5.

Social Rights of Persons with Disabilities, Children and

Young People
5.1. Persons with disabilities (Article 15 ESC)
People with disabilities constitute a vulnerable and numerous group,
because of its structured and operation in society, which has usually
maintained well-known conditions of exclusion. This has led to the
restriction of their basic rights and freedoms, conditioning or hindering
their personal development, as well as the enjoyment of resources and
services available to the entire population and opportunity to the
contribution of their skills to the progress of society. The longing for a
full life and the need for personal fulfillment move all people, but those
aspirations cant be met if they are restricted or ignored , like the rights
to freedom , equality and dignity . This is the case where there are still
men and women with disabilities, who, despite achieved undeniable
social progress, those rights are limited in access to environments ,
processes or services that either are not designed taking into account
their specific needs and are revealed either expressly limiting their
participation in them. There is therefore a varied and profuse set of
constraints that deprive people with disabilities from the full exercise of
their rights, and the effects of these obstacles materialize in a situation of
social exclusion, which should be inexcusably addressed by the
authorities. The promotion of measures to promote equal opportunities
suppressing the disadvantages concerns to all citizens, organizations and
institutions , but , first , to the legislator
The article 15 of the European Charter established that disabled
persons have the right to vocational training, rehabilitation and
resettlement, whatever the origin and nature of their disability , this
article is located in the Part I of the Charter which gives an introduction
of all the rights there contained. On the Part II these rights are more
developed and are suitable with the questions to be answered

5.1.1. What measures has your MS taken to provide persons with

disabilities with guidance, education or/and vocational training in
the framework of general schemes, or if not possible, through
specialised bodies, public or private?
Spain ratified the European Social Charter on 29 th April 1980 but this
Charter wasnt the last; on 13th December 2006 was approved in New
York, the Convention on the Rights of Persons with Disabilities (Spain
ratified the Convention on 3rd May 2008) which was promoted by the
UN; this Convention is composed of 50 articles, and was born with the
objective of working as an instrument to protect the rights and dignity of
persons with disabilities. All the states that ratified the Convention are
required to promote, protect, and ensure the full enjoyment of human
rights by persons with disabilities and ensure that they enjoy full equality
under the law; not only the Convention has served as the major catalyst
in the global movement from viewing persons with disabilities as objects
of medical treatment and social protection towards viewing them as full
and equal members of society, with human rights but also the Convention
was the first human rights treaty of the third millennium
Spain approved its first democratic Constitution in 1978, furthermore it
is the current supreme law of the state and the article 1 of the Spanish
Constitution establish that Spain is hereby established as a social and
democratic State, subject to the rule of law, which advocates freedom,
justice, equality and political pluralism as highest values of its legal
system; related with the equity we find the article 49 commanding as a
guiding principle of economic and social policy The public authorities
shall carry out a policy of preventive care, treatment, rehabilitation and
integration of the physically, sensorially and mentally
handicapped by giving them the specialized care they require, and
affording them special protection for the enjoyment of the rights granted
by this Part to all citizens. This order is focused on the policies adopted
by public authorities to attend the disabled in many different areas like
working, cultural, housing and sports.
Despite the acknowledgment which is made in the Spanish Constitution
for the disabled, a part of society considers that it is limited and that
there should be a series of reforms in the regulatory text and introduces
a series of articles. For example, the article 14 says that Spaniards are
equal before the law and may not in any way be discriminated against on
account of birth, race, sex, religion, opinion or any other personal or
social condition or circumstance as we can see in this article is not
included disabled people which is one of the reasons standing up for
reforming the Constitution
Anyway, the beneficiaries of this article are physical, sensory and
mentally handicapped, because of the existence of an impairment that
impede them a normal insertion in the usual vital relations of social life.
Likewise, is irrelevant that if the deficiency is birth or unexpected. It is

also irrelevant, that the cause of the difficulty of insertion comes from a
physical or sensory defect or a psychological problem because what is
valued is the certain existence of impairment.
If this right is infringed, people who consider that the right is violated
can resort to the Ombudsman. This leading figure will be in charge of
bringing an action of unconstitutionality or a refuge appeal if an action or
a law, approved by the State is opposite to the Constitution or if it the
action or the law is violated (according with the established on the
Spanish Constitution)
The most important law developed by the government related with
persons with disabilities, was the Law 13/1982, also known as the Law of
social integration of disabled people; this law was recently abrogated on
December 2013, because it was integrated in a single text joined to
two other generic disability laws in force in Spain; the Law 51/2003 of
equal opportunities , non-discrimination and universal accessibility for
people with disabilities and the Law 49/2007 establishing the system of
offenses and penalties in the field of equal opportunities, nondiscrimination and universal accessibility for people with disabilities.
Summarizing, the most important law developing the integration of
persons with disabilities is the Royal Legislative Decree 1/2013. These
three laws have been regularized, clarified and harmonized, following the
Convention on the Rights of Persons with Disabilities, which is the
explicit recognition of the rights of these people, and the obligation by
public authorities to ensure their full exercise on equal terms as other
citizens.
These rules have supposed a great legislative effort to unify all existing
legislation on the matter and ensures that disability is provided with all
kind of political actions , ensuring their protection in all areas , including
psychological aspects; as well as producing a significant change in the
view of disability , to finally overcome the welfare perspective of persons
with disabilities which , implicitly, has always existed in society , towards
a conception more adapted to the current reality, based on human rights.
In fact, even today dominates in our society the image of the " wheelchair
" as representative of this group. However, beyond this mere
stereotypical view , there is a great variability in the degree and type of
disability that can make a person (whether mental, physical and sensory )
that is mediated largely by the material and sociocultural environment
which it operates . Besides The law also includes definitions of direct,
indirect discrimination, harassment and discrimination by association , in
order to complete the legal framework prohibiting discrimination in all
its manifestations . Also, special consideration of multiple discrimination
is reinforced , to guarantee the rights of those who may be in this
situation of vulnerability accused
Specifically , the new revised text gives particular importance to the role
of " the care, treatment and counseling " throughout the intervention
process , emphasizing the need to facilitate both from the time of

detection of disability (or from the time you start a pathological

process)
, and throughout the various stages of the enabling or
interdisciplinary rehabilitation process , stressing the importance of
establishing objectives designed to maximize the use of their skills and
personal autonomy, taking into account the personal characteristics of
the person with disability, their motivations and interests and their social
and family environment . Also, the legislation considers key that
multidisciplinary care teams at each disability sector level, may have the
specialized training and skills necessary to provide effective care adapted
to the needs of people with disabilities to ensure their inclusion and full
participation in society on an equal basis
The Spanish Committee of Representatives of People with Disabilities
( SCRPD ) , described the new rules, in whose draft has participated with
other organizations, "as a breakthrough for people with disabilities, and
is that although it is not a new law, represents progress in legislation,
making it more secure ". For its part, the Spanish Confederation of
People with Physical and Organic Disabilities (SCPPOD), has also shown
support for unification and updating of legislation , which emphasizes the
definition of different types of discrimination, coordination of
Administrations for the prevention of disability and classification of the
types of employment, In the words of Mario Garcia, president of
SCPPOD, " the new rules must ensure the exercise of the rights of the
disabled , which remains the major unresolved for our collectives task.
Repeated failure of the laws that affect us directly harms the objectives
that were approved : ensure our full integration and normalization. "
We cant include all the rights and rules included on the Royal Decree.
This is the reason why we are going to summarize some of the measures
included on the Royal Legislative Decree:
On the field of health protection : People with disabilities have the
right to protection of health, including disease prevention and
protection ,promotion and restoration of health without
discrimination on grounds of disability and the prevention of
impairments and disabilities will assist to the diversity of people
with disabilities , giving special treatment to the specific needs of
each person.Finally the multidisciplinary teams qualification and
recognition of the degree of disability will be responsible for
evaluating and qualifying situations of disability
On the field of education: people with disabilities have the right to
free education of high-quality , on equal basis with others . But what
is inclusive education? It is an educational model that seeks to
attend to the learning needs of all children , youth and adults with
special emphasis on those who are vulnerable to marginalization
and social exclusion but the most important thing, is that the
government have to guarantee a school which assist to the need of
students with disabilities, paying attention to the diverse
educational needs of students disabled. The schooling of these
pupils in special schools or replacement units only take them out

when exceptional needs cannot been produced; these special

education centers will create the necessary conditions to facilitate
connection with mainstream schools , and the inclusion of students
in the regular education system. Many handicapped cannot attend
classes, so hospitals must have an educational section to prevent
and avoid marginalization of the educational process of school-age
students admitted to these hospitals.
On the field of participation on public matter: people with
disabilities, may exercise the right of participation in the life
political and electoral processes, on an equal way with the rest of
the citizens
On the field of general integration: the public authorities will take
appropriate measures to ensure universal accessibility, equality
basis with other people , processes, goods , products and services,
transport , information and communications, including systems and
information technology and communications in urban and rural
areas .

5.1.2.What measures has your MS taken to promote their access to

employment through measures to encourage employers to hire and
maintain in employment persons with disabilities in the ordinary
working environment, adjust the working conditions to the needs of
the disabled or, where this is not possible by reason of the
disability, by arranging for or creating sheltered employment
according to the level of disability?
On the Royal Legislative Decree previously cited is established that
disabled people of working age are entitled to benefit from vocational
and professional rehabilitation , job retention and return to work. But
this it isnt the only right included.
People with disabilities have the right to work in conditions that ensure
the application of the principles of equal treatment and nondiscrimination ; regulations also make a classification of the types of
work that are:
Ordinary employment in companies and public administrations ,
including services supported employment.
Employment protected in special employment centers and labor
enclaves
Self Employment.
Employment of people with disabilities, will be promoted by establishing
aid to help their labor inclusion . This aid may include grants or loans for
recruitment , adaptation of jobs , removing all barriers that hinder their
access , mobility, communication or understanding in production facilities
, the ability to establish themselves as self-employed , reductions in social
security contributions. Employers are required to take appropriate

measures to adapt the workplace and accessibility of the company ,

depending on the needs of each specific situation, in order to enable
people with disabilities access to employment
Besides of all this, on the Spanish legislation we may emphasize 4 factors
of employment: the compulsory recruitment of people with disabilities by
companies; the labor enclaves; the recruitment subsidies and the
supported employment program.
-What does the compulsory recruitment of people with disabilities by
companies mean? Public and private companies , employing a total of 50
or more employees shall be bound by that by including at least 2% of
workers with disabilities. The above calculation is made on the total
workforce of the company concerned , whatever the number of
workplaces in it and whatever the form of employment contract links the
company workers; exceptionally companies may be exempted from the
obligation to hire people with disabilities, in whole or in part , either
through agreements contained in collective bargaining for state level and
, alternatively , lower level, either by choice voluntary employer , duly
communicated to the labor authority , provided that in both cases the
certain alternative measures are applied according to rules
It is understood exceptionality:
When a disabled worker its not incorporated to the company due to
inability of public employment services to meet the job because of
lack of jobseekers with disabilities placed in the specified
occupation or when there are not adequate working conditions
offered in the bid.
When there are productive, organizational, technical or economic
reasons that dissuade the incorporation of disabled workers to the
staff of the company.
In case that companies cant achieve employment for persons with
disabilities, there exists some alternative measures like:
Contracts with a special employment center, or a self-employed
person with disabilities, to supply raw materials, machinery or the
provision of external services and accessories that makes possible
the exercise of the activity or the creation of a labor enclave
Donations and sponsorships for job creation for people with
disabilities, to foundations or associations of public utility, whose
corporate purpose is vocational training and job placement for
people with disabilities

- Labor enclaves: are the contracts between partner companies, and a

special employment center for the execution of works or services directly
related to their normal activity and for the recruitment of workers with
special disabilities to the workplace of the partner company . Which are

the main objectives? Easing the transition from work in a special

employment center to work in partner companies and enabling the
growth of the activity of special employment centers and recruitment of
these centers of new disabled workers.
-The recruitment subsidies: these subsidiaries are assigned to workers
with special difficulties to access the regular labor market; to people with
cerebral palsy, mental illness or intellectual disability with a recognized
degree of disability equal or greater than 33 %, and to persons with
physical or sensory disabilities with a degree of disability equal or
greater than 65 %. The subsidies consist of:
Grants of 7,814 per indefinite contract full time. If the contract is
part-time , the grant will be reduced proportionally to the agreed
working hours
100 % of bonus on corporate contributions to Social Security
including accidents at workplace and occupational diseases and
joint collection contributions throughout the contract period
Grant for job adaptation and elimination of architectural barriers in
an amount not exceeding 902 per job , but in no case exceeding
the actual cost , the effect is justified by that adaptation or
disposal.
-Supported employment program: the set of actions directed towards
workplace, provided by specialized job coaches, who aim to make
possible social and occupational adaptation of disabled workers with
special difficulties in finding employment. Some actions are: the
approaching and mutual assistance between the worker, employer and
company personnel; the monitoring and evaluation of the worker process
of integration into the workplace and advising and informating to the
company on the needs and processes of adaptation in workplace.
-Finally, we should talk about bonuses give to companies that hire disable
people:
Regarding the indefinite hiring of disabled persons , companies will
have a number of bonuses:
o If the disability is younger than 45 years old and has an
overall disability (4500 / year) whereas if he has a severe
disability ( people with cerebral palsy , mental illness or
intellectual disability equal to or greater than 33 % and
physical or sensory disability equal to or greater than 65% . )
will receive a bonus of 5,100 / year
o If the disabled person is a woman with a general disability,
5,350 / year, but if the disability is severe, 5,950 / year
o And finally if hired persons are over 45 years old with a
general disability 5,700 / year, while if the disability is
severe 6,300 / year bonus to the company

These bonuses will be maintained until people with disabilities finish

their contract or terminate the contract. All these bonuses are contained
in Law 43/2006 for improving growth and employment.

5.1.3. What impact did the austerity measures taken have had on
the measures described under 5.1.1 and 5.1.2?
In 2008 an economic and financial crisis hit firstly the USA, which quickly
crossed the Atlantic Ocean reaching the European coasts, being one of
the most affected countries Spain. Its economy weakened, a large part of
the population was fired from their job and today still one of four
Spaniards is unemployed, and many middle class families were close of
the threshold of poverty.
In response, the Commissioner for Human Rights of the Council of
Europe; Nils Muiznieks , published the report on our country after a visit
to Spain in June 2013; but in that visit Muiznieks said that the cuts " led
to the alarming increase of poverty of families in Spain ", " have adverse
impacts on the observance of human rights, those most affected by this
situation were children, young people and disabled, who should be
provided with "special protection" .One of the proposals made by
Muiznieks was that period of crisis are not entirely negative and should
be used " as an opportunity to adjust their national systems human
rights "and" improve the efficiency of national social security systems "
It is true that disabled persons are the group of population less affected
by the austerity measures but Muiznieks specified that austerity is
making worse the living conditions and possibilities of social integration
of people with disabilities. "The Spanish authorities should assess the
impact that budget constraints have for people with disabilities and
adjust the policies adopted so that sufficient resources ensure education
and employment of these people; However ,the Commissioner praises the
work of the large number of active NGOs representing persons with
disabilities throughout the country. They play an essential role in
providing services to persons with disabilities and are involved in
enquiries with the authorities on all aspects of the rights of persons with
disabilities, notably through CERMI (Committee of Representatives of
Persons with Disabilities)
Nils Muiznieks affirmed that whilst welcoming substantial improvements
in the policy and legal framework that aims to promote and protect the
human rights of the 3.8 million persons with disabilities in Spain, he was
worried about the serious impact that budgetary cuts have had on the
living conditions of these persons and their social integration. No impact
assessment of budgetary cuts on persons with disabilities has yet been
carried out; Muiznieks is also concerned by the fact that the economic
crisis and financial restrictions have had a detrimental impact on most
programes and policies aimed at promoting the inclusion of persons with

disabilities on an equal basis with others, including measures to improve

accessibility to general services as well as employment and training
programes. Given the very high rate of unemployment among persons
with disabilities, estimated at over 30%, the authorities are encouraged
to avoid limiting training opportunities and assistance in the field of
employment for these persons.
The Commissioner recognizes that the autonomy law was an important
step in promoting the rights of persons with disabilities, however , this
law conducted to a classification of levels of disability and dependency
which caused that a large number of disabled people were adversely
affected because of a large number of people whose disability was called
" moderate" were excluded from the benefits provided in the law. For the
implementation of the Law of Autonomy and dependence is needed a
combination funding from the central government and regional
governments , but this funding has been limited by both, mainly due to
economic problems , this has meant that people with disabilities should
pay a significant proportion of social benefits to which they are entitled
in order to cover the cost of services. In connection with the financing , in
order to reserve resources for implementing the Autonomy Act , some
regional governments have made cuts in other programs for people with
disabilities , thereby undermining the rights of people who do not need
support to be autonomous .
Currently, in Spain 24% of the people are unemployed and also 55% of
youth unemployment; handicapped cant escape of this; the
Commissioner indicated that, in general , sheltered employment has not
achieved its initial goal of integrating people with disabilities into the
regular labor market, as recognized by the authorities, although progress
in this regard has been made in the last decade despite shares in the
public and private sectors were introduced and Special Employment
Centres were created. However , the rise of unemployment in recent
years has also affected the disabled . The available data of employment of
these individuals indicated that in 2011 , 26.9 % of them were
unemployed while current unemployment rate exceeds 30%.This added
to the fact that the wages earned by people with disabilities have been ,
in many cases, extremely low. The Commissioner fears that this trend has
increased their vulnerability to poverty and social exclusion
The Commissioner welcomed the long-standing policy that advocates
integration into mainstream education of children with disabilities in
Spain and has resulted in an inclusion rate of 78% of children with
disabilities in the general system education.
However , the Commissioner has noted with concern that persons with
disabilities in Spain recorded a considerably lower completion rates than
the rest of the population rates ; so, according to the latest available data
, in 2008 11.5% of the disabled had not completed primary education
( compared to 2.1% of the total population ) , and only 10.5 % of people

with disabilities had attended university (compared to 24.1 % of the total

population ) .
NGOs have informed the Commissioner that budget cuts have caused
negative effects and was informed that in some schools all children with
disabilities are grouped to constitute a separate class , and in other cases
were included in regular classes, but without personalized support to
allow them to receive education on an equal basis with other children.
The lack of financial and human resources is often an argument used by
school administrations to provide reasonable accommodation and often ,
parents covering the cost of additional support is requested
This report caused a huge commotion in the country, because it looked
like if the country were really going down and many social rights were
violated; as a result of the publication of this report the government; via
the Ministers of Education, Health and Justice, decided to reply to the
Commissioner.
The Minister of Justice defended that as far as persons with disabilities
are concerned, the Ministry of Justice is preparing a reform of the Civil
Code to better fit it to the UN Convention on the Rights of Persons with
Disabilities the most important aspects of the Civil Code which were
going to be reformed were:
. The adoption of a new terminology, with the aim of removing
words such as
incapacity or handicapped. The concept of person
with complemented capacity is introduced.
. The target is not only to protect these persons with complemented
capacity, but also to
help them to take their own decisions.
. The draft text sets up a list of physical and mental illnesses and
provides that only
people with one of these illnesses need a
legal complement of their capacity in order to
guarantee
the
protection of their interests.
The Minister of Education stood up for that the Law of Education states
that comprehensive care to students with disabilities is to be governed by
the principles of normalization and integration, and it also states that
education authorities shall ensure the schooling of these students, and
arrange the procedures and resources needed to the early identification
of their educational needs and enabling them to reach the maximum
development of their personal abilities and of general goals set forth by
the Law. In turn, centres will have an adequate school organization, and
conduct the curricular adjustments and diversifications required to make
it possible for all students to achieving the established objectives.
Besides talking about University, persons with disabilities are entitled to
full exemption from fees and charges for studies leading to the award of
a degree, if they have a recognized degree of disability equal to or
greater than 33%. The Ministry has moreover signed a number of
cooperation agreements with several foundations amounting to
800,000, to promote the access and inclusion of persons with disabilities

in the Spanish university system, in both public and in private

universities
The Minister of Health refuted the view expressed by the Commissioner
consisting ofthe correspondence between levels of disability and access
to services is problematic from the point of view of the Convention on the
Rights of Persons with Disabilities, it must be borne in mind that the
Autonomy Law does not qualify disability, but dependency, the degree of
which determines the access to the autonomy and dependency system
services.
The official declaration of disability is regulated by other legislative acts,
and evaluated as a social disadvantage against the persons environment
and possible material, social, or cultural obstacles to live independently
and be included in the community. The support needed by the person is
associated to this level of social disadvantage.