The Ombudsman of the Republic of Slovenia found that the provision of Article 17 of the Rules on subsidized student accommodation for students with disabilities, which determines additional points for the recognition of the right to subsidized accommodation for students with disabilities, is unclear and suggested that the Ministry of Higher Education, Science, and Innovation write it more comprehensibly. As of the end of 2023, the Rules have not been updated. The Ombudsman also noted that by the end of 2023, the instructions for filling in the application form for the insurance for persons with disabilities had not yet been brought into line with the legislation in force, although the Ministry of Labour, Family, Social Affairs and Equal Opportunities had already given assurances in June 2023 that it would be done within one month at the latest. The Ombudsman therefore finds a breach of the clarity and specificity of the regulations in the functioning of both ministries and calls on them to deliver on their promises. The slow response to the Ombudsman's letters has also led the Ombudsman to conclude that the activities of the MDDSZ are in breach of the principle of good administration. 

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In the autumn of 2022, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) dealt with two complaints in which the complainants, both students with disabilities, questioned the criteria set out in Article 17 of the Rules on Subsidized Student Accommodation (Rules). In both cases, the students were identified as students with special needs and were issued a placement decision by the National Education Institute Slovenia. Their application for admission to the dormitory was accompanied by certificates from specialist doctors, who even recommended that they each be allocated a single room on the basis of their specific medical conditions. The complainants were not awarded additional points on the basis of the criteria set out in Article 17 of the Rules[1].

The Ombudsman explained to both complainants, in accordance with his competencies, that they had the option to appeal against the decision of the student dormitories with the then Ministry of Education, Science, and Sports (MIZŠ, now the Ministry of Higher Education, Science, and Innovation – MVZI) and that the Ombudsman could not interfere in this procedure. The Ombudsman decided to examine the issue in more detail in accordance with Article 9 of the Human Rights Ombudsman Act (ZVarCP), due to Article 17 of the Rules being limited to students with disabilities whose disabilities are recognized on the basis of the Vocational Rehabilitation and Employment of Persons with Disabilities Act (ZZRZI). Article 10 of the ZZRZI stipulates that, as one of the conditions for a person to obtain the status of a person with disabilities under this Act, the person must be registered as unemployed with the Employment Service of Slovenia (ZRSZ) or be employed. This condition seems to exclude all students with disabilities or all students with long-term illnesses (the nature of which is not such that the students would be absent from their studies for at least three months) who choose to continue their studies immediately after completing their secondary education.

The Ombudsman asked the then MIZŠ to explain why, based on Article 17 of the Rules, additional points for admission to a student dormitory are granted only to those students with disabilities who have been granted the status of a person with disabilities based on the ZZRZI and to those who have been absent from their studies for at least three continuous months, and how, in the opinion of the MIZŠ, students who have the status of a person with disabilities based on the ZZRZI are different from all other students with disabilities. 

The MIZŠ explained to the Ombudsman that, when drafting the text of the Rules, it had received the position of the MDDSZ as the ministry responsible for the comprehensive treatment of persons with disabilities in a ministerial and systemic manner. The MDDSZ stated that a student with disabilities is a student who will be employed after completing their studies and can be counted by the employer as a person with disabilities in the quota system for employing persons with disabilities. The persons an employer may register as a person with disabilities is defined in the Instructions for completing the insurance application form for the disabled[2] (the Instructions), which is a by-law of the ZZRZI, under Article 66 of the ZZRZI. A person who acquires the status of a person with disabilities under the ZZRZI by a decision of the ZRSZ has only one of the possible disability statuses that persons can acquire in the Republic of Slovenia. According to the explanation of the MIZŠ, the wording in Article 17 of the Rules, which refers to the definition of a student with disabilities, does not mean that students with disabilities are only the students who had been granted status by a decision on disability obtained from the ZRSZ. According to MIZŠ, the ZZRZI (or the Instructions) is the only regulation in the Republic of Slovenia that defines who is considered a person with disabilities in Slovenia; therefore, according to the MIZŠ, this means that all students with disabilities who have acquired the status of persons with disabilities on any basis are covered by this definition. In the conclusion of the letter, the MIZŠ stated that it intends to consider a different, more comprehensible wording on the above-mentioned topic in the next revision of the Rules.

On reviewing the Instructions, the Ombudsman found that it is also not (yet) in line with the amended legislation. The laws referred to in the Instructions are the Act on Social Care of Persons with Mental and Physical Impairments (Official Gazette of the SRS, No. 41/83), the Act on Education and Training of Children with Disabilities in Physical and Mental Development (Official Gazette of the SRS, No. 19/76), and the Placement of Children with Special Needs Act (Official Gazette of the RS, No. 54/00, ZUOPP) are no longer in force and have been replaced by the Social Inclusion of Disabled Persons Act (ZSVI), the Placement of Children with Special Needs Act (ZUOPP-1), the Act Regulating the Integrated Early Treatment of Preschool Children with Special Needs (ZOPOPP), and the Act on the Intervention for Children and Youth with Emotional and Behavioural disorders in Education (ZOOMTVI).[3]

Therefore, in February 2023, the Ombudsman drew the attention of the MDDSZ to the need to harmonize the Instructions with the amended legislation, and the Ombudsman proposed to the then MIZŠ to reformulate the wording of Article 17 of the Instructions in such a way that the regulation would be more comprehensible and that the amended Instructions would already apply to the decision on the right to subsidized accommodation for students for the school year 2023/2024.

In a letter dated June 2023, the MDDSZ informed the Ombudsman that it had started drafting new Instructions, which would be updated with the legislation in force and should be ready within one month at the latest. In practice, the Instructions are already being implemented in line with the new legislation and employers have no problems with marking the disability code. However, the MDDSZ has not explained why the Instructions, which were last amended in 2012, have not yet been brought into line with current legislation.

The Ombudsman asked the MDDSZ to inform him of the updated Instructions. By the end of 2023, no such communication had been received, and the revised Instructions had not yet been made public.

As the Instructions should already have been harmonized with the applicable legislation, the Ombudsman finds that the conduct of the MDDSZ violates the principle of clarity and certainty of regulations (legal certainty), which is one of the (sub)principles of the rule of law set out in Article 2 of the Constitution of the Republic of Slovenia. It is also in violation of the principle of good administration, also due to the fact that the response of the MDDSZ was received only after the second urgent appeal, in which the MDDSZ was warned that, in accordance with Article 33 of the ZVarCP, refusal or non-compliance with the Ombudsman's request is considered to be an obstruction of the Ombudsman's work, and the answer was received only two and a half months after the expiry of the deadline for a response. The reply of the MDDSZ also failed to explain the reasons for the delay.

The Ombudsman also notes a violation of the principle of clarity and certainty of the regulations in the work of the MVZI, as the Rules on subsidized student accommodation have not yet been revised, and thus the wording of Article 17 remains unclear. The Ombudsman therefore reiterates his proposal to the MVZI to redraft Article 17 of the Rules in a way that makes it easier to understand. The Ombudsman expects that the amended Rules will apply to the decision on the right to subsidized accommodation for students for the school year 2024/2025. 19.1-25/2022

[1] In accordance with Article 17 of the Rules, a student is granted additional 50 points on the basis of evidence from the competent authorities (centre for social work, specialist doctor, administrative authority) of a difficult social or health situation (a student with a disability under the law governing the employment and rehabilitation of persons with disabilities, a student with at least three months' continuous absence from study activities due to illness or parenthood during the period of study, a student who is a recipient of financial social assistance, a student with at least one parent or guardian unemployed, a student who is without at least one parent or guardian, a student who is in foster care, a student who is a victim of domestic violence) after an individual assessment.

[2] Official Gazette of the RS, Nos. 10/05, 43/05, and 53/12.

[3] Article 3 of the Instructions states, inter alia, that a person with a disability shall be designated as such in the application in the manner prescribed in the Instructions.

-              an insured person who has acquired rights under the Act on Social Care of Persons with Mental and Physical Impairments (Official Gazette of the SRS, No. 41/83),

-              an insured person referred to in Article 5 of the Instructions, who has been classified on the basis of an opinion and a report of an expert commission for the classification of children and adolescents with physical and mental disabilities under Article 11 of the Act on Education and Training of Children with Disabilities in Physical and Mental Development (Official Gazette of the SRS, No. 19/76),

-              an insured person referred to in Article 6 of the Instructions, who has been directed to an education and training programme under Article 21 of the Placement of Children with Special Needs Act (Official Gazette of the Republic of Slovenia, No. 54/00, ZUOPP), provided that they have been directed to education and training programmes and are defined according to the following sections of the Criteria for the Identification of the Type and Degree of Deficits, Obstacles or Disorders of Children with Special Needs (Official Gazette of the Republic of Slovenia, No. 54/03):

            -       I. Children with intellectual disabilities – points a and b of Paragraph 3,

            -       II. Blind and partially sighted children, B) Blind children – points a, b, and c of Paragraph 2,

            -       III. Deaf and hard-of-hearing children, B) Deaf children – points a and b of Paragraph 2,

            -       V. Children with movement impairments – points b (children with mild movement impairments), c (children with moderate movement impairments), and d (children with severe movement impairments) of Paragraph 2,

            -       IX. Children with multiple disabilities.