CRPD/C/GC/6
the duty to provide reasonable accommodation is not limited to situations in which the
person with a disability has asked for an accommodation or in which it could be proved that
the alleged duty bearer was actually aware that the person in question had a disability. It
should also apply in situations where a potential duty bearer should have realized that the
person in question had a disability that might require accommodations to address barriers to
exercising rights.
25.
The duty to provide reasonable accommodation in accordance with articles 2 and 5
of the Convention can be broken down into two constituent parts. The first part imposes a
positive legal obligation to provide a reasonable accommodation which is a modification or
adjustment that is necessary and appropriate where it is required in a particular case to
ensure that a person with a disability can enjoy or exercise her or his rights. The second part
of this duty ensures that those required accommodations do not impose a disproportionate
or undue burden on the duty bearer.
(a)
“Reasonable accommodation” is a single term, and “reasonable” should not
be misunderstood as an exception clause; the concept of “reasonableness” should not act as
a distinct qualifier or modifier to the duty. It is not a means by which the costs of
accommodation or the availability of resources can be assessed — this occurs at a later
stage, when the “disproportionate or undue burden” assessment is undertaken. Rather, the
reasonableness of an accommodation is a reference to its relevance, appropriateness and
effectiveness for the person with a disability. An accommodation is reasonable, therefore, if
it achieves the purpose (or purposes) for which it is being made, and is tailored to meet the
requirements of the person with a disability;
(b)
“Disproportionate or undue burden” should be understood as a single concept
that sets the limit of the duty to provide reasonable accommodation. Both terms should be
considered synonyms insofar as they refer to the same idea: that the request for reasonable
accommodation needs to be bound by a possible excessive or unjustifiable burden on the
accommodating party;
(c)
“Reasonable accommodation” should also not be confused with “specific
measures”, including “affirmative action measures”. While both concepts aim at achieving
de facto equality, reasonable accommodation is a non-discrimination duty, whereas specific
measures imply a preferential treatment of persons with disabilities over others to address
historic and/or systematic/systemic exclusion from the benefits of exercising rights.
Examples of specific measures include temporary measures for countering the low numbers
of women with disabilities employed in the private sector and support programmes to
increase the number of students with disabilities in tertiary education. Similarly, reasonable
accommodation should not be confused with the provision of support, such as personal
assistants, under the right to live independently and be included in the community, or
support to exercise legal capacity;
(d)
“Procedural accommodations” in the context of access to justice should not
be confused with reasonable accommodation; while the latter is limited by the concept of
disproportionality, procedural accommodations are not.
26.
Key elements that guide the implementation of the duty to provide reasonable
accommodation include:
(a)
Identifying and removing barriers that have an impact on the enjoyment of
human rights for persons with disabilities, in dialogue with the person with a disability
concerned;
(b)
Assessing whether an accommodation is feasible (legally or in practice) — an
accommodation that is legally or materially impossible is unfeasible;
(c)
Assessing whether the accommodation is relevant (i.e., necessary and
appropriate) or effective in ensuring the realization of the right in question;
(d)
Assessing whether the modification imposes a disproportionate or undue
burden on the duty bearer; the determination of whether a reasonable accommodation is
disproportionate or unduly burdensome requires an assessment of the proportional
7