illness.”9 This definition covers people with FASD and is consistent with that in article 1 of the CRPD, which references disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” Despite these definitions, the New Zealand Ministry of Health’s (MoH) policy10 - ‘Disability Support Services Operational Policy – DSS Eligibility’ (the Policy) - excludes people with probable FASD alone to access publicly-funded Disability Support Services (DSS), with the exception of DSS Child Development Services (CDS) which are accessible to all children with developmental delay, including from fetal alcohol exposure. The wider range of funded services available through DSS are aimed at supporting living and participating in community but are not available to people with FASD alone. 10. To qualify for a needs assessment to access DSS, other than CDS, a person with FASD must have another (and separate) qualifying impairment such as an intellectual impairment (which affects only 20% of those with FASD).11 They are not eligible for these supports by virtue of probable FASD alone, even though all individuals diagnosed with probable FASD have severe and permanent brain impairment across at least three brain domains among the 9 to 10 domains tested in order to be diagnosed.12 11. This means that people affected by FASD alone are currently excluded from most DSS supports funded by the MoH. Those who are eligible for DSS do not receive services specifically informed by FASD-related needs. The MOH is an important funder of a wide range of DSS services for eligible disabled people under 65 years and, because DSS is not easily available or catered to those with FASD, they are deprived of this central provider of funded services. This Policy is based on a Cabinet decision from 1994 which defined disabled people for the purpose of DSS eligibility as those with physical, sensory and intellectual disabilities. The understanding of neurodevelopmental disabilities, including due to fetal alcohol exposure resulting in FASD, and the needs of people with neurodevelopmental impairments, has expanded considerably since 1994 and this needs to be reflected in future eligibility policies for DSS. This criteria for DSS eligibility was also set prior to the development and Aotearoa New Zealand’s ratification of the CRPD in 2008, but it has not been reviewed and the definition of disability has not been updated since ratification. 12. The result of this Policy is that people are treated differently based on the nature of their disability, and support is made available to some disabled people and not to others. The Commission submits that this is a potential breach of the right to be free from discrimination 9 10 11 12 Section 21(1)(h). Note that from 1 July 2022, DSS will transition to the new Ministry, as discussed further below. The policy excludes eligibility for “… support services needed primarily as a result of behavioural problems (e.g., associated with Foetal Alcohol Syndrome or substance abuse) except where the person has a co-existing disability that meets DSS eligibility criteria (some services are funded by other government agencies, in other situations this is a funding gap)” (p.10). This can be contrasted with the treatment of people with another neurodevelopmental disorder – autism spectrum disorder (ASD). Since 2014, people with ASD have been made eligible for a needs assessment and therefore potential DSS. 5