The abrupt termination of care for a disabled adult
The Defender of Rights' office received a complaint concerning a decision by the Commission for the Rights and Autonomy of Persons with Disabilities (CDAPH) which resulted in the sudden termination of the reception of a young adult with severe disabilities in a specialised reception centre (MAS).
The departmental home for disabled people (MDPH) concerned, recognising both the irregularity of this decision and of the
exclusion procedure that followed, revised the compensation plan for the person concerned, retroactively, by granting an increase in the volume of hours allocated to the family carer under the disability compensation benefit (PCH), as of the date of leaving the MAS. It has also planned to implement a comprehensive support plan to encourage the claimant to return to the MAS.
The Defender of Rights' office took note of these measures and recommended to the MDPH the implementation, without delay, of a comprehensive support plan in order to propose appropriate measures to ensure effective reception of the person concerned in a medical-social institution (Decision No. 2020-020 of 22 January 2020).
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The quota of absences for personal reasons in a childcare facility
The father of a young disabled adult approached the Defender of Rights' office about day-care scheme for his son in a residential home, which treated his absences due to illness as absences for personal reasons, the former being deducted from the quota for authorisation of absences for personal reasons, and the Defender of Rights' considered that this scheme, which stems from the departmental social assistance regulations (RDAS), led to discrimination based on health condition and disability.
The Defender of Rights' office recommended to the relevant departmental council to amend its departmental social assistance regulations so that days of absence due to sickness are subject to the same regime as days of absence due to hospitalisation and do not reduce the quota of authorised absences for personal reasons enjoyed by persons housed in a medical-social institution (Decision No. 2020-104 of 6 May 2020).
Foreign persons' access to public services
Difficulties of access to prefectoral counters due to dematerialised procedures
For more than two years, the Defender of Rights' office has received a large number of complaints from persons who are unable to apply for a residence permit. As some prefectures have decided to impose appointment scheduling on the Internet, such steps are made impossible when the online schedules are booked solid. In some departments, a large number of people are thus forced to log on every week for several months, or even go to court, before obtaining an appointment. Without a residence permit, they are exposed to the risk of being expelled from the territory at any time and may also suffer disruption of their rights or lose their jobs.
The Defender of Rights' office took the view that such procedures were in contradiction with the rules governing the referral of cases to the administration by electronic means and the rights of its users, but also with the main principles governing public services, namely mutability, continuity and equality, as well as with the right to respect for private and family life (Decision No. 2020-142 of 10 July 2020) . It has made several recommendations to the Minister of the Interior and calls, in particular, for the systematic introduction of channels of access to counters as alternatives to dematerialised procedures. In the meantime, it has also questioned each prefect concerned and requested communication of the
decisions relating to such teleservices. It also continued to report every individual situation of which it was aware.
Taking into account the prior residence
exceptions enjoyed by nationals of certain States with regard to ASPA
Article L.816-1 of the Social Security Code requires non-European foreign nationals to prove that they have been resident for at least ten years under a residence permit authorising them to work in order to benefit from the Solidarity Allowance for the Elderly (ASPA). On the basis of that provision, the Pension and Occupational Health Insurance Fund (CARSAT) refused to pay the ASPA to a Tunisian national, a former worker.
However, with regard to the ASPA, Tunisian nationals must, pursuant to Article 65 of the EU-Tunisia Agreement, be treated as if they were nationals of a European Union Member State, which implies in particular the exclusion of any condition of seniority of residence or previous residence.
Other nationalities have been exempted from the condition of prior residence, first by case law and then by the practice of the Funds, in application of international commitments entered into by France. The Defender of Rights' office noted that the practices of the Funds that pay the ASPA are not harmonised, especially for Tunisians, but also for
Moroccans and Algerians.
It recommended that the director of the National Old-Age Insurance Fund (CNAV) remind their departments that the condition of having a residence permit authorising work for at least ten years, provided for in Article L.816-1 of the Social Security Code, is not opposable to Moroccan, Tunisian and Algerian nationals (Decision No. 2020-107 of 20 May 2020). In response to these recommendations, the CNAV Director indicated that a new circular on the ASPA would soon be issued.
Unlawful refusal to enrol in a Jobs Centre training course because of the insufficient validity period remaining on the residence permit The claimant, a Congolese national holding a temporary residence permit, applied for enrolment in a training course offered by the Jobs Centre. The validity period remaining on his residence permit did not cover the entire training period and he was therefore refused.
The Defender of Rights intervened and, after exchanges with the organisation, took note of the favourable resolution of the claimant's situation. He recalled that in order to be registered with Jobs Centre and to benefit from access to the organisation's services, the foreign national must be looking for a job and hold a valid residence permit authorising them to work (Decision No. 2019-312 of 23 September 2019). The refusal by Jobs Centre therefore lacked a legal basis.
Moreover, by adding a condition of validity of the residence permit for the entire training period, the Jobs Centre substituted itself for the prefecture, which alone is competent to rule on the right of a foreigner to reside in France. Furthermore, this practice constitutes discrimination on the basis of nationality.
The Jobs Centre Director General confirmed the Defender of Rights' analysis and took steps to prevent such situations from recurring in the future.
Material reception conditions of asylum seekers The Defender of Rights is very regularly petitioned with complaints highlighting shortcomings in the material reception conditions (CMA) for asylum seekers in France, both with regard to the saturation of the National Reception System (DNA) and the effectiveness of the collection of the Asylum Seeker's Allowance (ADA).
Today, the changes to the ADA's payment methods, through the introduction of
a payment card instead of a cash withdrawal card, is creating new difficulties for asylum seekers.
Faced with this observation, the Defender of Rights recommended to the Ministry of the Interior, in two decisions of the same day, that it:
• Ensure effective access to material reception conditions is guaranteed and provide a dignified reception for asylum seekers by ensuring that the reception capacities of the National Reception System (DNA) are adequate and appropriate with regard to the asylum request and by ensuring the effective receipt of the Asylum Seeker's Allowance (ADA) (Decision No. 2020-150 of 10 July 2020);
• Amend the regulatory provisions of the Code on the Entry and Residence of Foreigners and the Right of Asylum (CESEDA), which provide for the possibility of paying the ADA by using a withdrawal or payment card in order to set up a system better suited to the situation of asylum seekers, i.e. a mixed card or the possibility of paying into the applicant's bank account if they hold one, or otherwise in cash (Decision No. 2020-147 of 10 July 2020).