Three-year-old J. from Trieben in Upper Styria is one of around 320 children under the age of six with type I diabetes mellitus. Thanks to a blood glucose sensor and insulin pump, he can lead a completely normal life. In kindergarten, however, continuous supervision by a paediatric nurse is vital, as he is of course not yet able to check his blood glucose level himself and administer the necessary amount of insulin or sugar. However, the province of Styria, which is responsible for disability issues, refuses to provide him with this 1:1 care. Reason: Type I diabetes is not a disability, but a chronic disease that can still be controlled.
Several affected families have contacted the Ombudsman Board. Ombudsman Bernhard Achitz cannot understand the authority's rejection: "It is a completely false assessment that type I diabetes is a disease that can be influenced. The claim that the course of the disease can be 'influenced' by controls or therapy is nonsense, as all experts confirm."
Federal law says: children with type I diabetes have a 50 per cent disability
"We only know of complaints like this in Styria. This is due to an unfortunate wording in the Styrian law," said Achitz in the ORF programme "Bürgeranwalt" on 13 December. According to the authorities, diabetes mellitus type I is a chronic disease whose course can still be influenced, and chronic diseases are not disabilities as long as the course of the disease can still be influenced. However, a disability is a prerequisite for the funding of assistance. Achitz: "I cannot understand the rejection of the province of Styria. Laws must be interpreted in such a way that they fit in with the rest of the legal situation. And the federal assessment ordinance clearly states that type I diabetes in children and young people up to the age of 18 is considered a 50 per cent disability. Other Styrian laws recognise this, for example the regulations for school assistance. The Styrian authorities must therefore accept that children with type I diabetes have a disability and therefore have the right to assistance in kindergarten."
Do parents have to pay a fine for ignoring compulsory kindergarten attendance?
Achitz draws attention to an additional problem: compulsory kindergarten attendance applies to all children without disabilities, so according to the legal opinion of the state, this probably also applies to diabetics. There are only exceptions for children with disabilities. This means that if parents are unable to take their children to kindergarten due to a lack of diabetes care, they would probably have to pay a fine.
UN Convention on the Rights of Persons with Disabilities and the Children's Rights Constitution Act disregarded
The UN Convention on the Rights of Persons with Disabilities (UN CRPD), which Austria has signed and which of course also applies to the federal states, does not allow children with a disability or chronic illness to be given fewer educational opportunities than other children. The Federal Constitutional Act on the Rights of Children (BVG Kinderrechte) also stipulates that every child with a disability is entitled to the protection and care that takes account of their special needs. Equal treatment of children with and without disabilities must also be guaranteed in all areas of daily life. "I demand that Styria either interpret its laws accordingly or change the laws," says Ombudsman Achitz.
