Personlig assistans för barn - en undersökning av föräldraansvaret kontra samhällets ansvar. En rättssäkerhetsstudie. Examensarbete i juridik.
- Författare
- Grek, G.
- Titel
- Personlig assistans för barn - en undersökning av föräldraansvaret kontra samhällets ansvar. En rättssäkerhetsstudie. Examensarbete i juridik.
- Utgivningsår
- 2007
- Stad
- Lund
- Utgivare
- Lunds universitet
- Sammanfattning
This paper considers children's right to personal assistance according to 9th
§ 2, Act concerning Support and Service for Persons with Certain
Functional Impairments (referred to as the Act henceforth). The purpose is
to investigate the legal relation between the society's responsibility for
disabled children according to the Act and parent's responsibility according
to 6th chapter 2nd § the Book on Parents and Children (referred to as the
Book henceforth). The main interest is to look deeper into the way the rule
of law is being handled in situations concerning these matters.
In the first part of the paper the method is described. I discuss the concept of
rule of law, I describe the background of the regulations of current interest
and I investigate the current rules concerning children's right to personal
assistance and assistance benefit. Then an empirical investigation follows in
which I have revised in what way three different county administrative
courts have assessed the parental responsibility in cases concerning personal
assistance and assistance benefit. Finally the results of the investigation are
analysed with focus on the rule of law in its formal meaning. I also discuss
what the consequences of the conflict between the parental responsibility
and the society's responsibility according to the Act might be.
The Act was grounded to give persons with certain functional impairments a
right to apply for measures which are enumerated in the Act. The measure
of personal assistance has made a great effort in improving life for many
persons with functional impairments, but there are several problems in the
application of the law. The act is clear to the extent that what is decisive is
that the individual has need of the measure and that this need is not already
satisfied in any other way. The fact that it takes a judgement of a person's
individual need does bring difficulties in the adjudication. Children's right
to personal assistance is affected of the fact that it is regarded that parents
have a responsibility for their children according to the Book, but
unfortunately it is unclear how this parental responsibility shall be
considered, with respect to extent and contents. The answer cannot be found
in the text of the law nor the preparatory work. Some guidance is given in a
legal case from the Supreme Administrative Court in year 1997, which
stipulates that parental responsibility should not be regarded respecting the
fundamental needs of a twelve year old. The fundamental needs are: Help
with personal hygiene, get dressed and undressed, help related to meals,
help to communicate with others and help which requires detailed
knowledge of the person with functional impairments. Besides that, what
should be considered is that the appraisal of the parental responsibility
should be preceded by a comparison to the normal parental responsibility of
a child at the same age without any functional impairment. Only needs in
addition to the normal parental responsibility constitute a right to assistance.
1
The empirical investigation reveals great deficiencies respecting the motives
of the courts' judgements. In most cases, there is only a short statement that
a parental responsibility exists, but there is never any reasons stated to the
judgement respecting extent and contents. This ought to be contrary to the
courts' obligation to justify decisions and represents a large shortage
respecting the rule of law for the individual. The most important conclusion
in this essay is that it needs more guidance for the decision-makers
respecting children's right to personal assistance and assistance benefit. This
can be done either through more case law or on the government's or
legislator's initiative. The main thing is that it actually happens. In this way
the conflict between the society's responsibility according to the Act and the
parental responsibility can be able to find a solution with the result of an
improved rule of law for children with functional impairments and their
legal representatives.