The heterogeneity of disability is mirrored in the diversity of legal provisions and benefits that most countries have introduced and codified over the last hundred years. The example of France is chosen because it has perhaps one of the most elaborate regulatory frameworks regarding the classification of disability. While the French system may not be typical compared with those of many other countries, it has—with respect to the topic of this chapter—all the typical elements of an historically grown classification system. Therefore, this case study reveals the fundamental issues that have to be tackled in any system that grants to disabled persons rights and entitlements which are subject to legal recourse.
The twentieth anniversary of the law of 30 June 1975 regarding disabled persons has triggered a renewed interest in the lot of the disabled in France. Estimates of the number of disabled French nationals range from 1.5 to 6 million (equivalent to 10% of the population), although these estimates suffer from a lack of precision in the definition of disability. This population is all too often relegated to the margins of society, and despite progress over the last two decades, their condition remains a serious societal problem with painful human, moral and emotional ramifications that transcend collective considerations of national solidarity.
Under French law, disabled persons enjoy the same rights and freedoms as other citizens, and are guaranteed equality of opportunity and treatment. Unless specific support mechanisms are implemented, this equality is, however, purely theoretical: disabled individuals may, for example, require specialized transportation and city planning to allow them to come and go as freely as other citizens. Measures such as these, which allow disabled persons to enjoy equal treatment in fact, are designed not to confer privilege, but to remove disadvantages associated with disability. These include legislation and other state-initiated measures that guarantee equitable treatment in education, training, employment and housing. Equality of treatment and palliation of the disability constitute the prime objectives of social policy concerning disabled persons.
In most cases, however, the various measures (usually termed political discriminatory measures) prescribed by French law are not available to all persons suffering from a given disability, but rather to selected subgroups: for example, a specific allowance or programme designed to favour occupational reintegration is available only to a specific category of disabled persons. The variety of disabilities and the multiple contexts in which disability may occur have necessitated the development of classification systems that take into account an individual’s official status as well as his or her level of disability.
Variety of Disabilities and Determination of Official Status
In France, the context in which disabilities arise constitutes the fundamental basis for classification. Classifications based on the nature (physical, mental or sensory) and degree of disability are also relevant to the treatment of disabled persons, of course, and are taken into account. These other classification systems are particularly important in determining whether health care or occupational therapy is the best approach, and whether guardianship is appropriate (persons suffering from mental disabilities may become wards of the state). Nevertheless, classification on the basis of the nature of the disability is the primary determinant of a disabled person’s official status, rights and eligibility for benefits.
A review of the body of French law applicable to disabled persons reveals the multiplicity and complexity of support systems. This organizational redundancy has historical origins, but persists to this day and remains problematic.
Development of “official status”
Until the end of the nineteenth century, care of the disabled was essentially a form of “good works” and usually took place in hospices. It was not until the beginning of the twentieth century that the ideas of rehabilitation and income replacement developed against the backdrop of a new cultural and social view of disability. In this view, the disabled were seen as damaged persons who needed to be rehabilitated—if not to the status quo ante, at least to an equivalent situation. This change in mentality was an outgrowth of the development of mechanization and its corollary, occupational accidents, and of the impressive number of First World War veterans suffering permanent disability.
The law of 8 April 1898 improved the occupational-accident compensation system by no longer requiring proof of employer liability and establishing a flat-fee compensation payment system. In 1946, management of the risk associated with occupational accidents and diseases was transferred to the social security system.
Several laws were passed in an attempt to correct prejudices suffered by injured or disabled First World War veterans. These include:
- a 1915 law establishing an occupational retraining system
- a 1916 law (complemented by a 1923 law) giving war invalids first call on public-sector jobs
- the law of 31 March 1918 instituting the right to a fixed pension based on the degree of disability
- the law of 26 April 1924 requiring private-sector companies to employ a specific percentage of war invalids
The interwar period saw the development of the first large-scale associations of civilian disabled persons. The most noteworthy of these are: the Fédération des mutilés du travail (1921), the Ligue pour l’adaptation des diminués physiques au travail (LADAPT) (1929) and the Association des Paralysés de France (APF) (1933). Under pressure from these associations and from unions, victims of work accidents, and eventually all the civilian disabled, progressively benefited from support systems based on those established for war invalids.
A disability insurance system was established for workers in 1930 and reinforced by the 1945 Decree creating the social security system. Under this system, workers receive a pension if their ability to work or earn a livelihood is significantly reduced by disease or accident. The right of victims of occupational accidents to retraining was recognized by a 1930 law. A training and retraining system for the blind was established in 1945 and extended to all seriously disabled persons in 1949. In 1955, the obligation to hire a minimum percentage of war invalids was extended to other disabled persons.
The development of the concept of occupational integration led to the promulgation of three laws which improved and reinforced existing support systems: the law of 27 November 1957 concerning occupational reclassification of disabled workers, the law of 30 June 1975 concerning disabled persons (the first to adopt a global approach to the problems faced by disabled persons, especially that of social reintegration), and the law of 10July 1987 favouring the employment of disabled workers. However, these laws in no way eliminated the specific dispositions of the systems responsible for war invalids and the victims of occupational accidents.
Multiplicity and diversity of regimes supporting disabled persons
Today, there are three quite distinct regimes providing support to disabled persons: one for war invalids, one for victims of occupational accidents, and the common-law system, which deals with all other disabled persons.
A priori, the coexistence of multiple regimes that select their clientele on the basis of the origin of disability does not appear to be a satisfactory arrangement, especially since each regime provides the same type of support, namely integration-support programmes, particularly those aimed at occupational reintegration, and one or more allowances. Accordingly, there has been a concerted effort to harmonize employment-support systems. For example, the vocational training and medical rehabilitation programmes of all the systems aim as much at distributing costs through society as at providing financial compensation for disability; the specialized training and medical rehabilitation centres, including the centres operated by the Office des anciens combattants (ONAC), are open to all disabled persons, and the reservation of positions in the public sector for war invalids was extended to disabled civilians by the Decree of 16 December 1965.
Finally, the law of 10 July 1987 united the private- and public-sector minimum-employment programmes. Not only were the conditions of these programmes extremely complex to apply, but they also differed depending on whether the individual was a disabled civilian (in which case the common law system applied) or a war invalid. With the coming into force of this law, however, the following groups are entitled to consideration for minimum-employment programmes: disabled workers recognized by the Commission technique d’orientation et de réinsertion professionnelle (COTOREP), victims of occupational accidents and diseases receiving a pension and suffering from a permanent disability of at least 10%, recipients of civilian disability allowances, former members of the armed forces and other recipients of military disability allowances. COTOREP is responsible, under the common law system, for the recognition of disabled status.
On the other hand, the actual allowances provided by the three regimes differ widely. Disabled persons benefiting from the common-law system receive what is essentially a disability pension from the social security system and a complementary allowance to bring their total benefit up to the adult disabled pension level (as of 1July 1995) of FF 3,322 per month. The amount of the state pension received by war invalids depends on the degree of disability. Finally, the monthly amount (or a lump-sum payment if the permanent disability is below 10%) received by victims of occupational accidents and diseases from the social security system depends on the recipient’s degree of disability and previous salary.
The eligibility criteria and amounts of these allowances are entirely different in each system. This leads to significant differences in the way individuals with disabilities of different organs are treated, and to anxiety that may interfere with rehabilitation and social integration (Bing and Levy 1978).
Following numerous calls for the harmonization, if not unification, of the various disability allowances (Bing and Levy 1978), the Government established a task force in 1985 to study solutions to this problem. To date, however, no solution has been forthcoming, in part because the different goals of the allowances constitute a serious obstacle to their unification. Common-law allowances are subsistence allowances—they are intended to allow recipients to maintain a decent standard of living. In contrast, the war disability pensions are intended to compensate for disabilities acquired while in national service, and allowances paid to victims of occupational accidents and diseases are intended to compensate for disabilities acquired while earning a living. These last two allowances are therefore generally significantly higher, for a given level of disability, than those received by individuals with disabilities that are either congenital or resulting from non-military, non-occupational accidents or illnesses.
Effect of Official Status on Assessments of the Degree of Disability
Different disability-compensation regimes have evolved over time. This diversity is reflected not only in the different allowances each pays to disabled persons but also in each system’s eligibility criteria and system for evaluating the degree of disability.
In all cases, eligibility for compensation and evaluation of the extent of disability is established by an ad hoc committee. Recognition of disability requires more than a simple declaration by the applicant—applicants are required to testify before the commission if they desire to be granted official status as a disabled person and receive eligible benefits. Some people may find this procedure dehumanizing and counter to the goal of integration, since individuals who do not wish to have their differences “officialized” and refuse, for example, to appear before the COTOREP, will not be granted official disabled-person status and will thus be ineligible for occupational reintegration programmes.
Disability eligibility criteria
Each of the three regimes relies on a different set of criteria to determine whether an individual is entitled to receive disability benefits.
The common-law regime pays disabled persons subsistence allowances (including the adult disability allowance, a compensatory allowance, and the educational allowance for disabled children), to allow them to remain independent. Applicants must suffer from a serious permanent disability—an 80% disability is required in the majority of cases—to receive these allowances, although a lower level of disability (of the order of 50 to 80%) is required in the case of a child attending a specialized institute or receiving special education or home care. In all cases, the degree of disability is evaluated by reference to an official disability scale contained in Appendix 4 of the Decree of 4 November 1993 concerning the payment of various allowances to disabled persons.
Different eligibility criteria apply to applicants for disability insurance, which, like the common-law allowances, includes a subsistence component. To qualify for this pension, applicants must be receiving social security and must suffer from a disability that reduces their earning capacity by at least two thirds, that is, that prevents them from earning, in any occupation, a salary greater than one third of their pre-disability salary. The pre-disability salary is calculated on the basis of the salary of comparable workers in the same region.
There are no official criteria for the determination of eligibility, which instead is based on the individual’s overall situation. “The degree of disability is evaluated on the basis of residual fitness for work, overall condition, age, physical and mental faculties, aptitudes, and occupational training”, according to the social security law.
As this definition makes clear, disability is considered to include the inability to earn a living in general, rather than being limited to physical disability or the inability to exercise a given occupation, and is evaluated on the basis of factors likely to affect the occupational reclassification of the individual. These factors include:
- the nature and severity of the disability, and the applicant’s age, physical and mental faculties, aptitudes, occupational training and previous occupation
- the applicant’s residual fitness for work relative to the workforce in his or her region of residence.
To be eligible for specific occupational reintegration programmes, disabled adults must satisfy the following legal criterion: “a disabled worker is any person whose ability to obtain or maintain a job is reduced in fact as a result of inadequate or reduced physical or mental capacities”.
This definition was greatly influenced by the Vocational Rehabilitation of the Disabled Recommendation, 1955 (No. 99) (ILO 1955), which defines a disabled person as “an individual whose prospects of securing and retaining suitable employment are substantially reduced as a result of physical or mental impairment”.
This pragmatic approach nevertheless leaves room for interpretation: what does “in fact” mean? What is the standard to be used in determining whether fitness for work is “inadequate” or “reduced”? The absence of clear guidelines in these matters has resulted in widely divergent evaluations of occupational disability by different commissions.
To accomplish their primary goal of reparation and compensation, these regimes pay the following allowances and pensions:
- War disability pensions are based on the degree of purely physical disability, as evaluated by experts. Permanent disabilities of at least 10 and 30% are generally required for injuries and diseases, respectively. The degree of disability is evaluated using the official disability scale (Decree of 29 May 1919).
- In the occupational accident system, victims of occupational accidents and diseases suffering from a permanent disability receive either a lump-sum payment or an allowance.
The degree of permanent disability is established using an official disability scale that takes into account the nature of the disability, and the applicant’s general condition, physical and mental faculties, aptitudes and occupational qualifications.
Disability evaluation scales
While eligibility for each regime’s benefits depends on administrative decisions, the medical evaluation of disability, established through examination or consultation, remains critically important.
There are two approaches to the medical evaluation of the degree of disability, one involving the calculation of compensation on the basis of the degree of permanent partial disability, the other based on the reduction in fitness for work.
The first system is used by the war disability system, while the occupational accident and common-law systems require the examination of the applicant by the COTOREP.
The degree of permanent partial disability in war invalids is established using standards contained in the official disability scale applicable to cases covered by the Code des pensions militaires d’invalidité et victimes de guerre (updated 1 August 1977 and including the scales of 1915 and 1919). For the victims of occupational accidents, a scale of occupational accidents and diseases established in 1939 and revised in 1995 is used.
The classification systems used in these two regimes are organ- and function-specific (such as blindness, renal failure, cardiac failure) and establish a level of permanent partial disability for each type of disability. Several possible classification systems for mental disability are suggested, but all of them are imprecise for these purposes. It should be noted that these systems, apart from their other weaknesses, may assess different levels of permanent partial disability for a given disability. Thus, a 30% reduction of bilateral visual acuity is equivalent to a permanent partial disability rating of 3% in the occupational-accident system and 19.5% in the war- disability system, while a 50% loss is equivalent to permanent partial disabilities of 10 and 32.5%, respectively.
Until recently, the COTOREP used the disability scale established in the Code des pensions militaires d’invalidité et victimes de guerre to determine compensation and benefits such as disability cards, adult disability allowances, and third-party compensatory allowances. This scale, developed to ensure fair compensation for war injuries, is not well suited to other uses, especially to birth rate. The absence of a common reference has meant that different sittings of the COTOREP have arrived at significantly different conclusions concerning the degree of disability, which has created serious inequities in the treatment of disabled persons.
To remedy this situation, a new scale of deficiencies and disabilities, which reflects a new approach to disability, came into force on 1 December 1993 (Appendix to Decree No.93-1216 of 4 November 1993, Journal Officiel of 6 November 1993). The methodological guide is based on concepts proposed by the WHO, namely impairment, disability and handicap, and is used primarily to measure disability in family, school and occupational life, regardless of the specific medical diagnosis. While the medical diagnosis is a critical predictor of the condition’s evolution and the most effective case management strategy, it nevertheless is of limited usefulness for the purposes of establishing the degree of disability.
With one exception, these scales are meant to be only indicative: their use is mandatory for the evaluation of permanent partial disability in recipients of military pensions who have suffered amputation or organ resection. Several other factors affect the evaluation of the degree of disability. In occupational accident victims; for example, the establishment of the degree of permanent partial disability must also take into account medical factors (general condition, nature of the disability, age, mental and physical faculties) and social factors (aptitudes and occupational qualifications). The inclusion of other factors allows physicians to fine-tune their evaluation of the degree of permanent partial disability to take into account therapeutic advances and the potential for rehabilitation, and to counteract the rigidity of the scales, which are rarely updated or revised.
The second system, based on the loss of working capacity, raises other questions. The reduction in working capacity may need to be evaluated for different purposes: evaluation of the reduction in working capacity for the purposes of disability insurance, recognition of the loss of working capacity by COTOREP, evaluation of an occupational deficit for the purposes of recognizing a worker as disabled or placing such a worker in a special workshop.
No standards can exist for the evaluation of the loss of working capacity, since the “average worker” is a theoretical construct. In fact, the whole field of working capacity is poorly defined, as it relies not only on an individual’s inherent aptitudes but also on the needs and adequacy of the occupational environment. This dichotomy illustrates the distinction between the capacity at work and the capacity for work. Schematically, two situations are possible.
In the first case, the degree of the loss of working capacity relative to the applicant’s recent and specific occupational situation must be objectively established.
In the second case, the loss of working capacity must be evaluated in disabled persons who are either not currently in the workforce (e.g., individuals with chronic illnesses who have not worked for a long time) or who have never been in the workforce. This last case is frequently encountered when establishing adult disability pensions, and eloquently illustrates the difficulties that physicians responsible for quantifying the loss of working capacity are faced with. Under these circumstances, physicians often refer, either consciously or unconsciously, to degrees of permanent partial disability for establishing working capacity.
Despite the obvious imperfections of this disability-evaluation system and the occasional medico-administrative contortions it imposes, it nevertheless allows the level of disability compensation to be established in most cases.
It is clear that the French system, involving official classification of disabled persons on the basis of the origin of their disability, is problematic on several levels under the best of circumstances. The case of individuals suffering from disabilities of different origins and who are therefore ascribed multiple official statuses is even more complex. Consider for example the case of a person suffering from a congenital motor disability who suffers an occupational accident: the problems associated with the resolution of this situation can easily be imagined.
Because of the historical origins of the various official statuses, it is unlikely that the regimes can ever be made completely uniform. On the other hand, continued harmonization of the regimes, especially their systems for the evaluation of disability for the purpose of the awarding of financial compensation, is highly desirable.