The Right to a Personal Assistant of People with Disabilities – a Guarantee of the Right to Live in Community

Mr. M is 65. He has suffered from bipolar disorder from an early age and was diagnosed with Parkinson's disease and mixed dementia later in life. As of 2010, his condition has worsened and he is now unable to carry out even basic tasks. Mrs. M, his wife, is the one who looks after him day and night and makes sure he is properly fed. Mr. M, like many other people with disabilities in Romania, is looked after and supported by his family, but his quality of life and participation in society should not fall entirely on his family’s shoulders.

According to data[1] published by the Ministry of Labour, on September 30th 2015, there were 759,019 people with disabilities in Romania, of whom 97.7% received care from their families or were living on their own.  However, what is not apparent in these statistics is the way these people live their lives. The extent to which local authorities meet the needs of people like Mr. M and the obstacles to dignified living are also not visible in these statistics.

When Mr. M’s family contacted the Commission for the Evaluation of Adult Persons with Disabilities from his county of residence for them to assess his disability degree, his rights guaranteed by the law were not in fact upheld. In principle, the Commission’s role is to assess whether the person can lead an independent life and, if the person needs constant assistance, to ensure the right to a personal assistant. This right is crucial for Mr. M, as his wife, who is already supporting him every day, could work as a personal assistant and receive compensation for her work.

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Law no. 448/2006: A personal assistant of a person with a severe disability is a person who looks after, offers assistance and care to the child or adult with disabilities, as stated in the recovery plan of the disabled child and the individual services plan of the disabled adult. 

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The first evaluation happened in 2012, when Mr. M received a Pronounced disability degree[2] and a certificate valid for 12 months. In 2015, his certificate was again valid for 12 months, but this time classified him as having a Medium disability. These diagnostics were issued despite the fact that Mr. M suffers from an irreversible, degenerative condition which has no cure. By classifying him as having a Pronounced or Medium disability, Mr. M is denied the right to a personal assistant, as only people listed as suffering from a Severe disability are granted this right. In his case, the Commission did not deem his disability severe enough.

His family grew increasingly desperate and frustrated, as they did not receive any explanation as to why Mr. M’s disability was deemed less severe as years went by. They did not know whom to contact and how to manage finances on a monthly allowance of merely 39 RON. Legal remedies seemed inaccessible due to the high costs and disappointment after the Commission’s evaluation. However, after hearing about The Pro Bono Network for Human Rights on the radio, Mrs. M decided to try to go to court and obtain the disability classification which would reflect her husband’s real needs and rights.

Pro Bono Lawyer Dora Călian, who is representing Mr. M in court through The Pro Bono Network, highlights the importance of recognising and protecting the rights of people with disabilities: “From the point of view of the legal strategy I adopted, I can say that the case is not a difficult one. We have managed to base our defence on a series of legal texts, norms, regulations (…) so that our position is in compliance with medical standards. The behaviour of these employees is absurd, even more so given that their job tends to be repetitive. Why is it difficult to issue a disability certificate which reflects reality?”

[1] Ministry of Labour: http://www.mmuncii.ro/j33/images/buletin_statistic/dizabilitati_III2015.pdf (accessed April 4th, 2016).

[2] In Romania, disabilities are classified according to three degrees: 1st degree – Severe, 2nd degree – Pronounced, 3rd degree – Medium.

Daniela Teodora Toma, ACTEDO volunteer and 3rd year student at the Faculty of Law, Babeș-Bolyai University, Cluj-Napoca