Question 15090 — people with disabilities

Summary

Mr. Sébastien Saint-Pasteur draws the attention of the Minister Delegate to the Minister of Health, Families, Autonomy and Disabled People, responsible for autonomy and disabled people, to the conditions for assessing the substantial and lasting restriction on access to employment in the context of the allocation of the allowance to disabled adults. The practical guide relating to the allocation of the allowance to adults disabled people, distributed in 2017 by the General Directorate of Social Cohesion, is presented as a decision-making tool intended for departmental centers for disabled people to examine situations that could lead to granting or refusing AAH. This guide distinguishes between the AAH known as “AAH-1”, when the disability rate is equal to or greater than 80% and the AAH known as “AAH-2”, when this rate is between 50% and 79%. In this second case, the allocation of the allowance depends on the assessment by the MDPH of the existence of a substantial and lasting restriction on access to employment taking into account the disability. However, the decision tree appearing in particular in the DGCS guide seems to exclude from the benefit of the AAH-2 people with disabilities who would nevertheless meet the criteria making it possible to characterize a substantial and lasting restriction on access. employment, on the grounds that they would be likely, if they were recruited, to exercise professional activity beyond half-time. It thus emerges from this guide that, to be compatible with the granting of the AAH-2, the professional activity carried out or envisaged could not exceed a duration less than or equal to half-time when this limitation results from the disability. This interpretation strongly questions with regard to Article D. 821-1-2 of the Social Security Code. This article defines the conditions allowing recognition of a substantial and lasting restriction on access to employment. It does not make working hours a general criterion for exclusion from AAH benefit. Certainly, 5° of this article provides that certain situations are compatible with the recognition of a substantial and lasting restriction, in particular the exercise of a professional activity in an ordinary environment for a period of less than half-time, since this limitation results exclusively from the effects of the applicant's disability. However, this provision lists situations compatible with the recognition of a substantial and lasting restriction. It cannot be interpreted as excluding, in principle, unemployed people who could, if recruited, exercise a professional activity beyond part-time. Such an exclusion does not emerge either from 2° of article D. 821-1-2, which specifies the cases in which the restriction on access to employment can be regarded as devoid of substantial character, nor from 3° of the same article, relating to the lasting nature of this restriction. Working hours do not appear as an exclusion criterion. 4° defines employment as an activity professional conferring on the person the advantages recognized for workers by labor and social security legislation, without introducing a threshold linked to working time. Under these conditions, the interpretation adopted by the DGCS guide seems to add to the law in force a condition which does not appear in the social security code. It may lead to excluding from the benefit of the AAH-2 people whose disability nevertheless constitutes a major and lasting obstacle to access to employment. This difficulty particularly concerns certain people suffering from psychological disorders, such as bipolar disorders, or neurodevelopmental disorders. These people may encounter great difficulties in accessing employment, including when the positions concerned do not require a high level of qualification. However, when they manage to be recruited, they can sometimes carry out an activity beyond half-time. This possibility alone should not be sufficient to exclude the recognition of a substantial and lasting restriction on access to employment. The criterion of working hours thus appears to be a restrictive interpretation added by the practical guide, likely to lead to questionable refusals, or even errors of law. If certain requests could be rejected for legitimate reasons, others may have been wrongly rejected on the basis of this interpretation. He therefore wishes to know whether the Government intends to ask the general directorate of social cohesion to modify the practical guide relating to the allocation of the allowance to disabled adults in order to bring it into compliance with article D. 821-1-2 of the social security code. He also wishes to know whether the Government intends to invite the departmental centers for disabled people to re-examine non-final decisions which could have been based on this interpretation, in order to verify that no error of law has been made.

Machine translation from French. The official text remains authoritative.

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