Excluding the Disabled in the EU:

Disabled People and the European Union:
equal citizens?

While there may be a growing formal commitment at EU-level to extend full citizenship and its accompanying free movement rights to disabled people (on the basis of non-discrimination), considerable obstacles still exist.

The conception of EU citizenship is particularly exclusive of those with neither the means nor the inclination to move to another Member State, for example, because of disabling barriers. Even if an individual does wish to move, they must satisfy certain criteria in order to qualify under the free movement provisions and obtain access to the panoply of social rights in another Member State. These criteria can be summarised as follows: you have to be an EU national and you have to be economically active (i.e. in work) or economically self-sufficient (that is, not dependent on welfare benefits). If you are neither of these, you can migrate as a dependent family member (that is, as the spouse, child or parent) of the migrant worker.

There are a range of additional barriers that restrict disabled people’s ability to effectively exercise free movement.The disparity between social security systems and welfare provision in different Member States acts as a deterrent to mobility.

Moving between Member States may result in the loss of existing benefits in the sending state and there are often qualifying periods before new claims can be made in the receiving state. Moreover, the conditions under which disabled people can export certain benefits are decidedly restrictive.

Non-legal barriers include barriers to physical movement especially in terms of inaccessible public transport; in addition to well-documented discrimination in employment, housing, public support, and assistance (Waddington and van dei Mei)

Case law also exists in relation to the status of unemployed Community migrants in pursuit of employment. In Antonissen (1991), for instance, the Court stated that jobseekers retain the status of worker and the right to move to another Member State to seek employment but that this right is not unlimited.

For example in Lebon (1987) the ECJ held that ‘those who move in search of employment qualify for equal treatment only as regards access to employment’.

In other words, they can move to another country in order to look for work but will not enjoy all the social and tax advantages attached to the status of worker until they have actually found work. This finding is problematic for those disabled people who require support systems (which may include statutory support or benefits) to be in place to enable them to seek and obtain employment. This dilemma is mitigated to a certain degree by the existence of EU legislation.

(Regulation 1408/71 supplemented by Regulation 574/72), which entitles
jobseekers to maintain benefits in their country of origin for up to three months while they are abroad looking for work, although certain benefits such as the provision of equipment may be restricted. A further disincentive for potential disabled migrants is that, on returning to their ‘home’ Member State, they may have to undergo a new assessment before they can recover any further benefits or forms of social support.

Currently, Community law specifies that the only family members who are entitled to move with the migrant worker and have access to the range of social and tax benefits in another Member State are: the worker’s spouse (legally married, heterosexual); their children who are under the age of 21; any other children who are over the 21 but who are dependent; and dependent relatives in the ascending line (Regulation 1612/68,Article 1

The concept of work under EU law is central to the operation and enjoyment of the free movement provisions but it is not clearly defined in any of the Treaties or secondary legislation. It has, instead, been left to the European Court of Justice (ECJ) to articulate and develop its meaning.

In one case concerning a disabled person’s claim, that of Bettray (1989), the Court rejected the claim of a disabled German man employed in a sheltered environment to be considered as a Community worker. Bettray was employed by a special Dutch scheme which aimed to ‘maintain, restore or develop the capacity for work’ of those who able to undertake some form of economic activity but who are not in a position to undertake regular employment either because of disability or substance misuse.

The ECJ held that such schemes could not constitute ‘genuine and effective’ work as the activities were tailored to fit the individual and were specifically aimed at rehabilitation and reintegration into the mainstream labour market. The ruling in Bettray, therefore, significantly highlights the worker status of over 300,000 disabled people in sheltered employment (Samoy 1992), because as Waddington and van dei Mei point out, contrary to the image of sheltered employment depicted in Bettray, the work of most sheltered workshops can be considered equally as ‘genuine and effective’ as that of most mainstream jobs.

Sources include:

Hannah Morgan and Helen Stalford.

http://disability-studies.leeds.ac.uk/files/library/Barnes-emw-Chapter-7.pdf

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