This Chapter will examine how persons with disabilities encounter the law, based on the processes and approaches identified in the previous chapter. As a first step, the meaning of the term “law” as it is applied in this project will be outlined. The foundational documents for the law and persons with disabilities will then be briefly identified and described. The context in which persons with disabilities encounter the law will be briefly considered. Finally, the Chapter will examine key themes in the law as it affects persons with disabilities, which must be taken into account in identifying, defining and interpreting principles for this area of the law.
A. “The Law as It Affects Persons with Disabilities” – What Do We Mean?
In understanding the relationship of persons with disabilities with the law, it is essential to first understand that every law of general application that affects the population at large will also affect persons with disabilities. Laws relating to consumer protection, family formation and dissolution, zoning, voting rights, rental housing, protection of privacy and access to information, labour relations – all of these and many others are part of the law as it affects persons with disabilities. Some of these laws of general application may affect persons with disabilities or some group(s) of persons with disabilities differently from others. In some cases, this may be because the law does not take into account the particular needs of persons with disabilities. For example, if laws relating to voting and elections do not take into account accessibility barriers, persons with disabilities may find it more difficult to exercise their democratic rights than others. Because persons with disabilities may be invisible in the development of laws of general application, they may in this way be inadvertently disadvantaged through the law.
There are also a very large number of laws that are specifically targeted to persons with disabilities or some group of persons with disabilities. These laws aim to recognize particular circumstances connected to the experience of disability, and to address them. A review by the LCO early in this project identified over 150 Ontario laws and regulations specifically referencing persons with disabilities in general, or some particular group of persons with disabilities. The LCO’s June 2009 Preliminary Consultation Paper provides an overview of these targeted laws. They range over a broad spectrum of social areas, from income support, to education, to assistive devices to decision-making. Some have disability-related needs as a core focus, while others are directed to the population at large but provide specific supports or accommodations to persons with disabilities. Some provide supports or enhance opportunities, while others restrict roles or opportunities based on specific capacities or abilities. Many of these laws have very profound effects on the opportunities and well-being of persons with disabilities, the provisions for special education under the Education Act and of the Ontario Disability Support Program Act providing two obvious examples. A number of these laws are implemented through very complex policies and practices and large bureaucracies.
In understanding the law and persons with disabilities, the central analysis often, understandably, focuses on a careful review of the wording of the statute and regulation. From the beginning of this project, however, the LCO heard that while there were concerns with the provisions of particular laws, it was also important to pay attention to the ways in which laws are implemented. Laws may be neutral or even positive on their face, but may in practice have negative effects on persons with disabilities, as a result of problematic implementation. This was one of the key motivations behind the LCO’s expansive spring 2010 community consultations: without hearing from those directly affected by the law or directly involved in its implementation, it would not have been possible to truly understand the operations and effects of the law as it affects persons with disabilities.
Connected with this are concerns related to the ability of persons with disabilities to access their rights and responsibilities under the law. One aspect of the gap between aspiration and implementation of laws is access to justice for persons with disabilities. Unless the law is actually implemented and enforced, and is a living reality, it has little meaning for those whom it is intended to benefit. One element of access to the law is access to the legal system, which includes the ability to acquire information about one’s legal rights and responsibilities, to obtain competent legal advice and representation as required, and to access existing legal dispute resolution mechanisms. However, access to the law can be ensured in many other ways: for example, through advocacy organizations such as ombuds offices, administrative complaint mechanisms, or proactive monitoring and auditing structures.
This project therefore includes, as part of the law as it affects persons with disabilities, both laws of general application and those specifically targeted to persons with disabilities. It includes law both as written on the page and as implemented in policy and practice, and considerations related to the ability of persons with disabilities to access rights or responsibilities under the law.
Given the LCO’s mandate as a provincial organization, the focus of this project has been on Ontario laws. However, the LCO has considered federal laws insofar as they interact with provincial laws, and has of course taken into account the key relevant international documents. Because of the conceptual level of this project, there is a potential for the
Framework to have applicability or influence beyond the borders of Ontario.
The following Case Example provides an illustration of how an examination of the law as it affects persons with disabilities must include not only the provisions of the statute and the regulations, but also the lived experience of the implementation of the law, in order to fully understand the effect of the law on persons with disabilities, and thereby the degree to which it advances substantive equality for this group.
CASE EXAMPLE: IMPLEMENTATION OF THE LAW
Ontario Disability Support Program Processes
The Ontario Disability Support Program (ODSP), as governed by the Ontario Disability Support Program Act, its regulations, and extensive policy guidelines, provides essential income supports to persons with disabilities, who are often excluded from or marginalized in the labour force due to a range of barriers, including negative attitudes and stereotypes, a lack of accessibility and accommodations, the cumulative effect of barriers in education, and others. The supports provided through ODSP are essential to the fundamental security of many persons with disabilities and to their ability to live in basic dignity, and the Act recognizes the shared responsibility of government, families, communities and individuals to provide these supports.
However, the program, in addressing diverse goals, includes multiple procedural requirements, which can reduce its ability to meet its purpose of providing a program that “effectively serves persons with disabilities who need assistance”. In her 2004 report on Ontario’s social assistance system (including both ODSP and Ontario Works), Deb Mathews noted that,
There are now approximately 800 rules and regulations within the [social assistance] system that must be applied before a client’s eligibility and the amount of their monthly cheque can be determined…Because there are so many rules, they are expensive to administer and often applied inconsistently from one caseworker to another, even within the same office. Further, the rules are so complicated that they are virtually impossible to communicate to clients and it takes years to train a caseworker.
The complexity of the requirements and procedures can create a significant barrier for persons with disabilities in understanding and accessing supports or programs that are intended to assist them. The government has established a Commission on the Review of Social Assistance in Ontario, a major review of social assistance which is intended to make social assistance both financially sustainable and easier to understand. The Commission has identified this as a barrier and is seeking options to simplify the system and make it easier to understand.
These procedural barriers affect many aspects of the program. For example, the process by which persons with disabilities must apply to ODSP to have eligibility determined has been criticized, not only substantively, but as a lengthy, stringent and multi-layered process, one which persons with disabilities may find to be both demeaning and discouraging.
One example of the type of procedural issues that may create implementation issues can be found in the reporting and monitoring requirements related to retention of employment earnings. ODSP permits persons with disabilities to earn employment or business income and retain some part of it, a measure which has the potential to increase participation and inclusion for persons with disabilities, recognize their ability to make contributions to the community, and enhance their economic security. The treatment of employment earnings for ODSP purposes is a source of ongoing debate and raises substantive issues beyond the scope of this Case Example to address. However, the procedural aspects of monitoring and reconciling employment earnings were identified as a source of considerable frustration for persons with disabilities during the LCO’s 2010 consultations.
ODSP recipients who regularly or occasionally have employment or business income are required to send in a report every month, so that their benefits may be adjusted accordingly. The ODSP process for monthly reporting and benefit adjustment is a problem for many ODSP recipients since it means that their income support is subject to frequent adjustments or overpayments. This prevents them from being able to rely on a stable income stream. For example, many employers pay their employees bi-weekly. This creates difficulties for ODSP recipients since their income is exaggerated in those months that contain three pay periods. The following month, their income will revert to two pay periods but this lower income will be subject to a higher ODSP deduction calculated in relation to the previous month’s income. This kind of fluctuation can create chronic budgeting difficulties. This problem is particularly acute for seasonal or temporary workers who will have income earned during their last month of employment deducted from the much lower income that they receive in their first month without employment.
If individuals do not earn income in a particular month, they may not understand that they must nonetheless send in a report. However, ODSP staff may have the expectation of receiving a report and when they do not receive one they may send a letter suspending the recipient’s benefits. Alternatively, ODSP may have received a report but misplaced it. The receipt of suspension letters, although mistaken, can be very upsetting to recipients. As one participant in the LCO’s public consultations told us,
Where people end up in real problems in ODSP is in understanding their obligations to the system. And what the system requires them to do – register for this or declare that – then that’s where people really get in trouble. It’s not so much understanding their rights to what is there – it’s understanding what their obligation to the system is…The problem is, if you don’t understand what you need to do if you’re employed, what are the things you have to do – if you’re employed you have to report your earnings – you have to do it in specific amounts of time – you have to be doing all of these different things – and because of all of the discretion in these program and services and it’s there, the system can say, “oh I’m sorry, you’re really actually late for all of this, we’re not going to accept it this month, and you’re beat.”
LCO Focus Group, Individuals with Disabilities, Owen Sound, May 31, 2010
The calculations related to employment earnings are variable enough and complicated enough that ODSP