The Superior Court of Justice of the Basque Country (TSJPV) has endorsed the decision of the Vitoria City Council to exclude Aimar, a 21-year-old young man with autism spectrum disorder (ASD), from a public employment offer for people with intellectual disabilities. The Vitoria City Council allowed him to take the exams provisionally but did not grade them nor accept Aimar on the list of admitted candidates. The family of the young autistic man went to court and, last October, a judge in Vitoria annulled Aimar’s exclusion and ordered the City Council to correct the tests. The young man obtained a score that allowed him to take up his position as a civil servant, as a service assistant, in March. The Vitoria City Council appealed that judicial decision before the TSJPV, which sided with the institution. The young man’s family will appeal to the Supreme Court.
In the ruling, the Basque Superior Court points out that the young man’s exclusion was “an administrative action in accordance with the law” since an intellectual disability of 33%, which was the requirement established in the opposition bases, was not proven. The young man had a recognized psychic disability of 40%, diagnosed with Asperger syndrome, and later it was increased to 49%, without specifying the type of disability.
The previous verdict that had annulled the young man’s exclusion argued that the opposition bases did not comply with the legislation in force since 2022. According to the Vitoria judge, Royal Decree 888/2022, of October 18, does not include the concept of intellectual disability as a type of disability, so the City Council should have admitted all candidates with a disability greater than 33% “with impairment of mental functions, without requiring it to be intellectual.” That first sentence considered that Aimar had proven, “notably and sufficiently,” that his disability “presented impairment of mental functions.”
In that regard, Aimar’s lawyer argued that the legislation does not establish a specific article to classify the different types of psychic, sensory, and intellectual disabilities, and only indicates the degree of disability, with the purpose of “avoiding discrimination between different types of disabilities.”
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However, the TSJPV agrees with the Vitoria municipal government that the 2022 decree “separately distinguishes intellectual disability from other disability situations, such as the one diagnosed in the candidate: autism spectrum disorder.” The Superior Court considers that allowing access to the opposition for people with a disability “in a generic way” could be “discriminatory” because “probably, not all people with impairments of mental functions have the same or similar group of abilities to perform professionally or take the access tests.”
The TSJPV ruling indicates that no reproach can be made to the Vitoria City Council for having opted for people with intellectual disabilities, “since it will have assessed the profile of people with such disability for the performance of the positions offered in the call.” The court says, quoting one of the phrases from Aimar’s lawyer’s argument, that it is not about “throwing crumbs to the crowd so that they, hungry, fight,” but about “ordering access to public service in a certain way to specific positions of a specific group.”
The court also recalls that the bases, considered erroneous by the trial court ruling, were not appealed for violation of fundamental rights and that, therefore, “constitute a firm and consented administrative act.” The ruling decrees the exclusion of Aimar from the list of admitted candidates in the selection process. Sources from the Public Function department of the Vitoria City Council have told this newspaper that the young man will have to leave his civil servant position, which will be taken by the next person on the opposition list, although it has not been specified when the change will occur.
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