CCPR/C/39/D/306/1988

thirty-pinth session)

Submitted by: J. G. (represented by counsel)

Alleged victim: The author

State party concerned: The Netherlands

Date of communication: 2 June 1988 (date of initial letter)

The Human Righta Committees, established under article 28 of the International

Ccvenant on Civil and Political Rights,

Meating on 25 July 1990,

Adopts the following:

; Recision on admissibility

1. The author of the communication is J. G., a Dutch citisen residing in

Rotterdam, the Netherlands. He claims to be a victim of a violation by the

Government. of the Netherlands of article 26 of the International Covenant on Civil

and Political Rights. He is represented by counsel.

The background

2.1 The author, who was born on 1 January 1918, suffers from a physica} handicap.

On 6 January 1983, after his 65th birthday, he requested admission into subsidised,

purpose-built housing, referred to as ‘Fokushouses" (cluster dwellings), which are

Gesigned to enable their occupants to live, to the extent possible, as

non~handicapped persons. The Financial Aid Scheme for the Accommodation of the

Disabled lays down the specifications for State-subsidised dwellings. Eligibility

for admission into such housing is governed by Section 57 of the General

Disablement BeneZits Act (AAW) of 11 December 1975, which provides that applicants

must be handicapped persons between the ayes of 18 and 65. Dwellers of

“Fokushouses" receive special assistance called ADL (activities of daily life),

intended to contribute to the maintenance, recovery or promotion of the

keneficiary's fitness for work, to provide for medical or surgical facilities as

well as other measures destined to improve the beae. iciary's living conditions.

2.2 Sy letter of 7 February 1983, the Joint Medical Service (Gemeenschappelijke

Mediuche Diensten, GMD) informed the Ministry of Housing chat it would render a

negative advice on ADL assistance with respect to a number of persons including the

author, who had just become 65 years of age. This position way confirmed by lettec

dated 2¢ Yebruary 1983 from the ministry of Welfare and Health to the GMD. Thus,

altbough he was permitted to move into a "Fokushouse", he was denied the ADL

assistance granted to other persons who moved into the Fokushouse prior to their

65*h birthday.

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2.3. Ae to the requirement of exhaustion of domestic remedies, the author affirms

that available means of redrese have either been or would be ineffective. He

acknowledges that since ADL assistance is provided pursuant to Section 57 of the

AAW, remedies must in principle be pursued in compliance with the regulations of

the AAW, that is by appeal to the Board of Appeal (Raad van Beroep) and the Central

Board of Appeals (Centrale Raad van Beroep). He adds, however, that this procedure

was not followed in his case because the GMO hed informed the Ministry of Housing

that it would render a negative advice on ADL. This position was confirmed by

letter from the Ministry of Welfare and Health to the GMD, reaffirming that persons

aged 65 and above cannot be granted ADL assistance if they move into purpose-built

housing. This means, the author contends, that because the regulations under the

AAW provide for an age limit of 65 years, persons aged 65 and above who request

assistance pursuant to the AAW would be faced with a nagative decision. ‘The State

party's practice on eligibility for accommodation in purpose-built housing has not

changed since the amendments to the Financial Aid Scheme for the Accommodation of

the Disabled, according to the author, as shown, by a letter dated 19 February 1990

from the Secretary of State for Social Affairs to the municipality of Veendem,

reaffirming the position that individuals older than 65 were not eligible for ADL

assistance. Moreover, during pariiamentary debates in the Second Chamber of the

Dutch Parliament towards the end of 1989, the Secretary of State is said to have

promised that a decision on whether ADL assiatance could be made available for

handicapped persons older than 65 yeare would be made before 1 January 1992. Thus,

at preseut this possibility does not exist.

2.4 On the basis of these considerations, the author also applied for assistance

pursuant to another scheme, the General Assistance Act (ABW), because the ABW does

not contain an age limit for applicants and because the procedure under the ABW

operates ag a form of “last resort" wherever other regulations do not provide for

assistance. When the municipality of Rotterdam, on 15 February 1983, rejected his

ABW application, the author, on 22 February 1983, requested the local (city)

government to intercede with the municipal authorities. His request was rejected

on 13 September 1983. On 11 October 1983, he filed an appeal with the Exesutive

Council of the Province of South-Holland (College van Gedeputeerde Staten van de

Provincie Zuid-Holland), which was dismissed on 20 March 19865. His subsequent

appeal to the Council of State (Raad van State), filed on 12 April 1985, was

Gismissed on 28 April 1985.

The complaint

3. The author claime that the refugal to grant him ADL assistance constitutes

Giscrimination on account of his age. He pointe out that for those individuals who

move into "cluster dwellings" before they have reached the age of 65 and whose

expenses sre ceimbursed on the bagis of the AAW, ADL assistance continues after the

age of 65. If an individual moves into purpose-built housing after the age of 65,

as he did, or if he reaches the top of the waiting list after the age of 65, that

person is excluded because of his age from reimbursement on the basis of the AAW.

The author is of the opinion that this differentiation between handicapped persons

because of their age is unreasonable and not based on objective criteria and thus

constitutes discrimination prohibited under article 26 of the Covenant.

The State party's observations

4.1 The State party contends that the communication should be declared

inadmissible because the author failed to bring his case before any court competent

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to hear complaints concerning the application of the AAW. It reiterater that any

person who considera to have been unjustly denied assistance under the AAW may

requeat a ruling by the competent industrial insurance board. From there appeals

to the courts competent in social security matters would be possible, and in the

proceedings before these courts, applicants could directly invoke article 26 of the

Covenant. The court of first instance would be the Board of Appeal, with the

poseibility of an appeal to the Central Board of Appeal. The fact that the author

did appeal under the terma of the ABW to the municipal authorities and the Council

of State does not, in the State party's opinion, change the situation, as his

complaint to the Committee does not relate to the ABW.

4.2 The State party further explains the procedure which would have to be followed

by the competent organs under the AAW and contenda that these would indeed

constitute effective remedies within the meaning of the Optional Protocol. ‘Thus,

the Board of Appeal would not be bound by the negative advice from the Ministry of

Welfare, Health and Cultural Affairs (as contained in the letter of

24 February 1983) or from the GMD (as contained in the letter of 7 February 1983).

Any judgment of the Board of Appeal would be determined by the relevant statutory

provisions and the relevant provisions of public international law) it would not be

required to take into account any recommendation which it considered to be

incompatible with these provisions. In this context, the State party recalls that

the letter of 24 February 1983 is devoid of egal significance, as it does not

emanate from a body with any competence to ect in the framework of the AAW or the

Financial Aid Scheme for the Accommodation of the Disabled,

Iagues and procesdings before the Committee

5.1 Before considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide

whether or not it is admissible under the Optional Proteaol to the Covenant.

5.2 The Committee has ascertained, as it is required to do under article 5,

paragraph 2 (a), of the Optional Protocol, that the same matter is not being

examined under another procedure of international investigation or settlement.

5.3 Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee

from considering any communication from an individual who has failed to exhaust all

available domestic remedies. This is a general rule, which applies unless the

remedies are unreasonably prolonged, or the author of a communication has

convincingly demonstrated that domestic remedies are not effective, i.e. do not

have any prospect of success.

5.4 On the basis of the information before the Committee, there are no

circumstances which would absolve the author from attempting to pursue all domestic

remedies, including those available pursuant to the AAW, namely an appeal to the

competent authorities and courts. While the applicable rules and cegulations

resort to objective criteria in the determination of the beneficlaries of ADL

assistance. the State party has shown that the competent courts would not only not

be bound by negative recommendations from the administrative authorities in respect

of ADL assistance to the author, but that they could set aside the terms of the

applicable regulations if they considered them to be in conflict with relevant.

provisions of international law. The purpose of article 5, paragraph 2 (b), is,

dnater alia, to direct possible victims of violations o* the provisions of the

Covenant to seek, in the first place, satisfaction from the competent State party

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authorities and, at the same time, to enable States parties to examine, on the

basis of individual complaints, the implementation, within their territory and by

their organs, of the provisions of the Covenant and, if necessary, remedy the

violations occurring, before the Committee is seised of the matter. In the light

of the above considerations, and having regard to article 5, paragraph 2 (b), of

the Optional Protocol, the Committee considers that the iuthor has not exhausted

available domestic remedies.

6. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 5, paragraph 2 (b),

of the Optional Protocol)

(b) That this decision shall be transmitved to the State party, the author

and his counsel.

(Done in English, French, Ruesian and Spanish, the English text being the original

version. }

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