Compensation for failings by the State

Preliminary remarks

The reader will not fail to notice that these two decisions were handed down on exactly the same date this year. They confirm the differences in interpretation by the administrative courts in different regions (in 2024, France had 42 administrative courts in mainland France and 11 in its overseas territories).

Among lawyers, this is commonly referred to as a “rebellion” by courts that do not hand down decisions along the same lines even though cases are brought before them under the same texts, pending a decision by the supreme court – in the cases at hand, the Conseil d’État (France’s highest administrative court).

On the facts

• Lyon Administrative Court, 7 February 2025: Mr A.E, born on 23 July 1999, suffers from severe autism spectrum disorders. The CDAPH (Commission for the Rights and Autonomy of Disabled Persons) of the departmental centre for disabled persons (MDPH) of the Ain took several referral decisions concerning him between 2018 and 2019, designating establishments that could accommodate him;
• Nantes Administrative Court, 7 February 2025: Mr E.B, born on 19 September 2013, suffers from Dravet syndrome (a rare and severe form of epilepsy, with autism spectrum disorders and a significant intellectual disability). By decision of 1 June 2018, the CDAPH of the Loire-Atlantique department referred Mr E.B for care in a medical-educational institute (IME) for the period from 1 June 2018 to 31 August 2023.

Both applicants are young people with disabilities.

On the applicable texts

Article L114-1 of the French Social Action and Families Code (CASF) expressly provides that every person with a disability has a right to the solidarity of the entire national community, which, by virtue of this obligation, guarantees them access to the fundamental rights recognised for all citizens and the full exercise of their citizenship. “The State guarantees equal treatment of persons with disabilities throughout the country and sets multi-year action objectives.”

This statutory provision is cited in both decisions.

On the scope of these two decisions

• The decision of the Lyon Administrative Court: The court rejected the claim for compensation brought by Mr A.E’s mother, who argued that she had been unable to work because she had made up for the inadequate care provided for her son. She had not in fact established, merely by producing a vocational qualification (CAP) in pastry, confectionery, chocolate and ice-cream making, a statement from her sister and her tax notice, that the lack of appropriate care for her son during the period in question was directly and definitely linked to the loss of work she claimed. On the other hand, the lack of care in an appropriate facility from February 2018 until 2025 caused her non-pecuniary loss, which the court rightly assessed at €20,000;
• The decision of the Nantes Administrative Court: The court partially upheld the claims made by young E.B’s parents, on the following grounds. A court-ordered expert assessment of the whole family established the non-pecuniary loss suffered by the father (anxiety, helplessness) and by the two other children, who saw their parents far more taken up with their little brother than with them, which resulted in family tensions. Their non-pecuniary loss was compensated. The parents also showed that numerous written requests had been sent to IMEs between 1 June 2018 and 31 August 2023. Likewise, the court rightly took into account that Mrs B had returned to her job at 80% as soon as her son was placed, whereas her loss of earnings was not accepted given that it was as early as 2 November 2017 (the date on which the child should have started school) that she had asked to work part-time at 60%. The State’s failing was also recognised with regard to the loss of earnings of the mother, who had been working full-time in her job before the child needed to start nursery school.

On the scope of the judgments

It can be observed, as a matter of fact, that the courts take into account employment exercised on a more or less part-time basis, with the production of supporting evidence remaining essential in law, in accordance with the well-known maxim that whoever claims performance of an obligation bears the burden of proof. This applies even to the non-pecuniary loss suffered by the children as a result of their brother not attending school.

On the analysis of case law at first instance and before the Courts of Appeal

First-instance judgments

For example, on 1 February 2023 the Strasbourg Administrative Court recognised the State’s wrongful failure in the medico-social care of a child with autism spectrum disorder, which had caused harm to the child and his parents.

• The Court held that the applicants’ efforts to obtain adequate care, as well as the disruption suffered as a result, justified compensation;
• The parents obtained damages for non-pecuniary loss and for disruption to their son’s living conditions, on the basis of Article L114-1 of the French Social Action and Families Code cited above.

By contrast, on the same day, the same court rejected the claim of the parents of a child with autism spectrum disorder, holding that the lack of appropriate care did not reveal any wrongful failure by the State, since the child had been referred to a localised unit for school inclusion (ULIS) and had been admitted to an appropriate service as soon as places became available.

These decisions illustrate the complexity of applying Article L114-1 CASF, which involves assessing the care provided by the State and whether it meets the needs of persons with disabilities. Whether the State is held liable often depends on demonstrating a wrongful failure to implement the measures needed to guarantee access to fundamental rights and the full exercise of citizenship by persons with disabilities.

In conclusion, Article L114-1 CASF establishes a fundamental right to solidarity and equal treatment for persons with disabilities, but its application in case law shows that holding the State liable requires a precise demonstration of the failure to provide appropriate care.

Court of Appeal rulings

In the ruling of the Rennes Court of Appeal of 8 March 2023, the claimant challenged the decision of the Commission for the Rights and Autonomy of Disabled Persons (CDAPH) concerning the review of the Disability Compensation Benefit for specific costs. The Court confirmed that the occupational therapy costs had been covered in accordance with the texts in force and within the limits laid down by Article L. 245-3 of the French Social Action and Families Code. The request for a review of the PCH to cover actual needs was rejected, the Court finding that the existing coverage complied with the statutory provisions.

In conclusion, in order to establish a wrongful failure by the authorities, the Administrative Court of Appeal examines whether the Administration complied with its legal obligations, whether it took the necessary measures to fulfil those obligations, and whether the claimants demonstrated harm directly linked to a fault on the part of the Administration. The Courts of Appeal thus, like the first-instance courts, carry out a detailed analysis of the circumstances in which the State’s failings are or are not evident.

Families can therefore be advised to step up their efforts and keep written evidence of them. They will likewise need to provide evidence of the reduction in their earnings resulting from the care needed by the child with a disability. They should also be encouraged to document the situation of siblings who may feel neglected, as parents are very focused on the child whose state of health differs from theirs.