When a State enacts legislation that creates a right for a category of person, it is acknowledging that society has excluded or marginalised those people and is seeking to rectify this. This is why people with disabilities welcomed the Assisted Decision- Making Act 2015 last year. It is why, despite some misgivings, they welcomed the Citizens Information Act 2007, the Disability Act 2005, and the Education of Persons With Special Education Needs Act 2004 in the years before.
However, the gap between acknowledgement and action, reflected in the failure to fully implement this body of legislation mocks any such welcome. It is not enough to bestow symbolic rights nor is it acceptable to indefinitely delay enforceable rights. If justice delayed is justice denied, then the delay in implementing rights-based legislation for people with disabilities must be described as a scandal.
The Assisted Decision-Making Act was enacted in December 2015. It has not yet been commenced. Although the Act is ostensibly disability-neutral, it would create a system of supports for people with disabilities and others to exercise decision-making. The indications are that the Act will be commenced – partially only – towards the end of 2016, twelve months after its enactment.
‘Partial’ commencement is not a new phenomenon in Irish disability law. The Citizens Information Act was enacted in 2007. This Act provided for, among other things, the introduction of a Personal Advocacy Service, where advocates with a range of statutory powers would be employed to support persons with disabilities. The Personal Advocacy Service was never established. Instead, in 2011, a ‘National Advocacy’ Service was created, a limited service that employs advocates who do not have statutory powers.
The Disability Act disappointed many disability campaigners in 2005 as it was limited in scope and not ‘rights based’. The Act did provide for a right to an ‘assessment of need’, however it did not create a right to any service to meet that need once it had been assessed. After a decade of torpor all parts of the act have now been commenced except the crucial part providing for that right to an assessment of need. Currently, only children are entitled to an assessment of need and even with that there are difficulties. Some parts of the country report waiting times of up to a year for these assessments.
The Education of Persons with Special Education Needs Act (EPSEN) provides a comprehensive statutory framework for education of children with disabilities. Rightly welcomed as inclusive, the Act proposed a right to an individual education plan for children with disabilities. The implementation of the Act was to be staggered, but in 2008 this ground to a halt and was postponed indefinitely.
Successive governments have merely passed the buck for failure to implement these laws. In 2015, the Minister for Education Jan O’Sullivan blamed the previous government and admitted that the preferred avenue was now to bring in EPSEN’s provisions on a non-statutory basis. Most recently, in answering a Dáil question, Minister for Disability Issues Finian McGrath blamed decisions made in 2008 for the failure to commence the Disability Act and the EPSEN Act in full.
It is true that exchequer finances were in a poor state in 2008. However, this cannot be used to gloss over the fact that 2008 was a full three years after the enactment of the Disability Act and four years after the EPSEN Act. For much of that period the exchequer was flush.
The various Programmes for Government over these periods paint the picture. In 2007, three key commitments were made to “Complete the roll out of [EPSEN]”, to provide “a legal right to independent assessment of need”, and to “implement the Citizens Information Act”. By 2011, the Government had changed and the ‘Statement of Common Purpose’ committed to publishing a “plan for the implementation of the EPSEN Act” with no mention of the Disability Act or the Citizens Information Act.
In the current ‘Programme for Partnership’, there is a commitment to “consult with stakeholders to see how best to progress sections of the EPSEN Act” and an ambition to “improve services … particularly for early assessment and intervention for children with special needs”. Again there is no mention of independent advocacy.
It seems the rights of persons with disabilities are simply slipping off the page. Resources were scarce for much of the past decade but it is simply undeniable that where there were competing demand for resources, the rights of persons with disabilities lost out. That seems to be a part of who we are.
Sarah Lennon is Training and Development Officer with Inclusion Ireland