European Committee of Social Rights_France Fails to Guarantee the Right to Education of Children and...

8/10/2019 European Committee of Social Rights_France Fails to Guarantee the Right to Education of Children and Adolescent

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European Committee of Social Rights

Comit europen des Droits sociaux

DECISION ON THE MERITS

11 September 2013

European Action of the Disabled (AEH) v. France

Complaint No. 81/2012

The European Committee of Social Rights, committee ofindependent experts established under Article 25 of the EuropeanSocial Charter ("the Committee), during its 266th sessionattended by:

Luis JIMENA QUESADA, President

Monika SCHLACHTER, Vice-President

Petros STANGOS, Vice-President

Lauri LEPPIK

Birgitta NYSTRM

Rhan IIK

Alexandru ATHANASIU

Jarna PETMAN

Elena MACHULSKAYA

Giuseppe PALMISANO

Karin LUKAS

Jozsef HAJDU

Marcin WUJCZYK

Assisted by Henrik KRISTENSEN, Deputy Executive Secretary,

Having deliberated on 5 July and 11September 2013,

On the basis of the report presented by Petros STANGOS,

Delivers the following decision adopted on this last date:

PROCEDURE


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1. The complaint presented by European Action of the Disabled(AEH) was registered on 3 April 2012.

2. The complainant organisation alleges that France fails toguarantee the right to education of children and adolescents withautism and the right to vocational training of young adults withautism, in breach of Articles 10 (right to vocational training) and15 (right of persons with disabilities to vocational training,rehabilitation and social integration), read alone and/or inconjunction with Article E (non-discrimination) of the revisedEuropean Social Charter (the Charter) because of the differencein treatment, in the education and vocational training fields,between persons with autism and persons with other disabilities.

3. The Committee declared the complaint admissible on 12September 2012.

4. In accordance with Article 7 paragraphs 1 and 2 of the Protocolproviding for a system of collective complaints (the Protocol) andwith the Committees decision on the admissibility of the complaint,on 19 September 2012, the Deputy Executive Secretary sent thetext of the admissibility decision to the French Government (theGovernment) and to AEH. On the same day, he also sent thedecision to the Contracting Parties to the Protocol and the statesthat have made a declaration in accordance with Article D2, andto the organisations referred to in Article 272 of the EuropeanSocial Charter of 1961.5. In accordance with Article 311 of the Committees Rules (theRules), the Committee set a deadline of 31 October 2012 forpresentation of the Government's submissions on the merits. Atthe Governments request, this deadline was extended to 30November 2012. The Governments submissions on the merits ofthe complaint were registered by the Secretariat on 30 November2012.6. In accordance with Article 312 of the Rules, the President ofthe Committee gave the complainant organisation until 15February 2013 to submit a response to the Governmentssubmissions. AEHs response was registered by the Secretariat on4 February 2013 and forwarded to the Government on 26 February2013.

THE PARTIES SUBMISSIONS

1 The complainant organisation

7. AEH alleges that, by failing to provide autistic children andadolescents with schooling, which is nonetheless compulsory,France is in breach of its obligations under Article 151 of theCharter.Furthermore, by failing to foster access to vocationaltraining for young adults with autism, France fails to fulfil itsobligation to promote, as necessary, the technical and vocationaltraining of all persons, including the handicapped, as laid down inArticle 101 of the Charter, and to provide or promote adequateand readily available training facilities for adult workers as

required by Article 103, sub-paragraph a, of the Charter.According to the complainant organisation, the fact that French


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persons with autism do not enjoy the right to vocational educationand training which has been granted to people with disabilitiesconstitutes discrimination on the ground of a disability, which is inbreach of Article E of the revised Charter.

8. AEH asks the Committee to find a violation of all the provisionsreferred to above.

2 The respondent Government

9. The Government asserts that it has made considerable financialand practical efforts to provide and promote education andvocational training for persons with autism and other pervasivedevelopment disorders (PDDs), making measurable progress overa reasonable timeframe despite a difficult budgetary context.

10. The Government therefore asks the Committee to find that

there has been no violation of Articles 101, 103 or 151 of theCharter, read alone or in conjunction with Article E.

RELEVANT INTERNATIONAL AND DOMESTIC LAW

A Domestic law and case-law

11. In their submissions the parties refer to the followingprovisions of domestic law:

12. Law No. 2005-102 of 11 February 2005on equal rightsand opportunities, participation and citizenship of persons with

disabilities referred to as the Disability Act.

13. Deriving from this law, Interministerial Circular No. 2005-124 of 8 March 2005(Official Education Bulletin No. 15 of 14April 2005) on provision for persons suffering from autism orpervasive developmental disorders (PDDs), which provides:

The legal provisions on the schooling of children withdisabilities, as consolidated by Law No. 2005-102 of 11February 2005 on equal rights and opportunities,participation and citizenship of persons with disabilities,apply fully to children suffering from autism or PDDs.

14. The Education Code

Article L111-1 of the Education Code

The right to education is secured to all so as toallow all individuals to develop their personality,increase their level of initial and further training,take their place in society and the world of work, andexercise their citizenship.



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All children shall have the right to a schooleducation, complementing the actions of theirfamilies and contributing to their upbringing.


To fulfil its obligations under Articles L. 111-1 and L.111-2, the public education service shall provideschool-based, vocational or higher education tochildren, adolescents and adults with a disability oran incapacitating health condition. In its fields ofcompetence, the state shall provide the necessaryfinancial and human resources for the mainstreameducation of children, adolescents and adults withdisabilities.

All children or adolescents with a disability or anincapacitating health condition shall be enrolled inthe school, or the establishment such as thosereferred to in Article L. 351-1, closest to their home,which shall then become their referenceestablishment.

If, in the context of their personal schooling plans,their needs call for them to be taught in a specialisedfacility, they may be enrolled by the competentadministrative authority in another school or anestablishment such as those referred to in Article L.351-1, on a proposal by their referenceestablishment and with their parents or legalrepresentatives consent. Such enrolments shall notprevent them from returning to their referenceestablishment.

Likewise, children and adolescents provided for inone of the establishments or services referred to inparagraph I, sub-paragraph 2 of Article L. 312-1 ofthe Social Welfare and Family Code or one of theestablishments referred to in Book I of the sixth partof the Public Health Code may be enrolled in a schoolor in one of the establishments referred to in ArticleL. 351-1 of this Code other than their reference

establishment, near the establishment providing forthem. The arrangements allowing for suchenrolments and attendance shall be established byan agreement between the education authorities andthe medico-social or health establishment concerned.

If necessary, special distance teaching arrangementsshall be offered by an establishment operating underthe authority of the Ministry of Education.

This teaching shall be provided before compulsoryschooling age if the family so requests.


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It shall be supplemented, where necessary, byeducational, psychological, educational, social,medical and paramedical activities co-ordinatedunder the personal plan provided for by ArticleL.112-2.

Where mainstream schooling has been decided on bythe commission referred to in Article L. 146-9 of theSocial Welfare and Family Code but the conditions ofaccess to the reference establishment make thisimpossible, the additional costs incurred bytransporting the disabled child or adolescent to anestablishment further away shall be covered by thelocal or regional authority responsible for makingsuch premises accessible. This provision shall notpreclude the application of Article L. 242-11 of theSocial Welfare and Family Code when theinaccessibility of the reference establishment is not

the cause of the extra transport costs.


To ensure that they are offered a suitable educationprogramme, all children, adolescents and adults withdisabilities shall be entitled to an assessment of theirskills and needs and the measures taken as part ofthis programme, according to a schedule adapted totheir situation. This assessment shall be carried outby the multidisciplinary team referred to in ArticleL. 146-8 of the Social Welfare and Family Code. Itshall be a requirement for the childs parents or legalrepresentative to be asked to express their views onthis occasion.

Depending on the results of the assessment, eachchild, adolescent or adult with a disability and his orher family shall be presented with an educationprogramme forming part of a personal schooling plancomprising the necessary adjustments, givingprecedence, wherever possible, to education in themainstream school system. The personal schoolingplan shall be one of the components of the

compensation plan referred to in Article L. 146-8 ofthe Social Welfare and Family Code. It shall set outthe arrangements for schooling, which shall be co-ordinated with the educational support measures setforth in the compensation plan.


The public higher education service shall providescientific, cultural and vocational training.

For this purpose, the public service shall:

1 Admit students and offer them guidance;


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2 Provide initial training;

3 Contribute to further training;

4 Train trainers.

Guidance for students shall include information onthe organisation of studies, career opportunities andthe possibility of transferring from one course toanother.

Further training shall be designed for all persons,regardless of whether they have work. It shall beorganised to meet individual or collective needs andinclude opportunities for adults to attend initialtraining courses together with special vocational orcultural training courses.


Children and adolescents with a disability or anincapacitating health condition shall attend infantsand primary schools and the establishments referredto in Articles L. 213-2, L. 214-6, L. 422-1, L. 422-2and L. 442-1 of this Code and Articles L. 811-8 andL. 813-1 of the Rural and Sea Fishing Code, ifnecessary in a specialised facility, where this methodof schooling most suits the pupils needs. Parentsshall be closely involved in the educational decision

and may be assisted by a person of their choice. Thedecision shall be taken by the commission referredto in Article L. 146-9 of the Social Welfare andFamily Code, in agreement with the childs parentsor legal representative. Failing this, the conciliationand appeal procedures provided for in Articles L.146-10 and L. 241-9 of the same code shall apply.At all events, where there is a legitimate need, pupilsshall be granted the necessary additional assistanceand support.

Teaching shall also be provided by qualified staff

attached to the ministry responsible for educationwhere the situation of a child or an adolescent with adisability or an incapacitating health conditionrequires them to stay in a medico-social or healthestablishment. Such staff shall either be stateteachers made available to these establishmentsunder arrangements established by decree or privateteachers working under contracts negotiatedbetween the establishment and the state inaccordance with the arrangements provided for inpart IV of book IV.A decree of the Conseil dEtatshall establish thearrangements by which teachers working in stateestablishments attached to the ministry responsiblefor persons with disabilities or possessing


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qualifications issued by the latter shall also providesuch teaching.

Article D351-3 of the Education Code

All children and adolescents with a disability, asdefined in Article L. 114 of the Social Welfare andFamily Code, shall be enrolled in the school or theestablishment such as those referred to in the firstparagraph of Article L.351-1 of this Code closest totheir home. This school or establishment shallconstitute their reference establishment.


The pupils education shall be provided primarily inthe mainstream schooling system, in his or her

reference establishment or, where appropriate, inanother school or another of the establishmentsreferred to in the first paragraph of Article L. 351-1of this Code, where the child shall be enrolled if hisor her personal schooling plan, as referred to inArticle D. 351-5 of this Code, makes it necessary toresort to a special facility.

Pupils shall continue to be enrolled in their referenceestablishment if, because of a health problem, theyare forced to make a temporary break in theirschooling and be taught at home, making use wherenecessary of special distance learning arrangements.

They shall also continue to be enrolled in theirreference establishment if they are provided for inone of the establishments or services mentioned inparagraph I, sub-paragraph 2 of Article L. 312-1 ofthe Social Welfare and Family Code or one of theestablishments referred to in Book I of the sixth partof the Public Health Code.

In such circumstances, they may be taught entirelywithin the teaching unit of the establishment

providing for them, as defined in Article D. 351-17 ofthis Code, or on an alternating basis, dividing theirtime between this teaching unit and their referenceestablishment or between the teaching unit and aschool or establishment with which theestablishment providing for them has negotiated aco-operation agreement under the arrangementsprovided for in Article D. 351-18 of this Code. In thelatter case, the pupil may be enrolled in this schoolor establishment.

At all events, the arrangements for the organisationof pupils educations shall be set out in their personalschooling plan or in their individual care plan, asdefined in Article D. 351-9 of this Code. Where


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appropriate, this plan shall establish thearrangements for pupils to return to their referenceestablishment.


The educational follow-up team referred to in thesecond paragraph of Article L. 112-2-1, which mustcomprise the pupil or his or her parents or legalrepresentative, together with the pupils referenceteacher as defined in Article D. 351-12, shallfacilitate the implementation and supervise thefollow-up of the personal schooling plan of each pupilwith a disability. At least once a year, it shall assessthe plan and its implementation and propose thenecessary adjustments to guarantee the continuityof the childs education. Assessments of this sortmay be organised at the request of pupils, their

parents or legal representative, the educational teamof the school or establishment concerned or thedirector of their medico-social or healthestablishment if adjustments seem essential in thecourse of the school year.

The educational follow-up team shall inform theCommission for the Rights and Self-Reliance ofPeople with Disabilities about any problem capable ofundermining the continued implementation of thepupils personal schooling plan.Where necessary, it shall present the commissionwith any revision of the pupils educational choices itconsiders advisable, subject to the consent of thepupil if he or she has reached majority or, otherwise,of his or her parents or legal representative. Duringmeetings of the educational follow-up team, thepupils parents may be assisted by a person of theirchoice or be represented by a third party.

Depending on the results of the assessment, eachchild, adolescent or adult with a disability and his orher family shall be presented with an educationprogramme forming part of a personal schooling plan

comprising the necessary adjustments, givingprecedence, wherever possible, to education in themainstream school system. The personal schoolingplan shall be one of the components of thecompensation plan referred to in Article L. 146-8 ofthe Social Welfare and Family Code. It shall set outthe arrangements for schooling, which shall be co-ordinated with the educational support measures setforth in the compensation plan.

15.The Social Welfare Code

Article L146-8 of the Social Welfare Code


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A multidisciplinary team shall assess the compensatoryneeds of persons with disabilities and their degree ofpermanent incapacity on the basis of their life projects andbenchmarks established by regulations and shall propose apersonal disability compensation plan. It shall hear personswith disabilities or, if they are still minors, their parents or

legal representatives, either on its own initiative or at theirrequest. As soon as they are capable of forming their ownviews, children with disabilities shall themselves be heardby the multidisciplinary team. The multidisciplinary teamshall go to the persons home, either on its own initiative orat the request of the person with a disability. Duringassessments, persons with disabilities, their parents or theirlegal representative may be assisted by a person of theirchoice. The membership of the multidisciplinary team mayvary according to the nature of the disability or disabilitiesof the person whose compensatory needs or degree ofpermanent incapacity it is assessing.

Where necessary and if the persons concerned so request,the multidisciplinary team shall seek the assistance of theestablishments or services referred to in sub-paragraph 11of paragraph I of Article L. 312-1 or of facilities designatedas reference centres for a rare disease or group of rarediseases.

Article L246-1 of the Social Welfare Code

"Any person with a disability resulting from autisticsyndrome or related disorders, regardless of their age, shallbenefit from multidisciplinary provision catering for his or

her specific needs and difficulties. Such provision shall beadapted to the condition and age of the individual, subjectto the resources available. It may be educational,instructional, therapeutic or social."

16. The following domestic judicial decisions are also relevant:

- Decision of the Conseil dEtat of 15 December 2010 (No.344729)

depriving a child, notably if disabled, of all possibility ofreceiving a school education or an appropriate school-type

training in accordance with the arrangements made in therelevant legislation to ensure compliance with theconstitutional requirement of equal access to education mayconstitute a serious and clearly unlawful infringement of afundamental freedom, within the meaning of Article L. 521-2 of the Code of Administrative Justice, warranting theintervention of the urgent applications judge .

- Decision of the Conseil dEtat of 8 April 2009,Laruelle (No. 311434) concerning the states liability fornegligence because of the failure to provide schooling forchildren with disabilities:


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the State's failure constitutes a fault such as toincur its liability, without it being possible for theauthorities to rely on the arguments that there is ashortage of educational facilities and that the parentsof children with disabilities receive compensatorybenefits .

- Decision of the Conseil dEtat of 16 May 2011(No. 318501) concerning provision for children withautism obligations of the state:

"Any person with a disability resulting from autisticsyndrome or related disorders, regardless of theirage, shall benefit from multidisciplinary provisioncatering for his or her specific needs and difficulties.

- Decision of the Marseille Administrative Courtof Appeal of 31 January 2008 (No. 05MA01886)

.. The state has a legal obligation to offer childrenwith disabilities an education at least equivalent,bearing in mind their personal needs, to thatprovided for children attending a mainstream school.

B International standards and instruments

17. AEH makes particular reference to the following articles of theUnited Nations Convention on the Rights of Persons with

Disabilities of 13 December 2006, which has been ratified byFrance, and the Optional Protocol thereto:

Article 7 Children with disabilities

1. States Parties shall take all necessary measures toensure the full enjoyment by children with disabilitiesof all human rights and fundamental freedoms on anequal basis with other children.

2. In all actions concerning children with disabilities,the best interests of the child shall be a primary

consideration.

3. States Parties shall ensure that children withdisabilities have the right to express their viewsfreely on all matters affecting them, their viewsbeing given due weight in accordance with their ageand maturity, on an equal basis with other children,and to be provided with disability and age-appropriate assistance to realize that right.

Article 24 Education

1. States Parties recognize the right of persons withdisabilities to education. With a view to realizing this right


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without discrimination and on the basis of equalopportunity, States Parties shall ensure an inclusiveeducation system at all levels and lifelong learning directedto:

(a) The full development of human potential and sense ofdignity and self-worth, and the strengthening of respect forhuman rights, fundamental freedoms and human diversity;

(b) The development by persons with disabilities of theirpersonality, talents and creativity, as well as their mentaland physical abilities, to their fullest potential;

(c) Enabling persons with disabilities to participateeffectively in a free society.

2. In realizing this right, States Parties shall ensure that:

(a) Persons with disabilities are not excluded from thegeneral education system on the basis of disability, and thatchildren with disabilities are not excluded from free andcompulsory primary education, or from secondaryeducation, on the basis of disability;

(b) Persons with disabilities can access an inclusive, qualityand free primary education and secondary education on anequal basis with others in the communities in which theylive;

(c) Reasonable accommodation of the individualsrequirements is provided;

(d) Persons with disabilities receive the support required,within the general education system, to facilitate theireffective education;

(e) Effective individualized support measures are providedin environments that maximize academic and socialdevelopment, consistent with the goal of full inclusion.

()

5. States Parties shall ensure that persons with disabilitiesare able to access general tertiary education, vocationaltraining, adult education and lifelong learning withoutdiscrimination and on an equal basis with others. To thisend, States Parties shall ensure that reasonableaccommodation is provided to persons with disabilities.

OTHER SOURCES

18. AEH refers to the following documentation:

-- National Ethics Advisory Committee for Life Sciences and Health


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Opinion on care for persons with autism in France, report No. 47of 10 January 19963

-- Report by Mr Jean-Franois Chossy, MP for the Loire, Thesituation of autism in France: needs and prospects, presented tothe Prime Minister in September 2003, p. 754

-- IGAS, The placement of French people with disabilities inforeign establishments, Report 2005-143, September 20055

--Children and adolescents suffering from autism and relatedsyndromes provided for by medico-social services andestablishments, DRESS study No. 396, April 20056

--Promoting the professional integration of young people withdisabilities, report by the MP from the Gard, YvanLachaud,February 20067-- National Advisory Committee on Human Rights,

Opinion on schooling of children with disabilities, 6 November20088

--The situation in France of children and adults with autism,Opinion No. 102, 2007, of the National Ethics Advisory Committee,rapporteur: J.-C. Ameissen9

-- Report by Ccile Gallez, MP from the Nord dpartement,"Provision for the elderly and the disabled in Belgium", February200910

-- 2010 Report of the National Disabled Persons Advisory

Committee, presented to the Minister of Solidarity and SocialCohesion, Ms Roselyne Bachelot, on 16 May 201111

-- Recommended best professional practicesPromoting high-quality care for people with autism or other pervasivedevelopmental disorders, ANESM, January 201012

--Schooling for Children with Disabilities, Report by Paul Blanc,member of the Senate for Pyrnes-Orientales, presented to thePresident of the Republic in May 201113

-- "Evaluation of the impact of the Autism Plan for 2008-2010",

report to Roselyne Bachelot, Minister for Solidarity and SocialCohesion, by Valrie Ltard, former minister and Senator for the"Nord" dpartement, December 2011, submitted on 12 January201214

--Autism and other pervasive developmental disorders: co-ordinated educational and therapeutic practices in children andadolescents, recommended best practices, National HealthAuthority (HAS), March 201215,which recommends the method ofcaring for children and adolescents with autism in specialisedinstitutions, drawing mostly on a developmental and educationalapproach to autism:
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Behavioural and developmental treatment are

intended to change the behavioural characteristics ofautism spectrum disorders. Their aim is to improvechildrens skills in all areas to facilitate their socialintegration, their emotional self-regulation, theirdaily lives and their learning abilities. This type of

treatment is referred to as comprehensivetreatment because it targets several areas of childfunctioning. Behavioural treatment takes its originsfrom the systematic application of treatment basedon the principles of learning theory, in other wordsthe method called applied behaviour analysis, mostfrequently referred to as ABA. This consists inanalysing behaviour to understand the laws by whichthe environment influences it, then to developstrategies to change it. Teaching materials arechosen by the adult, who instigates all interactionduring the sessions. Reinforcement is external to the

task being taught (positive reinforcement) andselected in advance by the adult. It would be usefulto carry out additional research on intrinsicmotivations.

19. The Government also mentions:

-- Opinion of the Economic, Social and Environmental Council of 9October 2012 (The economic and social cost of autism).

20. Autisms definition as a disability and, in particular, theimportance of the community making proper provision for it and

raising awareness about it, are mentioned by the following sources,cited by AEH:

-- the 10threvision of the International Statistical Classification ofDiseases and Related Health Problems (known as ICD-10),published by the World Health Organisation (WHO), which definesautism as follows:

A type of pervasive developmental disorder that isdefined by: (a) the presence of abnormal or impaireddevelopment that is manifest before the age of threeyears, and (b) the characteristic type of abnormal

functioning in all the three areas of psychopathology:reciprocal social interaction, communication, andrestricted, stereotyped, repetitive behaviour.

-- Opinion of the Economic, Social and Environmental Council of 6October 2012, as requested by the National Assembly, on theeconomic and social cost of autism, which includes the followingcomments in its introduction:

It was the recognition of autism as a disability in1995, which brought the issue of autistic personsand their family out of the private, family andmedical sphere and made it a matter of concern tothe whole of society. However, this process of


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drawing autism out of the purely private sphere isnot yet complete. Autistic people are social beings,who, at every stage of their lives and whatever theirlevel of independence, will raise questions about theability of their physical and social environment tocater for their differences. The economic crisis that

our countries are currently experiencing mayintensify the rejection of people who are notconsidered normal andshift the financial and socialburden of support onto people with autismthemselves and their families. It is for this reasonthat all educational support in the behaviouralsphere is still charged to families in the absence ofcollective provision for a sufficient number of cases.The National Assembly should ask itself what place itwants to give to autists and their families in society.Does it want them to be fully integrated or fullysegregated? Assuming it chooses the former, this

can only be achieved by investing in practices whichmeet their compensatory needs. This investmentrepresents something more than just a cost becauseit helps to make the person concerned moreindependent and liberates his or her family at last totake up work and become a member of thecommunity .

--UN chief marks Autism Awareness Day with call for greatersupport to those affected16.Message of 1 April 2011 from the UNSecretary General, Mr Ban Ki-moon, concerning World AutismAwareness Day, on 2 April:

By designating 2 April as World Autism AwarenessDay, the United Nations General Assembly hashelped to galvanize international efforts to promotegreater understanding about autism. This yearsobservance is being marked with lectures, briefings,screenings, musical performances, videoconferences, art installations and other activitiescarried out by the United Nations family and a fullconstellation of partners. I welcome this growinginternational chorus of voices calling for action toenable children and persons with autism to lead full

and meaningful lives. This is not a far-off dream; it isa reality that can be attained by promoting positiveperceptions about autism, as well as a greater socialunderstanding of this growing challenge. I have seenwhat caring people who work tirelessly for this goalcan achieve. Last year, the United Nations hosted arock concert by Rudely Interrupted, whose membershave various disabilities, including on the autismspectrum. They brought the audience to its feet withwarm, communicative songs and showed, throughthe sheer joy of their performance, how much peoplewith disabilities can offer the world. The words of

lead singer Rory Burnside were especially inspiring.My advice, he said, to kids who have some formof disability is: dont let it stop you. Use it as your
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strength; dont use it as your weakness. One redlight can lead to a whole bunch of green lights, witha few orange lights thrown in. And the red lights are

just a bit of a test. There are definitely more greenand orange. On World Autism Awareness Day, let uscapture and share this spirit, and let us intensify

global efforts to ensure that children and personswith autism everywhere can benefit from thesupportive environment they need to reach their fullpotential and contribute to society.

THE LAW

I. PRELIMINARY OBSERVATIONS

21. The Committee notes that AEHs complaints relate to Articles10 and 15 and Article E read in conjunction with each of these, butit fails to explain which of its complaints come under which of theseprovisions.

22. The reason for this is that the material scope of Articles 10 and15 overlap as they both apply to the situation of children andadults with autism.

23. However, it is the Committees duty to examine each complaintlodged under the provision of the Charter to which it primarilyrelates.

24. On this subject, while the initial and continue vocational

training of persons with autism is covered both by Article 10, whichapplies to all people, and by Article 15, which applies to personswith disabilities, the purpose of the two articles, thoughcomplementary, is different.

25. The aim of Article 10 is to ensure that effective and appropriatevocational training is provided for the entire population. Paragraphs1 and 3 of this article establish the rule that everyone (includingpeople with disabilities but not just them) must have access tovocational training, with due regard for their needs. To a certainextent therefore these provisions are regarded as being dependenton individual needs or on the general needs of the labour market;

they also relate mainly to the means of access to vocationaltraining.

26. As to Article 15, the Committee would point out that theauthors of the Charter made significant changes to the substanceof Article 15 compared to the text of the 1961 Charter.

27. The explanatory report on the revised Charter describes thenew scope of Article 15 as follows:

63. The protection of the disabled afforded by this Articlehas been extended as compared to that afforded by Article

15 of the Charter [of 1961], as it no longer applies only tovocational rehabilitation but to the right of persons with


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disabilities to independent social integration, personalautonomy and participation in the life of the community ingeneral. The words effective exerciseof the right toindependence contained in the introductory sentence to theprovision imply, inter alia, that disabled persons shouldhave the right to an independent life.

64. Under this provision Parties must aim to develop acoherent policy for people with disabilities. The provisiontakes a modern approach to how the protection of thedisabled shall be carried out, for example by providing thatguidance, education and vocational training be providedwhenever possible in the framework of general schemesrather than in specialised institutions, an approach whichcorresponds to that of Recommendation No. R (92) 6 of theCommittee of Ministers of the Council of Europe. It not onlyprovides the possibility, but to a large extent obliges Partiesto adopt positive measures for the disabled.

28. According to the wording of Article 15 itself, its aim is to securethe right of persons with disabilities to independence, socialintegration and participation in the life of the community. Eachparagraph of Article 15 comes together to achieve this objective.

29. Consequently, Article 15 treats vocational training of personswith disabilities as one of the means of achieving the ultimateaims of independence, integration and participation.

30. For this reason, the Committee will examine the complainantorganisations complaints under Article 15.

I. THE ALLEGED VIOLATION OF ARTICLE 151 OF THECHARTER

31. Article 151 of the Charter reads:

Article 15 The right of persons with disabilities toindependence, social integration and participation inthe life of the community

Part I: Disabled persons have the right to independence,

social integration and participation in the life of thecommunity.

Part II: With a view to ensuring to persons with disabilities,irrespective of age and the nature and origin of theirdisabilities, the effective exercise of the right toindependence, social integration and participation in the lifeof the community, the Parties undertake, in particular:

1. to take the necessary measures to provide persons withdisabilities with guidance, education and vocational trainingin the framework of general schemes wherever possible or,

where this is not possible, through specialised bodies, publicor private.


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A. Submissions of the parties

1. The complainant organisation

a) The inadequacy of schooling for children with autism

32. AEH states that it is compulsory in France for all childrenbetween the ages of 6 and 16 to go to school. Furthermore, theConseil d'Etat has held that "depriving a child, notably if with adisability, of all possibility of receiving a school education orappropriate school-type training ... may constitute a serious andclearly unlawful infringement of a fundamental freedom." Inaddition, since a decision of 8 April 2009 the Conseil d'Etat hasheld that the States' obligation to provide schooling for childrenwith disabilities must be considered an obligation of result; it ruledthat " the State's failure constitutes a fault such as to incur itsliability, without it being possible for the authorities to rely on thearguments that there is a shortage of educational facilities and thatthe parents of children with disabilities receive compensatorybenefits." In a judgment of 16 May 2011 the Conseil d'Etatbroadened the scope of this case-law to include provision forpersons with autism.

33. Yet, in 2006 the Ministry of Education announced that 64% ofchildren with autism received no form of schooling, a figure whichhas not been updated since.

34. The French associations active in this field themselves estimatethat only 20% of children with autistic disorders have access tosome form of schooling. Of the remaining 80%, 30% attendmedico-educational institutes (IMEs) or day-hospital units, and inthis second case educational assistance is rarely offered.

35. It can therefore be concluded that the educational provisionprovided by France covers 50% of school age autism sufferers andhence that 40 000 school age children with autistic disorders haveno access to schooling, whether in ordinary classes or IMEs. Theyare thus deprived of the fundamental right to an educationappropriate to their needs, to which every child is entitled.

b) Inadequacy of mainstream schooling

36. According to AEH, the French state fails to honour itsundertaking under Article 151 of the Charter to take thenecessary measures to provide persons with disabilities withguidance, education and vocational training in the framework ofgeneral schemes wherever possible.

37. It is true that the Education Code states that children shall beentitled to attend mainstream schools, that the 2005 Act providesthat the schooling of children with disabilities in a mainstreamenvironment must be facilitated whenever possible and that theInterministerial Circular of 8 March 2005 stipulates that the legal

provisions on the schooling of children with disabilities, asconsolidated by Law No. 2005-102 of 11 February 2005 on equalrights and opportunities, participation and citizenship of persons


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with disabilities, apply fully to children suffering from autism orPDDs.

38. However, according to the Ministry for the Family andSolidarity only 11,500 children with autism were enrolled inmainstream classes in 2009/2010. The Ministry of Education hasgiven a figure of between 22 000 and 25 000 children with autismor similar disorders who were able to attend mainstream schoolson a full time or part time basis in 2011-2012. Therefore,according to the Ministrys figures, less than 30% of children withautism have access to mainstream schooling.

39. Furthermore, as children with autism move up through thestages of compulsory schooling the number attending mainstreamclasses decreases. According to the figures for 2010 provided bythe Ministry of Education at the meeting of the Autism Committeeheld on 14 March 2012, although 87% of children with autismattend mainstream classes at primary level, only 11% do so at

lower secondary and 1.2% at upper secondary level.

40. Besides this, the figures given by the Ministry of Educationcannot reflect the actual number of children with autism in schoolas they fail to take account of the diversity of situations. This isbecause, firstly, "enrolment does not systematically mean actualintegration in mainstream classes." Some children are "enrolled" ina school near their home but actually attend a different school oran IME. Secondly, full-time schooling and part-time schooling arecounted in the same way. However, a large number of [childrenwith autism] who go to school only do so on a part-time or evenextremely partial basis (3 hours per week).

41. Lastly, the school integration classes (CLIS) (at infants andprimary levels) and local school integration units (ULIS) (at lowerand upper secondary level) which take in children with disabilitiesin mainstream schools are often ghettoised, providing scantopportunities to integrate with mainstream classes and only rarelysharing activities with other classes. In principle, a majority ofpupils attending these specialised classes should receive anindividual education in another class within the school. However, inreality, a child with autism integrating a mainstream class for anumber of lessons must be accompanied by a school assistant(AVS) assigned to him or her individually, which is very often

refused because the teachers of the specialised classes are aidedby collective school assistants.

42. The presence of these AVSs has given a major extra impetus tothe integration of pupils with autism into mainstream schools.However, despite the Government's efforts since the Committeesdecision in 2004, there are still not enough AVSs and the schoolinspectorate struggles to assign them to families in practice. Infact, in most cases, the CDAPH (the Commission for the Rights andSelf-Reliance of People with Disabilities) assigns only a few hoursof AVS support to each child with a disability. Furthermore,according to the National Disabled Persons Advisory Committee

(CNCPH), the official number of hours is not always observed.


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43. Many schools refuse to admit children with autism unless theyare accompanied by an AVS. Yet, according to a Ministry ofEducation circular, the presence of an AVS may not be regardedas a prerequisite for admission to school.

44. The status of AVSs, like all educational assistants, is uncertain.Training on autism for AVSs and persons on school welfare posts(EVSs) is either very limited or non-existent. On average onlythree hours are devoted to autism during training courses forAVSs. EVSs, for their part, do not have any compulsory training.Furthermore, the teachers concerned are usually not trained indealing with children with autism. However, dealing with childrenand adolescents suffering from autism requires even moreadjustment and training. Every teacher should therefore be giventraining on autism as all teachers are liable to have a child withautism in their class. Yet, this eventuality is not taken into accountat all.

45. The state has taken measures to remove the architecturalobstacles posed by school buildings and the technical obstaclesposed by school transport to make it easier for children and youngpeople with reduced mobility to attend school. However, nomeasure has been taken to remove the human obstacles posed bythe negative attitudes to be found at all levels of the schoolhierarchy (heads, teachers, support services, nursing staff, etc.).Yet, it is for the state to take steps to remove these humanobstacles.

46. Lastly, because of the lack of suitable places and facilities andits refusal to create and finance such classes in France, the French

state has helped to finance the schooling of children andadolescents with autism in specialised classes run by trainedprofessionals in Belgium.

c) The inadequacy of other types of provision

47. By placing a large number of children with autism in IMEs orday-hospital units (about 30% of those not attending mainstreamschools), France fails to fulfil its commitment under Article 151 ofthe Charter to provide "education ... in the framework of generalschemes wherever possible". The expression "wherever possible"entails forward-looking and flexible application, combined with the

resources necessary to ensure support within schools on a case-by-case basis.

48. These other types of provision are also hampered by the factthat the IMEs lack financial resources and there is a shortage of thespecialised staff needed to provide a genuine education or otherstaff to supervise children attending mainstream classes part timeor to increase the hours of schooling whenever possible on a case-by-case basis. As a result, the Act of 2005 provides for possiblealternating attendance of an IME and a mainstream school, orspecialised classes within an IME.

2. The Government


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49. The Government points out that AEH recognises that Frenchpositive law complies with the Charter, that France has madeefforts which have shown political goodwill with a view to tacklingthe problem of autism and that two and a half years after itslaunch, the second Autism Plan has achieved positive results interms of raising awareness, promoting new methods and creating

additional care places.

50. It considers that AEHs complaints are unfounded becausethere have been significant improvements in the education andvocational training of children and adults with autism. It has mademeasurable progress over a reasonable timeframe despite adifficult budgetary context, making considerable financial andpractical efforts to provide and promote education and vocationaltraining for people suffering from autism and other PDDs. Theseefforts have had an impact, as various independent authoritieshave acknowledged that significant progress has been made.

51. The Government is pursuing a proactive policy to providefacilities and support for people with autism. This policy hasresulted in successive autism plans for the periods 2005-2007and 2008-2010 and a consultation process is already under waywith the relevant associations to prepare a third plan, whoselaunch has already been announced. It will be prepared atinterministerial level under the auspices of the Secretary General ofthe Interdepartmental Disability Committee, with the regularinvolvement of all the stakeholders represented on the NationalAutism Committee (CNA). The focuses of this third plan will beearly detection, research on autism and the development ofsupport facilities designed to promote integration at school and at

work, together with support for family carers. It will contain targetsspread over the period from 2013 to 2015 and will be followed upregularly by the National Autism Committee. Particular attentionwill be paid to the governance of this plan, both at national leveland with regard to its implementation at regional level.

52. An exceptional effort has been made by France to deal withautism comprehensively. The 2008-2010 Autism Plan, which wasdrawn up in consultation with professionals and associations andconstructed around thirty key measures, has been a major stepforward in public policy for persons with autism and theirentourage. It has yielded tangible results, particularly thanks to the

considerable involvement of regional health agencies on theground. For instance, it has helped to improve knowledge aboutautism through a knowledge corpus, published in March 2010 anddesigned to be disseminated widely and provide material for thetraining of professionals. An interinstitutional, multidisciplinarynational training course was devised by the School for HigherPublic Health Studies (EHESP) to disseminate this knowledgecorpus and training began in September 2011.

53. The Autism Plan has also made it possible to improve supportfor patients and their families by providing additional funds fordiagnostic teams (5.6 million between 2009 and 2011). There has

also been an increase in the funds available to autism resource


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centres (CRAs), which have been established in all regions sincethe 2005-2007 plan.

54. The Autism Plan also made provision to earmark 170 millionfor the creation of 4 100 further places for persons with autism,comprising 2 100 places for children (1 500 in medico-educationalinstitutes [IMEs] and 600 in special education and home careservices [SESSADs]) and 2 000 places for adults (in specialresidential care establishments [MASs], residential careestablishments for adults with disabilities [FAMs] and newlycreated medical and social services for adults with disabilities[SAMSAHs]). This budget has been increased by 10% to fundexperiments with new types of care provision. To date, 52% of theplanned places have been set up, meaning that funding hasalready been allocated for 2 120 places in various establishmentsand services, amounting to a total of 78.5million. In the specialeducation and home care services (SESSADs), 422 places were setup to foster the independence of children with autism.

55. The Autism Plan also placed emphasis on developingbehavioural support methods. In this connection 28 test facilitiesand 417 additional places were authorised in three successivewaves in 2009, 2010 and 2011, for which the budget amounted to22.4 million. It should be pointed out that these figures relate toplaces earmarked specifically for cases of autism as part of aspecial effort to create places. It is also possible for non-specificplaces to be occupied by persons with autism, in which case theyare still provided with appropriate care. A study carried out in thecontext of the Autism Plan showed that 36% of the medico-socialestablishments for young people with disabilities surveyed which

receive persons with pervasive developmental disorders (PDDs)had special care facilities: 14% are entirely given over to childrenand adolescents with PDDs while 22% have a specific section forPDDs. Of the 64% of establishments which did not have specialfacilities, 16% stated that they had special earmarked funds (studyon the support facilities for people with pervasive developmentaldisorders (PDDs) in three French regions Prof. A. Baghdadli, C.Rattaz, Dr B. Ledsert, March 2011).

56. Furthermore, in September 2011, 20 375 pupils with autism ora PDD, or nearly 10% of the 210 395 pupils with a disability, had apersonal schooling plan (PPS) and attended a mainstream primary

or secondary school. This figure was in the region of 12 000 to13 000 in 2008-2009 so it can be seen that there has been anincrease in numbers of some 60% since that time (between 7 000and 8 000 additional children now attend school).

57. A review of the Autism Plan in 2011 highlighted the genuineprogress that had been made in relation to the situation in 2008.The momentum of the plan must continue and be applied inparticular to epidemiology, research and access to somatictreatment. It was with this goal in mind that autism was declaredthe National Cause of the Year in 2012.

a) The inadequacy of mainstream schooling


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58. The Government begins by pointing to the significant progressthat has been made in the area of mainstream schooling forchildren with autism.

59. Secondly, the Government considers that AEH misinterpretsArticle 15 of the Charter, which does not require, any more thannational law, that education for young people with disabilitiesshould be provided exclusively by mainstream schools. Article 15does not limit the Parties undertakings with regard to the socialintegration of young people with disabilities to school attendancealone. Provision in France for children and adolescents withdisabilities, including those with PDDs, is based on several sectors(health, medico-social services and schools). Schooling andeducational support are not the exclusive specific tasks of medico-social services and establishments and health care professionalsand establishments (like care, treatment, etc.).

60. In this connection, the law, which has entrusted schooling to

the state education service, makes provision for young people whocannot be catered for in mainstream schools to attend teachingunits, which are set up in co-operation between schools andmedico-social or health establishments. This arrangement sheds adifferent light on the exclusive schooling approach. Moreover, asstated previously, AEHs assertions do not prove that care in amedico-social or health establishment combined with appropriateschooling provided by a teaching unit does not meet the socialintegration objective set by Article 15 of the Charter.

61. Steering children towards facilities other than mainstreamschools forms part of the education and training arrangements in

special facilities referred to in Article L. 112-1 (paragraph 3) of theEducation Code. Not all children with autism can attendmainstream schools for reasons including, in particular, theseverity of their disability. It is important to bear in mind that theterms autism and pervasive developmental disorders (PDDs)cover an extremely varied range of medical and behaviouralconditions, which are combined with many related pathologies anddisorders (such as sleep disorders, psychiatric conditions, epilepsyand mental retardation).

62. As a result, France has established a system allowing forpersons with autisms medical, psychological and social treatment

while also providing for their schooling (Article L. 112-1, paragraph7).

63. To establish what is the most appropriate arrangement,decisions are taken, under judicial supervision where necessary, bythe Commission for the Rights and Self-Reliance of People withDisabilities (CDAPH), which is a branch of the dpartement forpersons with disabilities unit (MDPH), according to the procedureset out in Article L. 241-6 of the Social Welfare and Family Code.MDPHs are set up in the form of public interest groupings andoperate under the authority of the Chair of the dpartementcouncil. The CDAPH takes its decision in the light of the personal

schooling plan drawn up by the multidisciplinary team (Article D.351-7 of the Education Code). Article L. 112-2 of the Education


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Code states that a disabled child with disabilities personalschooling plan must be based on an assessment of their skills andneeds and the measures taken as part of [their education]programme.

64. AEH claims, but fails to demonstrate, that decisions to directchildren towards IMEs, CLISs or ULISs are taken by default, inthat they are the result of a lack of space or means of providing foryoung persons with autism directly in traditional school classes.

65. However, according to the Government, the procedure foradmission to IMEs, CLISs and ULISs is organised directly in thechilds interest, with the familys consent. If the family does notagree with a decision, it may appeal to the technical social securitydisputes tribunal, in accordance with the provisions of Article L.241-9 of the Social Welfare and Family Code. Lastly, such decisionsare regularly reviewed, which makes it possible to follow thedevelopment of childrens disabilities and plan, where appropriate,

for these children to be enrolled in a mainstream school. Thispossibility is moreover provided for by Articles D. 351-3 and D.351-4 of the Education Code, under which, even if pupils are sentto a special facility, they are also enrolled in a so-called referenceestablishment, to which they may return if, as described above,there is a favourable development in their disability.

b) Arrangements for enrolment in a mainstream school

66. AEH submits firstly that France makes no provision for childrenwith autism to be integrated because no measure has been takento remove the human obstacles posed by the negative attitudes tobe found at all levels of the school hierarchy. The Governmentconsiders that there is no precise objective evidence to back upthis assertion and it is contradicted by the entire system set up asa result of the legislation and regulations adopted in 2005, whoseaim was to help children with disabilities to integrate more fullyinto schools.

c) Co-ordination of the school and school health sectors

67. According to the Government, the proper implementation ofthe Law of 11 February 2005 on schooling depends on the ability ofthe specialised sector and state education establishments to co-operate and learn from one another.

68. Two texts of April 2009 are intended to guarantee that childrenwith a disability or an incapacitating health condition have a fulland uninterrupted school career whatever the nature and extent oftheir impairment:

- Decree No. 2009-378 of 2 April 2009 extends and generalises co-operation arrangements and practices between state educationservices and the medico-social sector with regard to the schoolingof pupils with disabilities and provides legal frameworks which areoften useful when it comes to allowing people from outside tointervene in schools, including:


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the legal framework for operations by social and medico-social services and establishments in schools with pupilscovered by a CDAPH notification of a joint mainstreamschool/medico-social sector project;

the legal framework for consultation between teachers andmedico-social professionals on appropriate educationalapproaches and methods;

the legal framework for the involvement of medico-socialprofessionals in the vocational training of state teachingstaff and in the teaching of civics, law and social studies.

- The interministerial decree of 2 April 2009 regulates the activitiesof state teachers with children and adolescents being cared for bymedico-social services by organising the teaching units providedfor by the Education Code to provide schooling for young peoplewith disabilities who cannot attend a mainstream school.

69. This co-operation, which has no impact on the distribution ofthe roles of each sector, helps pupils to follow their own paths,suited to their own needs and adjusted accordingly throughouttheir schooling. In this way, pupils personal schooling plans andthe individual care plans established by the medico-socialestablishment are co-ordinated and a premium is placed on the

joint management of medico-social care and mainstreamschooling.

70. The Government considers the allegation of a lack of co-operation between the state education authorities and the medico-social sector with regard to autism to be unfounded. The secondAutism Plan included two specific activities designed to meet theneed for training in co-operation:

- Measure No. 5, whose aim was to Set up training courses fortrainers. These training courses, which had an interdisciplinaryfocus and were aimed therefore at various training networks in theeducational, medico-social and health sectors, were heldthroughout the country in 2011/2012 with the aim of disseminatingthe knowledge corpus throughout these networks.

- Measure No. 12, whose aim was to Back up the work of autismresource centres so as to provide a more consistent service forusers. This measure resulted in a circular of 27 July 2010, whichprovided that one of the main tasks of autism resource centres andassociated hospital teams was to promote interdisciplinary training.

d) The alleged lack of places and specialised staff inspecialised facilities

71. With regard to medico-social establishments, the 2008-2012programme for the creation of life-long care places for people withdisabilities provides for the creation of over 50 000 places (39 000

places for adults, including 10 000 in ESATs, and 12 000 forchildren). Bearing in mind the time required to implement thesemeasures, the places will be opened progressively over the period


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up to 2016. This exceptional project, to which France is allocating1.45 billion, should not detract from the major effort that hasalready been made to adapt the facilities on offer, reflected inparticular by a major increase in the number of places offered inservices (10 000 places more between 2006 and 2010), fosteringan increase in mainstream schooling.

72. In response to the unsubstantiated allegation of staffshortages, the Government points out that the funding for all thesenew places obviously also covers the cost of the additionalspecialised staff required.73. Furthermore, it is said that the frequent lack of co-ordinationbetween day-hospital units and state education is the result of ashortage of staff in dpartement for persons with disabilities units(MDPHs) and little time to study files. MDPHs, however, havenothing to do with decisions to send persons to day-hospital unitsand this betrays a certain degree of ignorance on the part of AEHabout the organisation of the system whose failings it attemptsnonetheless to pinpoint.

B. Assessment of the Committee

Case-law of the Committee

74. The Committee must make an assessment of the conformity ofthe situation brought before it, based on the one hand on thereasons for which Article 15 was included in the Charter, whichdetermines the normative content of the provision, and on theother, on its decision of 4 November 2003 on the merits of thecomplaint Autism-Europe v. France (No. 13/2002), in which itfound a violation by France of Article 151 (and Article 171)

whether alone or read in conjunction with Article E, followingallegations of a similar nature to those made in the context of thiscomplaint.

75. Firstly, the Committee recalls that Article 15 reflects and takesforward the shift in values that has occurred in Europe with regardto people with disabilities, in which ideas of welfare andsegregation have given way to an approach centred on inclusionand choice (Conclusions 2003, General Introduction, p. 10). As itstated in its decision of 4 November 2003 on the merits of theAutism-Europe v. France complaint, the underlying vision of Article15 is one of equal citizenship for persons with disabilities and,

fittingly therefore, the primary rights are those of independence,social integration and participation in the life of the community.Securing a right to education for children and others withdisabilities plays a patently important role in advancing thesecitizenship rights. This explains why education is now specificallymentioned in the revised Article 15 and why such an emphasis isplaced on achieving that education in the framework of generalschemes, wherever possible. It should be noted that Article 15applies to all persons with disabilities regardless of the nature andorigin of their disability and irrespective of their age. It thus clearlycovers both children and adults with autism (Autism-Europe v.France, decision on the merits of 4 November 2003 cited above,

48).


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76. Secondly, the Committee recalls that in the aforementioneddecision it found that France violated Article 151 for the followingreasons:- the restrictive definition of autism used in French officialdocuments;- the insufficient statistics to measure the progress that had

nonetheless been made over time;- the proportion of children with autism being educated in eithermainstream or special schools, which was still extremely low andsignificantly lower than that of other children, whether or nothaving a disability (Autism-Europe v. France, decision on themerits of 4 November 2003, 54).

77. In its follow-up to the decision of 4 November 2003 in thecontext of its examination of the national reports on the applicationof the Charter, the Committee found, both for the reference periodfrom 1 January 2005 to 31 December 2006 (Conclusions 2008,France, Article 151) and for that from 1 January 2007 to 31

December 2010 (Conclusions 2012, France, Article 151), that thesituation in France was not in conformity with Article 151 of theCharter because it had not been established that people withautism were guaranteed effective equal access to (mainstream andspecial) education.

78. In relation to the current complaint, the Committee reiteratesthat Article 151 of the Charter makes it an obligation for StatesParties to provide education for persons with disabilities, togetherwith vocational guidance and training, in one or other of the pillarsof the education system, in other words mainstream or specialschools. It adds that the priority to be given to education in

mainstream establishments, which is referred to explicitly in thearticle, is subject to a conditionality clause, which if interpreted asit ordinarily would be and with due regard for the context andpurpose of the provision, indicates to the public authorities that inorder to secure the independence, social integration andparticipation in the life of the community of persons withdisabilities through their education, they must take account of thetype of disability concerned, how serious it is and a variety ofindividual circumstances to be examined on a case-by-case basis.Consequently, Article 151 of the Charter does not leave StatesParties a wide margin of appreciation when it comes to choosingthe type of school in which they will promote the independence,

integration and participation of persons with disabilities, as thismust clearly be a mainstream school.

79. In its decision of 2003 on the merits of the Autism-Europe v.France complaint, the Committee held that when the achievementof one of the rights protected by the Charter is exceptionallycomplex and particularly expensive to resolve, the measures takenby a State to achieve the Charter's objectives must meet thefollowing three criteria: "(i) a reasonable timeframe, (ii)measurable progress and (iii) financing consistent with themaximum use of available resources" (Autism-Europe v. France,cited above, 53). The Committee reiterated this requirement in

decisions on subsequent complaints, particularly those concerningthe rights of people with disabilities (Mental Disability Advocacy


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Center (MDAC) v. Bulgaria, Complaint No. 41/2007, decision onthe merits of 3 June 2008, 39; FIDH v. Belgium, Complaint No.62/2010, decision on the merits of 21 March 2012, 113).

Application of the case-law to this case

The priority given to mainstream schools for the education ofchildren and adolescents with autism

80. The Committee takes note of the definition of autism given byWHO (in 20, above), which regards it not as a temporary disease,which could therefore be cured, but as a disability. If it is assumedthat the stable and permanent nature of all disabilities (whethermental, cognitive as is the case here or somatic) means thatthe person concerned must be educated in citizenship, then humanassistance must be arranged for all or part of their schooling. Suchhuman assistance is often the prerequisite for children oradolescents with autism to take full advantage of their schoolingand progress with and among other children and adolescents.

81. The Committee would point out that in general, states have awide margin of appreciation in the way in which they implementthe Charter (European Council of Police Trade Unions (CESP) v.Portugal, Complaint No. 37/2006, decision on the merits of3 December 2007, 14). However, where the persons affected bythe priority to be given to mainstream schools, as the means mostliable of securing the independence, integration and participation ofpersons with disabilities, are children and adolescents with autism,Article 151 implies that states are required to provide the humanassistance needed for the school career of the persons concerned.The margin of appreciation applies only to the means that statesdeem most appropriate to ensure that this assistance is provided,bearing in mind the cultural, political or financial circumstances inwhich their education system operates (see, mutatis mutandis,ECHR Grand Chamber judgment of 22 May 2012, Scoppolav. Italy,application No. 126/05, 83). However, this is subject to theprovision that, at all events, the choices made and the meansadopted are not of a nature or are not applied in a way thatdeprives the established right of its effectiveness and turns it into apurely theoretical right (European Federation of NationalOrganisations working with the Homeless (FEANTSA) v. France,Complaint No. 39/2006, decision on the merits of 5 December

2007, 55).

82. The Committee notes that France recognises autism as adisability under the laws of 1975 and 1996, which are still in forcetoday. It also notes that under this legislation, priority is given toeducating children and adolescents with autism in mainstreamschools. For this purpose, in 2005, the law established the right forall children with disabilities including those with autism to beenrolled in a mainstream school, along with alternatives such asindividual schooling in mainstream classes through the assistanceof an individual school assistant (AVSi). Provision is also made forteaching in separate classes, which are given at mainstream

schools and run by a collective school assistant (AVSco). Thesecollective classes are known as school integration classes (classes


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d'inclusion scolaire- CLIS) at the infants' and primary levels andlocal school integration units (Units localises pour l'inclusionscolaire- ULIS) at lower and upper secondary level.

83. However, the Committee would point out that according to thefigures from Government sources which are given in the complaintand the complainant organisations response, the number ofchildren with autism in school decreases significantly at each stageof compulsory schooling: 87% of children with autism attendprimary school, 11% lower secondary school and 1.2% uppersecondary school. At the very last level of schooling, for the 2011-2012 academic year, the figure in absolute terms was 553 pupils.

84. The Committee notes that the Government does not disputethese figures and argues that not all children and adolescents withautism can be taught in mainstream schools because of theseverity of their disability. In response to this argument, AEHsubmits that there is a considerable difference between all

children and the figure of only 20% of children and adolescentswith autism who are taught in mainstream schools according toGovernment sources, whereas according to the same sources, only30% of persons with autism have intellectual impairments.

85. The Committee considers assistance at school a particularlyimportant means of being able to keep children and adolescentswith autism in mainstream schools, although it acknowledges thatthis method of promoting social integration through education isnot the only possible way of achieving the aim of sending childrenwith autism to mainstream schools.

86. The Committee notes that AEH alleges that there are severalshortcomings in the AVS system and its functioning in practice andthat this is not disputed by the Government. These include, inparticular, the number of AVSs actually appointed by the Ministryof Education, the lack of hours actually given over to theparticipation of AVSs in class, who, moreover, find it difficult togain respect, the unjustified refusal of mainstream schools to takein children with autism unless they are accompanied by an AVS(despite a circular from the Ministry of Education stating that thepresence of an AVS could not be considered a legitimaterequirement for admission to school) and gaps in AVSs training onautism.

87. The Committee takes particular note of the complainantorganisations allegation, which has not been contradicted by theGovernment either, that AVSs were regularly recruited by theMinistry of Education from the 2010-2011 academic year onwardson insecure employment contracts, particularly single integrationcontracts (CUIs). This clearly undermines the substance of thework of assisting children and adolescents with disabilities and, inthis specific case, with autism.

88. The Committee considers that the alleged shortcomings,particularly the shortage of AVSs and the failure to provide a

continuous service throughout the school life of the childrenconcerned, are such as to hamper the school careers of children


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and adolescents with autism in mainstream schools and amount toa process of driving such pupils away from mainstream schools.

89. As to the provision of schooling for children and adolescentswith autism through the establishment of separate classes forchildren and adolescents with disabilities inside and within theframework of infants schools (CLISs) and secondary schools(ULISs), the Committee notes that the Government fails to reply toAEHs allegations that this form of schooling suffers from a highnumber of shortcomings.

90. The Committee would highlight the following allegations inparticular: the lack of opportunities for special classes to integratewith mainstream classes; the scarcity of joint lessons withmainstream classes; the fact that children with autism do not havetheir recreational and lunch breaks at the same time as otherchildren in the school; the isolation of classrooms for specialclasses from other buildings and overcrowding of these classes; the

fact that children with all types of disability are mixed together inspecial classes; a high rotation of teaching teams, conduciveneither to regular teaching nor to the consistent implementation ofsuitable teaching programmes; the lack of specific training forteachers about autism, with the result both that they are reluctantto allow children with autism to join their class and that unsuitableteaching methods may be adopted and; the fact that teachers whoare concerned about the proper integration of children andadolescents with autism are left to arrange their own training onautism.

91. The Committee is aware that the alleged shortcomings are not

always encountered simultaneously and that the situation variesdepending on the specific circumstances of the classes attended bychildren or adolescents with autism. It considers, however, that thesituations described, which are not disputed by the Government,are incompatible with schools fundamental role, which is to help allpupils go as far as they are able, whatever their possibilities, andto find their own way and achieve self-fulfilment in accordance withtheir capacities and aspirations. The Committee considers thatArticle 151 of the Charter implies that schools have thisfundamental role because it views them as a means to helppersons with disabilities including children and adolescents withautism to achieve the goal of independence, social integration and

participation in the life of the community.

92. The Committee acknowledges that the learning difficultieswhich pupils with autism often experience throughout their schoolcareers frequently prevent them from obtaining the qualificationthat they would usually acquire by the end of their compulsoryschooling. However, the legislation states that all pupils who havenot acquired the required level of instruction by the age of 16 areentitled to continue at school. According to AEHs allegations, whichare not disputed by the Government, in practice, children andadolescents with disabilities are denied this right because of thelack of available places in schools. According to figures provided by

the complainant organisation, which have not been refuted by theGovernment, 90% of young persons with autism between the age


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of 16 and 19 do not continue to attend school. Yet, thefundamental goals of schools could be better served in the case ofchildren and adolescents with autism if they could be allowed tocontinue attending school beyond the age of 16, which is the ageat which compulsory schooling ends in France.

93. The Committee considers that the denial, in practice, of theright of children and adolescents with autism to continue attendingschool beyond compulsory school age despite the f

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