The right to study of students with disabilities: conflicting lights and shadows between administrative sentences and those of constitutional legitimacy

19 August 20241 month ago babelfish

The speech by Francesco Alberto Comellini, member of the Scientific Technical Committee of the Permanent Observatory on Disability – OSPERDI

The very recent ruling of the Council of State, supreme administrative judge, published on 12/08/2024 with no. 07089 (1), on the appeal judgment which revolves around a single thematic nucleus concerning the incompressibility of the right to scholastic inclusion of people with disabilities also with respect to the hours of assistance for autonomy and communication, which today sees – unfortunately – succumb to the right of the disabled person with respect to budgetary needs, and which originates from the appeal to the Sentence of the Administrative Court of Emilia-Romagna which had rejected the complaints of two parents who complained that their child had been paid a lower number of hours of communication assistance (ASACOM) compared to stable ones in addition to the weekly hours of support, from the GLO (2), urges us to make some initial reflections.

The sentence, in comment, which I am sure will cause discussion, must be read against the light according to different distinct profiles but all converging in the guarantee of the incompressible right of the person with disability, to full scholastic inclusion and to the provision of the most appropriate measures and supports so that right is realized in practice.

The first of these, perhaps the most important in the opinion of the writer, can only be that of the effect (read risk!) of producing a firm anchor for the bodies involved and in perennial financial crisis, useful for grounding possible forms of a "differentiated and conditioned" use of school inclusion "tools" as regulated, most recently, with Legislative Decree 13 April 2017, n. 66, who are precisely the support teacher (article 3, paragraph 2, letter a) who, identified by the regional school office, is assigned within the staff resources and for the defined support positions, and therefore on the basis of a concrete "guarantee of sustainability" of the expenditure from the general state budget, and the "professional profiles" of the staff assigned to assistance for autonomy and personal communication (among those provided for in article 3, paragraph 2, letter c) which must instead be guaranteed by the local authorities and identified, pursuant to paragraph 4 of the same article 3, within the available own, human and financial resources, or with funds coming from the transfers of the Regions, according to a quantification of the needs resulting from planning, carried out on the basis of requests addressed to the Regional School Offices. This, considering that these figures, who we believe should act in synergy with each other, operate as an essential part – each in their area of expertise – in the processes of scholastic and social inclusion of students with disabilities.

Unfortunately, we seem to see in this sentence of the Council of State, which limits the subject of the dispute, believing that it goes beyond the very different topic of the assignment of educational support measures, to the assignment of other scholastic inclusion measures consisting of assistance with autonomy and communication, carried out by operators burdening the municipal budget and not that of the school administration, as instead happens for support teachers, a diplopia dictated, perhaps but not only, also by an incorrect interpretation that does not allow us we feel we agree with the principle of "reasonable accommodation" which here seems to be understood more as a "tool" to support the containment of spending than as defined by article 2 of the United Nations Convention on the Rights of Persons with Disabilities (3) , in the sense of adopting a "balancing system between the parties" aimed at guaranteeing the full right to inclusion of the person with disabilities, with the risk that the whole thing (the sentence in question as a whole) translates into a landmine placed on journey, unfortunately still uphill, of the rights of people with disabilities.

There is more than one reason that pushes us to reflect on the scope of this sentence, also in light of the precedents established, and here in part widely contradicted, by the Council of State itself, net of further and always possible reflections on the instrumental use of the reasons for the ruling and its possible repercussions, not only, for example, with regard to the implementation of the legislative decrees deriving from the implementation of law 22 December 2021, n. 227 of revision and the reorganization of the current provisions on disability, such as the Legislative Decree. Legislative Decree 222/2023 regarding the redevelopment of public services for inclusion and accessibility which, a product of a certain political party with evident implementation criticalities also because it lacks any financial resources intended for this, has an extremely vast scope and is capable of having an impact heavily on the already meager budgets of the public bodies obliged to do so, but also with respect to the still not well delineated repercussions that will derive from the implementation of the legislative provisions on the differentiated autonomy of the Regions with ordinary statute (4) which, as is known, affect the forms and particular conditions of autonomy in 23 subjects, including health, education, sport, environment, energy, transport, subjects interconnected to the rights of people with disabilities, while we await the definition of the essential performance levels (Lep) for the effectiveness of rights throughout the national territory.

Among the reasons for the analysis in the sentence, for example, the Supreme Administrative Judge considers the scope of article 7, paragraph 3, letter d, to be very clear, where it establishes that the PEI "explains the methods of educational support, including the proposal of the number of hours of support for the class, (…) and the proposal of the professional resources to be allocated to assistance, autonomy and communication, (…)" and, using the words "the proposal" negatively, postulates how the GLO's decision is , specifically to be considered as a "mere proposal" and that the decisions taken cannot be considered "definitive assignments" and states that "the littera legis is unequivocal on the point". This is a thesis that we do not feel like subscribing to, given the inseparable and obvious educational synergy for inclusion between support activities and communication assistance activities, given that it is the same judging body, and it is useful here remember him, precisely with his articulated pronunciation n. 2023/2017, to indicate that "the GLO is the body responsible for drawing up the individual PEI and that the school head is understood as a monocratic body called upon to attribute to each pupil with a disability a number of hours of support corresponding to that covered by the single proposal of the GLO, from which therefore one cannot deviate" and that the orientation of administrative jurisprudence must be considered acceptable on the basis of which the parents' claim to see the hours of support attributed to their disabled children in the determined amount would be founded by the GLOs, with the consequence that, for this very reason, school managers, having to avoid issuing illegitimate acts, should arrange for the allocation of hours to the same extent, even where the school offices have not allocated the indispensable resources" (5 ). Therefore, if it is established that the manager cannot deviate from the "proposal" of the hours of support established by the GLO, it is not clear why today he can also deviate from the proposal of hours of communication assistance "proposed" by the same GlO, if not by hypothesizing , for example, and net of the judge's ability to understand the positive dynamics that are activated between support actions and assistance actions when arranged jointly, that the former fall within the State budget and do not weigh on the budgets of local authorities , while the latter are borne by the budget of individual local authorities. An issue that could appear objectionable, first of all given the applicability of the Law without distinction throughout the territory of the State to guarantee the right of the student with disabilities and not based on the source of financing of the specific action implemented to support the inclusion process school. Nonetheless, according to what has just been said, the position of the Council of State does not appear to be acceptable where it states, in the detailed reasons supporting its ruling, that "an irreducible margin of discretionary appreciation remains within the municipal administration (…) concrete ways of shaping the service are affected, on the one hand, by the overall limit of available resources (…) and, on the other, by the specific implementation methods as well as by the quality standards envisaged by the aforementioned Agreement at the time of the Unified Conference.". In fact, it is precisely the sentence of the TAR of Lazio n. 9795 of 14 September 2021 which annulled Interministerial Decree no. 182/2020, which concerned the adoption of new models of the Individualized Educational Plan (PEI) and related guidelines, which underlined the importance of guaranteeing scholastic inclusion for all students with disabilities, regardless of the type of school attended (in the case of the state or municipality).

It therefore does not appear plausible, not even hypothetically, that the margins of appreciation of the Municipal Administration or the agreements within the Unified Conference could contradict the mandatory principles set out, on a regulatory level, by Legislative Decree no. 66/2017 and subsequent amendments, which are crystal clear aimed at guaranteeing the person with certified disabilities the right to education, instruction and training, unconditionally and equally throughout the entire territory of the State.

With the ruling in question, the Supreme Administrative Judge therefore seems to be clearly going against the trend, not only with respect to the historic ruling of the Constitutional Court no. 80/2010, which attributed, among other things, to students with disabilities the right to obtain hours of support and assistance, to the exact extent identified by the GLO, but also to the enlightened Judgment 275/16 (6) of the Court Constitutional law which, in forming many new positive jurisprudential arrests, to clarify interpretative elements that had until then been controversial for the concrete implementation of the rights of people with disabilities, has engraved in the pages of positive law a historic maxim which, reread today, puts in the correct light the principle of "reasonable accommodation", which should be understood – again in the opinion of the writer and in light of the complex international, national and Euro-unitary regulatory framework in force – not as a possible "escape route" dictated by the scarce resources of the budget of the 'Territorial body interested from time to time, but as the "lynchpin" of a balanced search for the most appropriate solution to the individual case, to offer the person with disability a solution acceptable to the parties involved as long as it is in line with the principles expressed by the Convention UN for the satisfaction of incompressible rights, constitutionally protected, always with the utmost respect for the "sacred principles" that support administrative action (7), and establishes very clearly how "the concept of budget balance must be correctly understood in the sense that it is the guarantee of incompressible rights to impact the budget and not the balance of this to condition the dutiful provision of services to achieve it".

Those words written by the Supreme Judges of the Laws, which thus establish the absolute predominance of the right of the disabled person to have their needs satisfied compared to any other element of possible compression of that same right, including the financial aspects of the body called upon to fulfill it, so much so that – write the Supreme Judges – "once legally identified, the insurmountable core of minimum guarantees to make effective the right to study and education of disabled students cannot be financially conditioned in absolute and general terms, it is entirely evidence that the alleged violation of the art. 81 of the Constitution (8) is the result of an incorrect vision of the concept of budget balance, both with regard to the Region and the co-financing Province" and, again in the opinion of the writer, that "insurmountable core of guarantees" can well be understood as, in the case of today's Sentence, precisely in the exact measurement of the hours of communication support and assistance, identified by the GLO.

Having said this, for clarity of exposition, it is recalled that the matter referred to in Sentence 275/16 originated from a dispute brought to the attention of the Regional Administrative Court for Abruzzo, concerning the instruments aimed at guaranteeing the right to study of the person with disability and, specifically, transport services from home to school, provided by the province of Pescara which, in requesting the Abruzzo Region to cover its share of expenditure for the transport service for disabled people carried out between 2006 and 2012 , unexpectedly, was objected by the same Region, in the face of a reduction made on the sums to be paid to the province, that "by virtue of art. 6, paragraph 2-bis, of the regional law, one's obligation to pay 50% of the aforementioned expenses was limited by the financial availability of the budget".

However, the Abruzzo TAR, with uncommon sensitivity, raised the question of the constitutional illegitimacy (9) incidentally of the law, also maintaining that the clause "within the limits of financial availability determined by the annual budget laws", contained in the law Regional (later censored), “would legitimize an arbitrary decision by the Region to intermittently cover the costs of the service, managed in accordance with the plan envisaged by the art. 6 of the same law." and, we add, this arbitrary legitimation of the decision could even be conditioned, if not supported, by an always possible incorrect planning of needs and therefore of the consequent resources needed. Simplifying for brevity of exposition, also following this, with firm arguments, first of all that "the disabled person's right to education is enshrined in the art. 38 of the Constitution, and it is up to the legislator to prepare the appropriate tools for its creation and implementation, so that its statement does not translate into a mere programmatic prediction, but is filled with concrete and real content" and that "art. 24 of the United Nations Convention on the rights of persons with disabilities (…) imposes an insurmountable limit on the discretion of the legislator in «respecting an indestructible core of guarantees for the interested parties» (editor's note: express reference to sentence no. 80 of 2010), which includes the school transport and assistance service since, for the disabled student, it constitutes an essential component to ensure the effectiveness of the same right", the Constitutional Court ruled on the constitutional illegitimacy of the art. 6, paragraph 2-bis, of the regulatory law. Abruzzo n. 78 of 1978, limited to the phrase «, within the limits of the financial availability determined by the annual budget laws and registered in the relevant expenditure chapter,», thus causing any shield of the Abruzzo Region to lapse in order not to satisfy the demands of the province of Pescara and with these are the rights – it is reiterated constitutionally protected – of people with disabilities from supposed budget constraints, and indeed, taking care to specify, in the reasons supporting his detailed decision, how «it cannot be assumed that the law approving the budget or any other law affecting the same constitute a free zone that escapes any review by the constitutionality judge, since there cannot be any constitutional value whose implementation can be considered exempt from the inviolable guarantee represented by the judgment of constitutional legitimacy" (reference to sentence no. 260 of 1990).

In conclusion of this brief analysis, glimpsing a possible, but not far-fetched, point of negative impact of the current Judgment of the Council of State in terms of the critical issues just mentioned, also supported by the belief that the reformulation of article 17 of the Legislative Decree of 3 May 2024 , n. 62, which in paragraph 5 (10) inexplicably persists in establishing – contrary to the principle established by sentence 275/2027 of the Constitutional Court and the genuine spirit of reasonable accommodation – how the guarantee of incompressible rights is conditioned by the availability of the budget, I leads to offering to the reader's attention, a further subdued reflection, also making use of other rulings of the same Constitutional Court, to support the thesis of the operational inseparability between all institutions capable of guaranteeing the full educational inclusion of students with disabilities and specifically to confer equal dignity between the hours of support and those of educational assistance, as assessed and determined by the GLO. This topic is currently the subject of careful parliamentary examination, with reference to the professional profile of the assistant for autonomy and communication, through the bill (11) of Senator Carmela Bucalo, which aims, although not indicating the actual financial resources necessary for this, to overcome the current contractual and salary inequality existing between the above professional profiles and support teachers, through stabilization, under certain conditions, in the school system.

Therefore, on closer inspection, the harmonization of the two professional figures (editor's note: support and assistance) also through the inseparability of the hours of support and hours of assistance for autonomy and communication, determined by the GLOs for the overall goals and objectives and municipalities that these aim for, venturing a parallel, appears necessary because these can be compared to the inseparability of health care from welfare care in RSAs (12) for people with confirmed disabilities, established by various sentences and most recently by n. 135/2024 of the Constitutional Court, which reiterated the right of patients to receive integrated care, underlining that the expenses for assistance and health care must be covered together by the National Health Service (SSN), or that the expenses for the assistance and health care cannot be separated, thus guaranteeing complete and adequate support for patients who need it.

Therefore it seems logical to argue that the overall expenses incurred for the different measures aimed at guaranteeing full scholastic inclusion must not be split up, nor can they be partially ignored, nor influenced by financial considerations, but must be supported as a whole and according to the welfare needs defined by the PEI based on the same source of coverage paid by the State budget for the school sector, thus avoiding the possible imbalance between the measures determined as necessary by the GLOs and those actually paid by the obligated bodies. A different solution, undermined primarily by financial aspects, would lead to the consequent unbalancing of the rights of the subjects involved or entitled in various ways, with the inevitable overall result capable of affecting – even for the worse – the peculiar and very personal needs of the student with an established disability, admitted to the benefit, with respect to the set of positive objectives that both the hours of support and, where contextually arranged, the hours of communication assistance, aim to achieve within the Individualized Educational Plan (PEI) which is part of of the individual project for people with disabilities, which define the professional skills and the type of support measures and structural resources useful for school inclusion. Therefore, in detail, a plan (the PEI) and an individual project which, not separated in their application dimension, allow us to determine with granitic punctuality the resources needed for adequate planning and activation of the complex of measures aimed at achieving real school inclusion of our students with disabilities.

The hope is therefore now addressed to the Legislator so that he can clear the path on which the advancement of the civil, social and economic rights of people with disabilities proceeds, also, but not only, through a clarifying rule on the role, value and importance in synergy with other professional figures and the measures adopted to guarantee the scholastic inclusion of students with physical or sensory disabilities or with intellectual disabilities and neurodevelopmental disorders, of Assistants for autonomy and communication.

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Notes to the text

(1) CdS, Sentence of 12/08/2024 (07089/2024)

(2) Operational working groups for inclusion referred to in art. 9, paragraph 10 of Legislative Decree 66 of 2017

(3) Law 3 March 2009, n. 18, containing “Ratification and execution of the United Nations Convention on the Rights of Persons with Disabilities, with Optional Protocol, made in New York on 13 December 2006 and establishment of the National Observatory on the Condition of Persons with Disabilities”.

(4) Law 26 June 2024, n. 86 containing “Provisions for the implementation of the differentiated autonomy of the Regions with ordinary statute pursuant to article 116, third paragraph, of the Constitution”.

(5) School inclusion of pupils with disabilities and competent bodies in the formation of the individualized educational plan ( Note to the State Council, section VII, 3 May 2023, n. 4473 ) by Ilaria Genuessi in Administrative Law and Process, 05 October 2023

(6) Constitutional Court, Sentence 275/2016

(7) Art. 97, paragraph 2 of the Constitution and Art. 1, paragraph 1 Law 7 August 1990, n. 241

(8) In point 14 of Sentence 275/2016 the Court recalls how "the regional defense represents that the effectiveness of the disabled person's right to education must be balanced with other constitutionally relevant rights and, in particular, with the principle of financial coverage and of balance of public finances, referred to in art. 81 Constitution.”

(9) Article 17 of Legislative Decree 3 May 2024, n. 62, paragraph 5 “The reasonable accommodation must be necessary, adequate, relevant and appropriate with respect to the amount of protection to be granted and the contextual conditions in the specific case, as well as compatible with the resources actually available for the purpose”.

(11) S. 236 containing “Amendments to the law of 5 February 1992, n. 104, and the legislative decree of 13 April 2017, n. 66, concerning the introduction of the professional profile of the assistant for autonomy and communication in the roles of school staff".

(12) Assisted Healthcare Residences.

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/sanita/il-diritto-allo-studio-degli-studenti-con-disabilita-luci-e-ombre-conflittuali-tra-le-sentenze-amministrative-e-quelle-di-legittimita-costituzionale/ on Mon, 19 Aug 2024 07:36:48 +0000.