people who have clashed with the law, their parents, school or community in such a way so as not to impede their education or job attendance; adults and elderly persons in need of daily care and monitoring.

Based on everything that has been previously said, it would be safe to say that the Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak, which sets the age limit is contrary to the Law on the Prohibition of Discrimination but also that such limitation does not exist neither in the Law on Social Welfare Protection nor in the Rulebook on Detailed Conditions and Standards for Providing Social Welfare Services.

Bearing in mind the objective of social welfare protection and purpose of extending day care center services, it should be stressed that community day care center service is an important and significant social welfare service extended to beneficiaries at the local self-government unit level. The main objective of social welfare services, including day care center service, is to extend support and assistance to individuals or families for the purpose of improving or maintaining their quality of life, eliminating or mitigating risks associated with unfavorable life circumstances as well as creating opportunities for their independent life in the society.

The aforementioned points to the conclusion that withholding right to day care center services to persons who have turned 55 years of age solely for the reason of their age is not justified, both from the standpoint of the pursued aim and from the standpoint of consequences such limitations results in, nor is such limitation justifiable by objective reasons.

As the contentious Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak which sets 55 years of age as the eligibility criterion for day care center services, the Commissioner for the Protection of Equality is of the opinion that such Decision is contrary to anti-discrimination regulations of the Republic of Serbia as it puts persons who have turned 55 years of age in a disadvantaged position, stripping them of their right to day care center services, thus discriminating this age group on the grounds of their personal characteristic – age, which is contrary to the Law on the Prohibition of Discrimination.

Commissioner for the Protection of Equality underlines the obligation to fully respect international and national anti-discrimination regulations in providing social welfare service to all service beneficiaries without discrimination in accordance with principles prescribe by the Law on Social Welfare Protection.

Taking into consideration all circumstances and acting in accordance with Article 33 Item 9 of the Law on the Prohibition of Discrimination, the Commissioner for the Protection of Equality hereby issues a recommendation to the City of Čačak to amend part of its Decision on Social Protection Benefit Entitlements and Services which are within the scope of competence of the City of Čačak, which pertains to age limit as an eligibility criterion for beneficiaries of day care center services extended to children, youth and adults with developmental impairments.

[1] Law on the Prohibition of Discrimination (”Official Gazette of the Republic of Serbia“, No.  22/09), Article 33. Paragraph 1. Items. 7. and 9.

[2] ‘’Official Gazette of the City of Čačak“, Nos.2/13, 22/13, 20/16.

[3] Law on the Prohibition of Discrimination, Article 33.

[4] Law on Ratification of the Revised European Social Charter (‘’Official Gazette of the Republic of Serbia – International Treaties“, No. 42/09)

[5] Resolution 57/167 United Nations General Assembly; Political Declaration and Madrid International Plan of Action on Ageing, 2002, A/CONF 197/9 http://www.un-ngls.org/orf/pdf/ MIPAA.pdf

[6] “Official Gazette of the Republic of Serbia”, No. 24/11

[7] Law on Social Protection, Article 41. paragraph 1.

[8] Law on Social Welfare Protection, Article 41.

[9] “Official Gazette of the Republic of Serbia”, No. 42/13

[10] “Official Gazette of the City of Čačak”, Nos. 2/13, 22/13, 20/16.