(Occupational) participation by disabled people: can the UN Convention open up new perspectives?

"Inclusion" is a term which has become increasingly familiar in professional circles and in the general media since the enactment of the United Nations Convention on the Rights of Persons with Disabilities (referred to subsequently as the "UN Convention") and its adoption in the Federal Republic of Germany on 26 March 2009. But what does it actually mean? To what extent does an inclusive approach substantively move beyond the "philosophy" of participation? In other words, is it not the case that Volume Nine of German Social Security Code IX (SGB IX) represents the real quantum leap in this direction? After all, the much quoted paradigm shift "away from patronising care and towards self-directed participation" is attributed to SGB IX.

Whilst these issues continue to provoke a controversial response from experts, the implementation process of the UN Convention has begun and the focus is shifting to specific structural questions. The aim is for the National Action Plan to instigate the actual stages of realisation at a federal level. The National Action Plan is lead-managed and coordinated by the Federal Ministry of Labour and Social Affairs and locally based Federal Government representative and bundles together the range of activities intended to serve the needs of disabled persons. The intention is that it will be lent relevant political status via a resolution of the Federal Cabinet in the spring of 2011. At a federal state level, the State Government of the Rhineland Palatinate became the first such government to adopt an action plan on 16 March 2010. The plan includes a specific catalogue of measures and stipulates areas of responsibility as well as setting out a schedule (cf. Ministry of Labour, Social Affairs, Health, the Family and Women of the State of Rhineland Palatinate 2010).

The development of action plans at both a Federal Government and federal state level is not merely the result of the marked and unexpectedly strong impetus provided by the ratification of the UN Convention in Germany. In adopting the UN Convention and in accepting its optional protocol, the Federal Republic of Germany has entered into commitments and has become firmly engaged in a monitoring process which also includes regular reporting requirements for states who are party to the Convention.

Education and work possess key functions for accessible and unrestricted participation in society. Article 24 of the UN Convention deals with realising the right to education and stipulates that the parties to the Convention shall ensure that:

• persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
• effective individualised support measures are provided in environments that maximise academic and social development, consistent with the goal of full inclusion;
• persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others.

In Germany, tried and tested statutory stipulations which take full account of these demands have been in place for many years in the form of instruments which compensate for disadvantage. These include training courses exclusively available to disabled persons. At least regionally, however, a degree of uncertainly appears to prevail with regard to knowledge of the alignment and applicability of these instruments in practice, there is still a lack of self-evident use of the instruments to the extent required for the disabled persons affected by those responsible. It remains to be seen whether the principles contained with Article 4 of the UN Convention (see box) will provide sustainable support for the nationwide implementation of compensatory instruments in vocational training for disabled persons.

The sections of the Vocational Training Act (BBiG) and the Crafts and Trades Regulation Code (HwO) which deal with the vocational education and training of disabled persons make express reference to the definition of disability included in Volume Nine of German Social Security Code (SGB IX). § 2 Paragraph 1 SGB IX states that people should be considered to be disabled "if it is highly likely that bodily function, intellectual ability or mental health will deviate from the condition typical for age for a period of longer than six months and thus endanger participation in the life of society".

Article 4
General obligations
States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

a) to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention;
b) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
c) .
d) to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
e) .
f) .
g) .
h) .
i) to promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.

In all the above cases, the compensation for disadvantage pursuant to § 65 BBiG or § 42l HwO should be applied within the context of vocational education and training in recognised training occupations. This states that "due consideration should be accorded to the particular circumstances of disabled persons, especially in respect of the content and time structure of training, the duration of examination periods, admissibility of aids and obtaining assistance from third parties."

In requiring these "particular circumstances", i.e. restrictions with regard to regulations governing the execution and examination of training caused by disability, to be taken into account, the legislation transfers to the competent bodies a remit which is just as challenging as it is crucial to the disabled persons affected and to their opportunity to undergo training in a recognised training occupation. In the legislative process leading up to the passing of the Vocational Training Act in 1969, the report produced by the Committee for Labour and Social Regulation emphasised the particular importance of this task (cf. German Parliament Paper V/4260 of 4 June 1969). The competent bodies may enact their decisions as a general regulation for more than one person as well as being empowered to decide on an individual case basis. The formulations by the BBiG and the HwO in respect of the opportunities stated above are examples rather than final proposals (cf. LEINE-MANN/TAUBERT 2008).

§ 66 Paragraph 1 of the Vocational Training Act (BBiG) and § 42m of the Crafts and Trades Regulation Code (HwO) make provision for the competent bodies to act on an application made by disabled persons or their legal representatives to instigate training regulations in accordance with the recommendations of the Board of the Federal Institute for Vocational Education and Training for disabled persons for whom the nature and severity of their disability means that training in a recognised training occupation is not possible. Professional assessments regarding the nature and severity of disability are made by the relevant Regional Employment Agency which in turn is required to include the specialist services offered by the Federal Employment Agency in its test of aptitude. The corresponding legal evaluation is the responsibility of the competent body (cf. WOHLGEMUTH et al. 2005).
The statutory stipulation with regard to training content is that such contents "should be developed from the contents of recognised training occupations according due consideration to the status and development of the general labour market" § 66 Paragraph 1 of the Vocational Training Act, BBiG and § 42m Paragraph 1 of the Crafts and Trades Regulation Code, HwO).

Because training regulations for disabled persons are promulgated by the relevant competent bodies, very many different training regulations for individual recognised training occupations have been produced over the course of the years. "As early as 1978, the Federal Institute for Vocational Education and Training (BIBB) and the Disabled Persons Committee (AfbM) drew up framework guidelines which were enacted in the form of a Board recommendation in order to counter the uncontrolled proliferation of such regulations. At the time, there were around 150 differently regulated training courses despite the fact that occupational titles were the same in many cases" (BRETSCHNEIDER /VOLLMER 2011, S. 19). Starting from the finding that the number of individual regulations had grown to just under 1,000 by 2006 and that the multitude of such regulations was therefore becoming ever more unclear, updated framework guidelines were adopted in the same year. The aim of the new framework guidelines is the initiation of "scrutiny, harmonisation and nationwide standardisation of training regulations within the same occupational area in order to unify and simplify training regulations piloted in practice and to bring about a significant concentration in terms of number and clarity of regulations" (cf. BIBB Board 2006).

As part of the implementation of the implementation process of the new framework guidelines, BIBB conducted an investigation into the quantitative scope of regulations, qualification titles and the structural and content design of existing raining regulations in 2008 (cf. VOLLMER/FROHNENBERG
2008). The results of this study formed the basis for the further approach adopted by BIBB and AFbM, who responded to the expectation of guidance articulated on a frequent basis by the competent bodies via the adoption of the "Training regulations framework for people with disabilities pursuant to § 66 of the Vocational Training Act (BBiG)/§ 42m of the Crafts and Trades Regulation Code (HwO)" by the BIBB Board on 17 December 2009.

This training regulation framework constitutes a further development of the framework guidelines in its intention to provide a guarantee that disabled persons will be trained in accordance with nationally uniform standard across all occupational areas. The core elements of the training regulation framework are as follows:

• the opportunity to transfer to a training course in a related state recognised occupation and a personal support plan;
• co-responsibility of the vocational school;
• adopting people with learning disabilities as a target group;
• suitability of the training venue, trainer ratio and specific additional qualifications for trainers in the field of rehabilitation;
• stipulations for company-based training content and training times, support phase, employability skills as the objective of training and
• a unified, non-discriminatory qualification title.

As well as forming the binding foundation for the enactment of all training regulations by the competent bodies (so-called "chamber regulations"), the training regulation framework also constitutes the basis and framework for the activities of the working groups, which draw up occupationally specific sample regulations by resolution of the Board. These are then accorded the status of Board recommendations. The working groups operate under the lead management of BIBB and have included experts from the social partners, the Federal Government, the Conference of the Ministers of Education and Cultural Affairs (KMK) and expert and practical representatives from institutes for the vocational training of disabled persons.

Although the first of these occupationally specific working groups were still engaged in a number of rearguard actions with regard to critical aspects of the training regulation framework, they also produced pioneering work for all the working groups which are to follow in accordance with the agreed will expressed by the stakeholders working together in the committees of the BIBB Board (Federal Government, federal states, social partners). (cf. BAYER 2010). The fact is that whereas classical regulatory work for the introduction and updating of recognised training occupations enjoys the support of a standardised procedure which has been tried and tested for decades and which has also been lent additional stabilisation in recent times via quality assurance, these working groups have broken new ground - even if the initial attempts to draw up nationally uniform sample regulations took place as long ago as the early 1980's. Forthcoming tasks in the field of training regulations in their capacity as an instrument for realising the participation of disabled persons within the meaning of the prohibition of discrimination enshrined in German Basic Law (Article 3) and within the scope of the inclusive approach adopted by the UN Convention will include both the nationwide and cross-branch implementation of the training regulation framework and the sample regulations and, in the medium-term, evaluation of these. In addition to this, a particular focus needs to be placed on the express pursuit of the approach initiated by the AfbM, on expanding the rather limited spectrum of occupational areas which are available to offer disabled persons vocational training on the basis of training regulations and especially on developing alternatives to the usual housekeeping sector for young women. This is an area in which the development of sample regulations can create a ripple effect and encourage companies and vocational education and training institutions operating within the training regulations segment - such as vocational training centres for disabled young people and local rehabilitation establishments in particular - to develop training provision in labour market oriented occupational areas which are suitable for this group of persons.

In November 2006, BIBB and the AfbM staged a specialist conference under the motto of "Qualified vocational education and training for all". The purpose of the conference, which attracted nationwide attention, was to provide information about the new framework guidelines whilst also integrating the expectations, experiences and evaluations of practitioners into the process. Such a solution is more valid than ever with regard to the vocational education and training of disabled persons on the basis of the Vocational Training Act and the Crafts and Trades Regulation Code. It also, however, provides indications which go beyond this.
The vocational training of disabled persons also takes place under other legal framework conditions and "umbrellas". Consideration also needs to be accorded to the vocational training provided in workshops for disabled persons, provision which is highly relevant in quantitative terms, and to the relatively recently instigated "supported employment" pursuant to § 38a SGB IX.

As VET policy and vocational pedagogy criteria, connectivity and permeability are of particular significance, especially in the vocational education and training of disabled persons. For this reason, bridges need to be built and prerequisites for their specific implementation put in place. One example of how this could be done would be to align vocational training in workshops for the disabled to dual training on the basis of the Vocational Training Act (BBiG) and the Crafts and Trades Regulation Code (HwO) and to make specific credit transfer available. Another way would be to update the advanced training regulations for "Certified specialist in work and occupational support in workshops for disabled persons" in order to map an occupational field focusing on a qualifications profile which is required at a range of learning venues and is oriented in a person-centred manner rather than being restricted to a specific institution.

If occupational biographies (and thus life chances) no longer culminate in dead ends as a result of various legal circles and areas of responsibility and if the spirit and letter of the UN Convention can be upheld and accessibility achieved, disabled persons will actually enjoy equal participation, both in (vocational) training and via (vocational) training. The views expressed by Federal Minister of Education ANETTE SCHAVAN in her official address to mark the opening of the DIDACTA education fair in Cologne on 16 March 2010 need to be taken seriously, and the focus now should be on implementing them. "If it benefits our children that the Federal Government, the federal states, local authorities (and further partners) work together on educational issues, then this is what we must do. We need new forms of cooperation in the field of education which are aligned towards actual responsibility rather than merely towards areas of responsibility."

The UN Convention can serve as an excellent compass for investigating both framework conditions and the institutional landscape as it has developed with regard to the precept of participation. It is within the interests of those affected and completely within the spirit of the UN Convention with regard to its emphasis on the dignity of every single individual person not to set out any concept in absolute terms (including a concept for inclusion) and not to defend structures and acquired rights simply for their own sake. Instead of this, the focus needs to be on identifying and shaping pathways for operationalisation which do justice to the vision of the UN Convention.

• BAYER , S . G . : Ausbildungsregelungen für behinderte Menschen. Einheitlicher Rechtsrahmen empfohlen [Training regulations for disabled persons. Standardised legal framework recommended]. In: Wirtschaft und Berufserziehung [Business and Vocational Education] 62 (2010) 7, pp. 32-33
• BIBB BOARD: Rahmenrichtlinien für Ausbildungsregelungen nach § 66 BBiG und § 42m HwO für behinderte Menschen. Empfehlung des Hauptausschusses des Bundesinstituts für Berufsbildung vom 20.06.2006 [Framework guidelines for training regulations pursuant to § 66 of the Vocational Training Act (BBiG) and § 42m of the Crafts and Trades Regulation Code (HwO) for disabled people. Recommendation of the Board of the Federal Institute for Vocational Education and Training of 20 June 2006]- URL: www.bibb.de/veroeffentlichungen/de/bwp/show/id/1696 (Status: 31.01.2011)
• BIBB BOARD: Rahmenregelung für Ausbildungsregelungen für behinderte Menschen gemäß § 66 BBiG/42m HwO. Empfehlung des Hauptausschusses des Bundesinstituts für Berufsbildung vom 15.12.2010 [Framework regulations for training regulations pursuant to § 66 of the Vocational Training Act (BBiG) and § 42m of the Crafts and Trades Regulation Code (HwO) for disabled people. Recommendation of the Board of the Federal Institute for Vocational Education and Training of 15 December 2010] - URL: www.bibb.de/dokumente/pdf/HA136.pdf (Status: 31.01.2011)
• BRETSCHNEI DER , M . ; VOLLMER , K . : Menschen mit Behinderung: Ausbildung ermöglichen [Persons with disability. Facilitating training]. In: B&B Agrar 64 (2011) 1, pp. 18-20
• LEINEMANN , W. ; TAUBERT, T. : Berufsbildungsgesetz [Vocational Training Act]. 2nd edition, Munich 2008
• MINISTERIUM FÜR ARBEIT, SOZIALES , GESUNDHEIT, FAMILIE UND FRAUEN RHEINLAND -PFALZ [MINISTRY OF LABOUR, SOCIAL AFFAIRS, HEALTH, THE FAMILY AND WOMEN OF THE STATE OF RHINELAND PALATINATE] (Ed.): Umsetzung der UN-Konvention über die Rechte von Menschen mit Behinderungen. Aktionsplan der Landesregierung [Implementation of the UN Convention on the Rights of Persons with Disabilities. Action Plan of the State Government] 2010 - URL: www.un-konvention.rlp.de/un-konvention/aktionsplan-der-landesregierung/ (Status: 31.01.2011)
• VOLLMER , K . ; FROHNENBERG , C . (Ed.): Die Ausbildungsregelungen für behinderte Menschen unter Berücksichtigung quantitativer und qualitativer Kriterien und Fragestellungen [Training regulations for disabled persons taking quantitative and qualitative criteria and issues into account] (Wissenschaftliche Diskussionspapiere, Heft 103 - Academic Research Discussion Papers, Issue 103). Bonn 2008 - URL: www.bibb.de/veroeffentlichungen/de/publication/show/id/2082 (Status: 31.01.2011)
• WOHLGEMUTH , H . H . et al.: BBiG. Berufsbildungsgesetz. Kommentar für die Praxis [Vocational Training Act, BBiG. A commentary for practice] 3rd edition, Frankfurt am Main 2005

 

KIRSTEN VOLLMER
Company and Individual Customer related Service Occupations/Disabled Persons Committee"

Translation from the German original "(Berufliche) Teilhabe behinderter Menschen: Neue Perspektiven durch die VN-Konvention?" (BWP 2/2011) by: Martin Kelsey, Global Language Services