"The BGG Arbitration Body is a solid tool to file for rights violation complaint at no charge"

The Federal Act on the Equalization of Disabled Persons (Behindertengleichstellungsgesetz), BGG, intends to ensure that people with disabilities don’t face discrimination. However, the Act still has a long way to go before it facilitates equal participation in social life and self-determination, while it also requires content adaptation. That being said, all citizens have the chance to assert their rights. In December 2016, the BGG arbitration body was created to mediate between people with disabilities and so-called public authorities, that is to say, administrative offices and authorities at the federal level such as pension funds or the Employment Agency for example.

REHACARE.com checked with Anne Katrin Lutz and Dr. Rica Werner to find out who can contact the staff in Berlin given applicable circumstances and asked about the arbitration body’s scope of responsibility.

Ms. Lutz, who can contact the arbitration body and under what circumstances?

Anne Katrin Lutz: People with disabilities can refer to the arbitration body if they believe their rights based on the BGG have been violated by a public authority. Both individuals and organizations apply to initiate arbitration proceedings. Proceedings can only be brought against public authorities at the federal level. This includes federal authorities or ministries.

In the social insurance realm, proceedings can be brought against employment agencies, national health insurance and long-term care insurance providers, pension insurance agencies and accident insurance companies for example.

The BGG regulates obligations pertaining to accessibility, the prohibition of discrimination, use of sign language and other communication aids, intelligibility and easy language as well as accessible information technology.

How does the arbitration process work?

Dr. Rica Werner: The arbitration process is generally initiated in written form. Upon receipt of the application, the arbitrator checks jurisdiction and subsequently asks the respective public authority to issue a comment within a month. After receipt of the comment, the applicant is informed and has another opportunity for further comment. The further course of the proceeding is at the arbitrator’s discretion. The objective is for the parties to reach an agreement. In certain cases, the parties may be invited to an arbitration hearing to verbally discuss the matter. At a verbal argument, the arbitrator may offer the use of mediation to facilitate dispute resolution and to reach an agreement. The arbitration proceeding ends when all parties were able to reach an agreement.

If the interested parties are unable to find a solution, the arbitrator submits a written arbitration proposal after a thorough investigation. If the proposal is accepted, the arbitration proceeding ends at this juncture. If the parties subsequently are still unable to reach an agreement, the applicant receives a written notice that the arbitration process has been unsuccessful.

The arbitration body has been established in December 2016. Based on your impression so far, what are the biggest challenges when it comes to the Federal Act on the Equalization of Disabled Persons?

Lutz: With regards to content, the applications received by the arbitration body so far focus on physical and digital accessibility. Typical constellations pertain to lack of access to buildings or websites, a lack of accessible communication by public authorities in social media and apps that are inaccessible to blind or visually impaired people. Other applications were directed at private corporations with public authority involvement. Yet other applications related to government-funded projects that prevented the participation of people with disabilities due to a lack of accessibility. There were also administrative proceeding applications pertaining to the provision of participation-related services, where the BGG arbitration body mediated between the petitioners and public authorities.

Associations are also very interested in the arbitration body. Having said that, the percentage of requests for arbitration by associations is so far still relatively low compared to the total number of applications.

Applicants and those seeking advice experience difficulties because they are often unclear about the BGG arbitration body’s responsibilities. The definition of what constitutes a public authority at the federal level (versus regional government authorities) also causes difficulties. Other affected parties wished the arbitration body could also help with rights violations in the private sector. But this would require a change in the Federal Act on the Equalization of Disabled Persons or the General Act on Equal Treatment.

Even if the arbitration body is not responsible, we try to help people by allocating and referring them to the responsible authorities. When it comes to accessibility concerns in the private sector, early experiences have shown that companies are very open to address accessibility concerns. As noted above, applications and requests, which fall under state jurisdiction (for example, as it pertains to inclusive education, severe disability approval, resources for accessible vehicles, handicap parking permits etc.) are being referred to the respective state Ministries of Social Affairs or the state commissioners for matters related to disabled persons by the arbitration body. In some instances, applicants appreciated the extra assistance, while in other cases, people also criticized the limited scope of representation and authority of the arbitration body.

All in all, we draw positive conclusions after the first few months: the setup of the arbitration body is a solid tool to file for rights violation claims according to the BGG at no charge and one that is also already frequently being used by many people.

What does inclusion mean to you?

Dr. Werner: People mustn’t be discriminated against because they have a disability – as stated by the Basic Law for the Federal Republic of Germany, the UN Convention on the Rights of Persons with Disabilities and correspondingly the Federal Act on the Equalization of Disabled Persons. For us, inclusion means that people with or without disabilities live together as a matter of course. Participation in all activities in all areas of life – for instance, at work, free time, at school or when you enter the bus or train – should be possible without the need to overcome any barriers. However, this process doesn’t happen on its own and requires a lot of work by many parties; this refers to the government, companies, and society but obviously also requires the hard work of each individual. Our objective as an arbitration body is to eliminate obstacles. In doing so, our work also helps to implement inclusion.