under article 5 of the CRPD and s 19 of the New Zealand Bill of Rights Act 1990. This different treatment occurs even if the disability manifests in the same way.13 Moreover, the requirement in the DSS eligibility criteria for the presence of an intellectual disability results in those with impaired intellectual and adaptive function due to FASD being funded for DSS, while those with equivalent disability due to executive and adaptive brain impairment caused by FASD not receiving funded support. Given the impacts of both on the person’s life and the requirement for support, it is unclear why such a distinction is made. As a result of this arbitrary distinction, many people with FASD, and their whānau and caregivers, cannot access support. The eligibility criteria must be changed so that persons with a probable FASD diagnosis alone can access funded supports once they are assessed as needing them. This change is fundamental to meeting Aotearoa New Zealand’s commitment under article 5 of the CRPD to promote equality and eliminate discrimination on the basis of disability, and to take all reasonable steps to ensure reasonable accommodation is provided. 13. Excluding those with FASD from DSS eligibility, with the exception of CDS, means they are denied the early intervention that is key to better outcomes and the realisation of other rights under the CRPD. While some early intervention services are available through CDS, more needs to be done to improve CDS access, especially for those with mild to moderate needs, and to build CDS capacity and capability.14 Early intervention and supports are recognised as part of the rights to education and health services for disabled people (including disabled children and their whānau).15 Eligibility to access the appropriate supports is essential to facilitating the full enjoyment of the rights of disabled persons, including the rights to live independently and be included in the community and all aspects of life, and the right to work on an equal basis with others.16 Early intervention may prevent further substantial costs incurred in relation to persons affected by FASD within the provision of healthcare (including healthcare for whānau caregivers who suffer poor health outcomes), social services, education, and the criminal justice system. If all DSS were accessible for whānau affected by FASD, it could increase knowledge and demand for training about supporting people with FASD. 14. When viewed through a social model of disability, consistent with the definitions contained in the CRPD, there is also no basis for the MoH to deny access to DSS for other impairment types (for example, those living with attention deficit hyperactivity disorder, fetal anticonvulsant syndrome, myalgic encephalomelitis as well as a range of rare disorders), where DSS are appropriate services to meet a person’s needs.17 Recognition of FASD within the eligibility criteria for DSS could initiate a staged approach toward achieving greater equity for those who 13 14 15 16 17 For example, a person with ASD whose impairment may manifest or be labelled as behaviour problems will be able to access DSS, whereas a person whose impairment manifests in the same way but was caused by FASD will not. Note the need to improve CDS has been acknowledged by MOH and is part of the CDS Improvement Programme. Articles 23(3) and 25(b). Articles 19, 26 and 27. The Commission acknowledges that in some instances people from these other group may need more specialist general and mental health services. 6