Date when decision was rendered: 18.1.2005

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 89; 1593/3/02

Reference to source

Registry of the Supreme Administrative Court

Högsta förvaltningsdomstolens registratorskontor

Korkeimman hallinto-oikeuden kirjaamo

Date of publication:

Subject

disabled persons, equality, social rights, non-discrimination,
handikappade, jämlikhet, sociala rättigheter, icke-diskriminering,
vammaiset, tasa-arvo, sosiaaliset oikeudet, syrjintäkielto,

Relevant legal provisions

sections 2, 13, 65 and 90 of the Local Government Act; section 17-2 of the Social Welfare Act, sections 3 and 9-1 of the Act on services for persons with disabilities; section 17 of the Decree on services for persons with disabilities; sections 6, 19-3 and 22 of the Constitution Act

= kommunallag 2 §, 13 §, 65 § och 90 §; socialvårdslag 17 § 2 mom., lag om service och stöd på grund av handikapp 3 § och 9 § 1 mom.; förordning om service och stöd på grund av handikapp 17 §; grundlagen 6 §, 19 § 3 mom. och 22 §

= kuntalaki 2 §, 13 § 65 § ja 90 §; sosiaalihuoltolaki 17 § 2 mom.; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu laki 3 § ja 9 § 1 mom.; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 17 §; perustuslaki 6 §, 19 § 3 mom. ja 22 §.

Abstract

A municipal social welfare board had in its budget proposal suggested the allocation of funds for the purpose of granting certain allowances under the Act on services for persons with disabilities.The municipal executive board had decided to delete these funds from the budget proposal.The municipal council adopted the budget as proposed by the executive board.As a consequence, during that budget year no funds could be allocated under the Act on services for persons with disabilities for the reimbursement of a car needed for the transportation of a disabled person.The administrative court took note of the Constitution Act and the duty of public authorities to guarantee adequate social, health and medical services for everyone (section 19-3) and the observance of basic rights and liberties and human rights (section 22).It also referred to the Local Government Act which prescribes the duty of local authorities to perfom the functions laid down for them by law as well as their duty to compile a budget which safeguards the preconditions for performing these functions.

Under the Act on services for persons with disabilities, the local authorities have a duty to find out as to what extent services are needed.The administrative court ruled that by adopting the budget the municipal council had agreed to budgetary goals and funds which did not safeguard, as required by the Local Government Act, the preconditions for performing the functions assigned to the municipality under the Act on services for persons with disabilities.The decision of the municipal council was therefore contrary to law.The majority of the Supreme Administrative Court agreed with the administrative court.In its decision, the Court also referred to the principle of equality in section 6 of the Constitution Act.Within the framework of the funds allocated in the budget, a municipal social welfare board must be able to consider each individual need for services for the disabled and to provide services in a priority order which is in accordance with the constitutional requirement that no one shall, without an acceptable reason, be treated differently on the ground of health, disability or other reason that concerns his or her person.

26.5.2006 / 16.1.2018 / RHANSKI

Date when decision was rendered: 27.11.2000

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 3118; 794/3/99

Reference to source

KHO 2000:63.

Yearbook of the Supreme Administrative Court 2000 July-December

Högsta förvaltningsdomstolens årsbok 2000 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2000 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2001

Pages: pp. 99-110

Subject

disabled persons, social rights, right to social, health and medical services, equality, non-discrimination,
handikappade, sociala rättigheter, rätt till social- hälsovårds- och sjukvårdstjänster, jämlikhet, icke-diskriminering,
vammaiset, sosiaaliset oikeudet, oikeus sosiaali- ja terveyspalveluihin, tasa-arvo, syrjintäkielto,

Relevant legal provisions

sections 1 and 3 of the Act on the Status and Rights of Patients; sections 14-1-2 and 14-3 of the Primary Health Care Act; sections 6, 19 and 22 of the Constitution Act

= lag om patientens ställning och rättigheter 1 § och 3 §; folkhälsolagen 14 § 1 mom. 2 punkten och 14 § 3 mom.; grundlagen 6 §, 19 § och 22 §

= laki potilaan asemasta ja oikeuksista 1 § ja 3 §; kansanterveyslaki 14 § 1 mom. 2 kohta ja 14 § 3 mom.; perustuslaki 6 §, 19 § ja 22 §.

Abstract

A municipal senior physician had decided to order to X, as part of the medical treatment provided by the municipality, one or two pairs of orthopaedic shoes per year.X had applied for three pairs of orthopaedic shoes.Because of the nature of her disability X wore out several pairs of special shoes per year.This was confirmed by various expert reports.

The county administrative court handled the case as an administrative dispute and dismissed the claim.The court held that the municipality had no specific legal obligation to provide orthopaedic appliances for everyone in need of such appliances and that the decisions on granting orthopaedic appliances are made within the framework of the budgetary means allocated for the social and health services in the municipality.

The Supreme Administrative Court did not agree with the lower court.In its decision, the Supreme Administrative Court referred, among other provisions, to the Primary Health Care Act as well as to section 19 of the Constitution Act, concerning the duty of the public authorities to guarantee for everyone adequate social, health and medical services, and to section 6 of the Constitution Act, concerning equality before the law and the prohibition of discrimination.The Court ruled that the municipality had, under public law, the obligation to provide X with the necessary appliances for medical rehabilitation.In the Court's opinion, the municipality had not shown that it was unable to provide X with the orthopaedic appliances she needed, within the framework of the budgetary funds allocated for social and health services.The municipality had also failed to show that there would have been reasons, acceptable under section 6 of the Constitution Act, to give priority to other health or medical services to the effect that it was not possible to meet with X's individual needs.The Supreme Administrative Court quashed the decision of the county administrative court and ordered the municipality to provide X with orthopaedic shoes in accordance with her medically assessed needs.

31.5.2006 / 2.6.2006 / RHANSKI

Date when decision was rendered: 19.6.2006

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1572; 2997/3/04

Reference to source

KHO 2006:38.

Yearbook of the Supreme Administrative Court 2006 January-June

Högsta förvaltningsdomstolens årsbok 2006 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2006 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 612-620

Subject

disabled persons, social rights, right to work, right to social, health and medical services,
handikappade, sociala rättigheter, rätt till arbete, rätt till social-, hälsovårds- och sjukvårdstjänster,
vammaiset, sosiaaliset oikeudet, oikeus työhön, oikeus sosiaali- ja terveyspalveluihin,

Relevant legal provisions

sections 1 and 8 of the Act on services for persons with disabilities; sections 4, 5 and 6 of the Decree on services for persons with disabilities; sections 18 and 19 of the Constitution Act

= lag om service och stöd på grund av handikapp 1 § och 8 §; förordning om service och stöd på grund av handikapp 4 §, 5 § och 6 §; grundlagen 18 § och 19 §

= vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu laki 1 § ja 8 §; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 4 §, 5 § ja 6 §; perustuslaki 18 § ja 19 §.

Abstract

According to the Act on services for persons with disabilities, a municipality shall arrange transportation services for a severely handicapped person if such services, because of the nature of the person's disability, are necessary in order for the person to manage in his or her daily life.The Decree on services for persons with disabilities prescribes that transportation services include transport to and from work within the person's municipality of residence or a neighbouring municipality.The municipality can arrange the transport or compensate to the disabled person any reasonable transportation costs.

X, who was severely handicapped, lived in the city of Järvenpää and worked in the city of Vantaa.The distance between his home and his workplace was 22 kilometres.The social welfare board at the city of Järvenpää had decided that transportation services under the Act and Decree on services for persons with disabilities are arranged, besides within the city itself, only to three neighbouring municipalities across the city boundary and to one other municipality situated nearby but not sharing a boundary with Järvenpää.The city of Vantaa was not included in this group.Accordingly, the city of Järvenpää agreed to compensate X's transportation costs from his home to the boundary of the city of Vantaa whereas X himself paid the expenses of transportation from the boundary to his workplace.X claimed before an administrative court that the city should compensate the total cost of transport from his home to his workplace.The court decided the case in X's favour, but the social welfare board appealed against the decision to the Supreme Administrative Court.

In its decision, the Supreme Administrative Court referred to sections 18 (the right to work) and 19 (the right to adequate social, health and medical services) of the Constitution Act and the relevant provisions of the Act and Decree on services for people with disabilities.The Court noted that in administrative and court practice pertaining to services for persons with disabilities it is usually held that a "neighbouring municipality" is a municipality sharing a boundary with the municipality of residence.However, although a person can usually run his or her daily errands in the municipality of residence or a neighbouring municipality, this does not always apply to a person's work.Therefore, when compensating the costs of transport to and from work, a municipality further away than across the boundary of the municipality of residence can be regarded as a neighbouring municipality provided that the transport costs are reasonable.The Court ruled that a severely handicapped person's right to transportation services cannot be limited on the ground that a municipality has designated the municipalities it regards as neighbouring ones.In this case, X's municipality of residence, Järvenpää, is situated close to the area surrounding the capital of Helsinki, and it is quite common that people living in Järvenpää work in the metropolitan area in which the city of Vantaa is also included.Moreover, X's way to work (22 kilometres) is not exceptionally long in the metropolitan area.The Supreme Administrative Court concluded that X's travel to and from work is to be regarded as transport to and within a neighbouring municipality as prescribed in the Decree on services for people with disabilities.Under the Act on services for people with disabilities, the city of Järvenpää therefore has a duty to arrange X's transport to and from his workplace.

28.6.2006 / 8.9.2009 / RHANSKI

Date when decision was rendered: 19.6.2006

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1574; 2522/3/04

Reference to source

KHO 2006:40.

Yearbook of the Supreme Administrative Court 2006 January-June

Högsta förvaltningsdomstolens årsbok 2006 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2006 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 625-632

Subject

disabled persons, social rights, right to work, right to social, health and medical services,
handikappade, sociala rättigheter, rätt till arbete, rätt till social-, hälsovårds- och sjukvårdstjänster,
vammaiset, sosiaaliset oikeudet, oikeus työhön, oikeus sosiaali- ja terveyspalveluihin,

Relevant legal provisions

sections 1 and 8 of the Act on services for persons with disabilities; sections 4, 5 and 6 of the Decree on services for persons with disabilities; sections 18 and 19 of the Constitution Act

= lag om service och stöd på grund av handikapp 1 § och 8 §; förordning om service och stöd på grund av handikapp 4 §, 5 § och 6 §; grundlagen 18 § och 19 §

= vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu laki 1 § ja 8 §; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 4 §, 5 § ja 6 §; perustuslaki 18 § ja 19 §.

Abstract

According to the Act on services for persons with disabilities, a municipality shall arrange transportation services for a severely handicapped person if such services, because of the nature of the person's disability, are necessary in order for the person to manage in his or her daily life.The Decree on services for persons with disabilities prescribes that transportation services include transport to and from work within the person's municipality of residence or a neighbouring municipality.The municipality can arrange the transport or compensate to the disabled person any reasonable transportation costs.

P, who was severely handicapped, lived in the capital city of Helsinki and worked in the city of Kerava.The distance between her home and her workplace was some 30 kilometres.The social welfare board at the city of Helsinki had decided that transportation services under the Act and Decree on services for persons with disabilities are arranged, besides within the city itself, to four neighbouring municipalities all within the metropolitan area.The city of Kerava was not included in this group.Therefore, the city of Helsinki agreed to compensate P's transportation costs from her home to the boundary of the city of Kerava only.P claimed before an administrative court that the city of Helsinki should compensate the total cost of transport from her home to her workplace.The administrative court rejected P's claim on the ground that because of its geographical distance from Helsinki, Kerava could not be regarded as a neighbouring municipality as prescribed in the Decree on services for persons with disabilities.P appealed against the decision to the Supreme Administrative Court.

In its decision, the Supreme Administrative Court referred to section 18 (the right to work) and 19 (the right to adequate social, health and medical services) of the Constitution Act and the relevant provisions of the Act and Decree on services for people with disabilities.The Court noted that in administrative and court practice pertaining to services for persons with disabilities it is usually held that a "neighbouring municipality" is a municipality sharing a boundary with the municipality of residence.However, although a person can usually run his or her daily errands in the municipality of residence or a neighbouring municipality, this does not always apply to a person's work.Therefore, when compensating the costs of transport to and from work, a municipality further away that across the boundary of the municipality of residence can be regarded as a neighbouring municipality provided that the transport costs are reasonable.The Court ruled that a severely handicapped person's right to transportation services cannot be limited on the ground that a municipality has designated the municipalities it regards as neighbouring ones.

The Supreme Administrative Court pointed out that it is ordinary that people living in Helsinki work in municipalities surrounding the metropolitan area.P's way to work (32-33 kilometres) is not exceptionally long in the metropolitan area.The Court concluded that P's travel to and from work is to be regarded as transport to and within a neighbouring municipality as prescribed in the Decree on services for people with disabilities.Under the Act on services for people with disabilities, the city of Helsinki therefore has a duty to arrange P's transport to and from her workplace.The Supreme Administrative Court quashed the decisions of the administrative court and the social welfare board and referred the matter back to the board for a new consideration.

28.6.2006 / 8.9.2009 / RHANSKI

Date when decision was rendered: 21.8.2008

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2019; 3699/3/07

Reference to source

KHO 2008:61.

Yearbook of the Supreme Administrative Court 2008 July-December

Högsta förvaltningsdomstolens årsbok 2008 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2008 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: pp. 254-262

Subject

disabled persons, equality, children,
handikappade, jämlikhet, barn,
vammaiset, tasa-arvo, lapset,

Relevant legal provisions

sections 1, 9-2, 10 and 20 of the Act on services for persons with disabilities; sections 12 and 13 of the Decree on services for persons with disabilities; sections 6 and 22 of the Constitution Act

= lag om service och stöd på grund av handikapp 1 §, 9 § 2 mom., 10 § och 20 §; förordning om service och stöd på grund av handikapp 12 § och 13 §; grundlagen 6 § och 22 §

= laki vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista 1 §, 9 § 2 mom., 10 § ja 20 §; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 12 § ja 13 §; perustuslaki 6 § ja 22 §

Abstract

X was a severely disabled four-year-old child, who needed constant supervision.The family lived in a house with a big yard.The parents had built a fence around the yard in order to make it easier to keep an eye on X while he was out in the yard.They applied for reimbursement of the building costs from the municipality under the Act on services for persons with disabilities.According to the Act, a municipality shall compensate any reasonable costs incurred by renovations which are made to the home of a person with severe disabilities and are necessary in order for that person to manage in his or her everyday life.Both the municipal social welfare board and, after the parents' appeal, the administrative court were of the opinion that building a fence around the yard could not be regarded as a necessary renovation under the Act.The Supreme Administrative Court, however, ruled in favour of the parents.

The Supreme Administrative Court pointed out that the Act on services for persons with disabilities (380/1987) had been enacted and came into force before the constitutional rights reform in 1995 which, among other things, extended the protection of fundamental rights to effective equality and social rights and which also took into account the rights of the child.In the Court's view, the relevant constitutional provisions must be kept in mind when applying the Act on services for persons with disabilities.The Court then continued that the Act does not specify the various types of reimbursable renovations.These are defined in section 12 of the Decree on services for persons with disabilities.However, the Act does not contain any explicit provision which would make it possible to restrict the scope of application of the Act by means of a statute of a lower level than an Act.Therefore, the Court held, the Decree on services for persons with disabilities cannot be interpreted to the effect that it would prevent the reimbursement of costs incurred by building a fence in order to create safer conditions for the outdoor exercise of a severely disabled child, when the requirements for claiming reimbursement for necessary renovations are met in accordance with the Act.Considering the nature, cause and manifestations of X's severe disability, his right to outdoor exercise in the same manner as other children of his age, and the positive effect of exercise on his development, building a fence around the yard could be regarded as necessary in order for X to manage in his everyday life and activities.Therefore, the Court concluded, the parents' application for reimbursement of the building costs on the basis of the Act on services for persons with disabilities could not be rejected.The Supreme Administrative Court quashed the decisions of the municipal board and the administrative court and returned the matter to the board for reconsideration.

15.4.2010 / 28.3.2011 / RHANSKI

Date when decision was rendered: 25.3.2010

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 614; 1696/1/09

Reference to source

KHO 2010:18.

Yearbook of the Supreme Administrative Court 2010 January-June

Högsta förvaltningsdomstolens årsbok 2010 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2010 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: 189-198

Subject

aliens, respect for family life, family reunification, disabled persons, children, best interests of the child,
utlänningar, respekt för familjeliv, familjeåterförening, handikappade, barn, barnets bästa,
ulkomaalaiset, perhe-elämän kunnioittaminen, perheen yhdistäminen, vammaiset, lapset, lapsen etu,

Relevant legal provisions

sections 6-1, 37-1, 39-1, 39-2, 47-3 and 66a of the Aliens Act

= utlänningslag 6 § 1 mom., 37 § 1 mom., 39 § 1 och 2 mom., 47 § 3 mom. och 66a

= ulkomaalaislaki 6 § 1 mom., 37 § 1 mom., 39 § 1 ja 2 mom., 47 § 3 mom. ja 66a §.

ECHR-8

Abstract

A was a national of Bosnia and Herzegovina and had a permanent residence permit in Finland.In 2007, she married B, also a national of Bosnia and Herzegovina, and applied for her spouse to be granted a residence permit in Finland on the basis of a family tie.According to the Aliens Act, granting a residence permit required that the applicant has secure means of subsistence, which B did not have.A had no earned income and her subsistence came from social support and benefits.B had so far no employment in Finland.A was sole custodian and carer of her daughter, C, who was 16 years old and visually handicapped.B was not C's biological father.C had been admitted to Finland as a medical case through the UNHCR in 1996, at the age of 3, and A had accompanied her daughter.

According to the Aliens Act, an exception to the subsistence requirement is possible on exceptionally weighty grounds or because of the best interests of the child.After an overall consideration of the case, the Immigration Service found no reason to make an exception to the subsistence requirement.The application was rejected.The administrative court decided the case in A's favour and held, among other things, that because of the best interests of the child, it was unreasonable to expect the family to move to Bosnia and Herzegovina.The Immigration Service appealed against the decision to the Supreme Administrative Court.

In assessing whether an exception could be made to the subsistence requirement in this case, the Supreme Administrative Court took into account C's age at the time she arrived in Finland, the reason for her coming to Finland, the length of her stay and the special care she needed because of her visual impairment.In addition, the court noted that A was the carer of her daughter, who was clearly dependent on her mother.The court concluded that C's condition and the care she needed constituted an insurmountable obstacle which in practice prevented the family from moving to Bosnia and Herzegovina.Under the circumstances, there were exceptionally weighty reasons to make an exception to the subsistence requirement under the Aliens Act.The Supreme Administrative Court based its decision on the Aliens Act, but took also into account Article 8 of the ECHR and the decisions of the European Court of Human Rights in the cases of Rodriguez da Silva and Hoogkamer v. the Netherlands (31 January 2006), Konstatinov v. the Netherlands (26 April 2007) and Darren Omoregie and Others v.Norway (31 July 2008).

22.10.2013 / 22.10.2013 / RHANSKI

Date when decision was rendered: 11.1.2018

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 4004/3/15; 70

Reference to source

KHO 2018:3.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

disabled persons, right to education, non-discrimination,
handikappade, rätt till utbildning, icke-diskriminering,
vammaiset, oikeus opetukseen, syrjintäkielto,

Relevant legal provisions

section 16(1) of the Constitution Act; section 31(2) of the Basic Education Act; section 8(1) of the Non-Discrimination Act

= grundlagen 16 § 1 mom.; lag om grundläggande utbildning 31 § 2 mom.; diskriminteringslag 8 § 1 mom.

= perustuslaki 16 § 1 mom.; perusopetuslaki 31 § 2 mom.; yhdenvertaisuuslaki 8 § 1 mom.

CRPD-5; CRPD-7; CRPD-24

Abstract

A's daughter B, who was disabled, had started preschool in the autumn of 2015.Because of her disability, she was unable to take food by mouth.Instead, she had a PEG-button inserted in her belly through which nutrition and water could be delivered directly to the stomach.At school, B had her own personal assistant, who helped her with administering the nutrition.According to the Basic Education Act, which also provides for pre-primary education, a pupil attending basic education has a right to receive a balanced meal on every school day, free of charge.At first, B's parents had purchased the liquid nutrition from the pharmacy and had delivered it to the school.After a few months the mother A requested that the school buys the liquid directly from a wholesale distributor.The head of the local education department in the municipality denied A's request, saying that the liquid food was a pharmaceutical product, not a meal, and that the municipality had no duty to provide pupils with liquid or other nutrition that is not taken by mouth.The administrative court rejected A's appeal.A appealed further to the Supreme Administrative Court.

The Supreme Administrative Court noted that the provision in the Basic Education Act concerning free school meals implements the right to basic education free of charge as prescribed in the Constitution Act.Free basic education also means adequate food.As a main rule, the education provider has a duty to provide a pupil with a special diet when required for medical reasons or because of a disability.Because of her disability, B's nutrition consisted of the liquid delivered by means of a PEG-button.The liquid was thus not a pharmaceutical product but nutrition, comparable to a special diet followed for medical reasons.Whether the liquid was taken by mouth of by means of a PEG-button had no effect on the education provider's obligation to provide a meal free of charge for all pupils attending basic education.The fact that the pupil or the parents receive various forms of disability-related benefits or support also had no effect on that obligation.The Supreme Administrative Court concluded that the decision not to provide B with a free meal on every school day was illegal.The matter was referred back to the head of the local education department in the municipality for a new consideration.

Because the matter was concerning the application of the Non-Discrimination Act, the Non-Discrimination Ombudsman was heard.In her statement she referred to Articles 5 (equality and non-discrimination), 7 (children with disabilities) and 24 (education) of the CRPD.In her appeal to the Supreme Administrative Court, A also referred to the CRPD and the prohibition of indirect discrimination.In its decision, the court made no specific reference to the CRPD.

1.2.2018 / 1.2.2018 / RHANSKI

Date when decision was rendered: 8.6.2017

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 4361/2/16; 2716

Reference to source

KHO 2017:95.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

disabled persons, non-discrimination, freedom of movement,
handikappade, icke-diskriminering, rörelsefrihet,
vammaiset, syrjintäkielto, liikkumisvapaus,

Relevant legal provisions

sections 1 and 8(2) of the Act on services for persons with disabilities; section 4 of the Decree on services for persons with disabilities

= lag om service och stöd på grund av handikapp 1 § och 8 § 2 mom.; förordning om service och stöd på grund av handikapp 4 §

= laki vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista 1 § ja 8 § 2 mom.; vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista annettu asetus 4 §.

CRPD

Abstract

The municipality had previously decided that A, who was visually impaired, could use any taxi service of A's own choise when in need of transport under the Disability Services Act.The question was whether the municipality could later revise its decision to the effect that A was expected to use the municipal trasport service for people with special needs.A claimed the municipal transport service was inflexible and meant longer waiting times.In A's view this restricted the right to personal mobility and was discriminatory under the CRPD.

The Supreme Administrative Court held that when providing transport services for persons with special needs under the Disability Services Act, the municipality has a duty to hear the views of the persons concerned, to take into account their personal needs and the limitations caused by their disability, but has no statutory duty to arrange the services according to the exact wishes of the persons concerned.However, because the right to use transport services for persons with disabilities is a subjective right under the Disability Services Act, it follows that transport services cannot be arranged in a manner which would in practice make it impossible for the person concerned to make use of the service.Municipal instructions relating to the practical arrangement of transport services and concerning, e.g., advance ordering and transport times, shall not restrict subjective rights provided for in the Act.

The court found that the requirement that A is to use the municipal transport service did not in practice prevent A from using transport services provided under the Disability Services Act.In fact, A had used the municipal service, and it had not been shown that there would have been any risk to A's personal safety.The municipality had also heard A's views before making the decision.Because the municipality has a right to exercise discretion in deciding how to provide transport services for a person with a severe disability, it can also change its practices.The decision, by which A had previously been exempted from using the municipal transport service, was not irreversible to the effect that it could not be revised by another decision.A's appeal was rejected.The court found that the municipality had not acted in breach of the Disability Services Act.The court also concluded briefly that the CRPD, which entered into force in Finland on 10 June 2016, that is, after the municipal decision of 17 November 2015, did not require that the matter should be decided otherwise.

2.2.2018 / 2.2.2018 / RHANSKI

Date when decision was rendered: 22.11.2018

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2337/3/17; 5430

Reference to source

KHO 2018:159.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

children, best interests of the child, right to be heard, disabled persons,
barn, barnets bästa, rätt att höras, handikappade,
lapset, lapsen etu, oikeus tulla kuulluksi, vammaiset,

Relevant legal provisions

sections 4-1, 20-2, 21 amd 87-1 of the Child Welfare Act; sections 17, 18-2, 19a-1, 34-1 and 34-2 of the Administrative Judicial Procedure Act; sections 14-2, 34-1 and 34-2-5 of the Administrative Procedure Act; section 6-3 of the Constitution Act

= barnskyddslagen 4 § 1 mom., 20 § 2 mom., 21 § och 87 § 1 mom.; förvaltningsprocesslag 17 §, 18 § 2 mom., 19a § 1 mom., 34 § 1 och 2 mom.; förvaltningslag 14 § 2 mom., 34 § 1 mom. och 2 mom. 5 punkten; grundlagen 6 § 3 mom.

= lastensuojelulaki 14 § 1 mom., 20 § 2 mom., 21 § ja 87 § 1 mom.; hallintolainkäyttölaki 17 § , 18 § 2 mom., 19a § 1 mom., 34 § 1 ja 2 mom.; hallintolaki 14 § 2 mom., 34 § 1 mom. ja 2 mom. 5 kohta; perustuslaki 6 § 3 mom.

CRC-12

Abstract

A and B had appealed against the decision by which their child C had been taken into substitute care and placed in an institution.The municipal board of social affairs and health had found that C's health and development were seriously endangered by the circumstances in which the child was being brought up.C was severely handicapped and autistic.C did not speak but communicated by gestures.In the appeal proceedings, the administrative court had heard the parents in an oral hearing.The parents requested an oral hearing also before the Supreme Administrative Court but the court decided it was not necessary.However, the court considered the question whether C should be heard in the matter.At the time C was 16 years old.

According to the Child Welfare Act, children aged 12 or over must be reserved an opportunity to express their views in a child welfare case concerning them.In addition to the child's custodian or other legal representative, a child who is 12 years of age or more is entitled to be heard in a child welfare case concerning said child.The Supreme Administrative Court found that based on these provisions C should be heard in the case.However, the court then noted that there is no provision in the Child Welfare Act or in other legislation which would regulate in more detail the right of a child to be heard in a situation where the child, who is over 12 years old but has not yet reached the age of majority (18 years), is not capable of understanding the significance of the child welfare matter concerning himself or herself.According to the Administrative Judicial Procedure Act and the Administrative Procedure Act, a legally incompetent person who has attained the age of 18 years shall himself alone exercise his right to be heard in a matter relating to his person, if he can understand the significance of the matter.The Supreme Administrative Court noted that due to the nature of C's disability C is not able to understand the significance of the decision concerning substitute care or of the appeal submitted by the parents.Having also taken into account the best interests of the child the court resolved the matter without hearing C.The court also found that there was no conflict of interests between the child C and the parents A and B in this case.Therefore it was not necessary to appoint ex officio a guardian to look after C's interests in the judicial proceedings.The court held that this did not contradict Article 12 of the CRC.The Supreme Administrative Court concluded that the decision on placing C in institutional care met with the criteria provided for in the Child Welfare Act.It upheld the decision of the administrative court.

4.4.2019 / 4.4.2019 / RHANSKI