Equal Status Act 2000-2004
Equality Officer Decision DEC-S2007- 09
T on behalf of his son D (a minor)
R, SAMBA Soccer School
Equal Status Acts 2000-2004- Direct discrimination, Section 3(1)(a)- Disability Ground, Section 3(2)(g), Section 5(1)- Discrimination in relation to service provision-participation in activities
Delegation under the Equal Status Act 2000-2004
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000-2004. In accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to me Mary O'Callaghan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act 2000 -2004. The hearing of the case took place in Dublin on 18th January 2007.
1.1 The complainant is a minor and was 4 years old at the time of the incident complained of herein. The complainant's father on his behalf alleges that he was subjected to discriminatory treatment when he was refused a place on the SAMBA Soccer programme in 2003 because of his disability. He maintains that this treatment is in breach of the Equal Status Act 2000-2004 in terms of Sections 3(2) (g) and 4 and contrary to Section 5 (1) of the Act, i.e. that he was refused access to goods and services because of his disability and that reasonable accommodation was not made to facilitate his attendance.
2. Background to Hearing
2.1 Following the assignment of the case to investigation a hearing was arranged for Thursday 18th January 2007. Notification of this was sent by post to both parties on 24th November 2006 and they were requested to confirm their attendance to the Equality Tribunal. Confirmation of the complainant's attendance was received by fax on 27th November. By 5th January 2007 no response to the notification was received from the respondent. An alternative address to that on file had been located and the notification was re sent to that address. The Tribunal then attempted to contact the respondent by telephone and he was spoken to on 9th January 2007. He was again notified of the hearing on that occasion and he indicated that since the SAMBA Soccer school had ceased trading he did not intend being at the hearing of the complaint on 18th January. It was explained to him that if he did not attend the hearing and the complainant did, the hearing would still go ahead. It was also pointed out the decisions of the Equality Tribunal could be enforced through the courts.
2.2 I am satisfied on the basis of the above that both the complainant and the respondent were on notice of the hearing of this matter.
2.3 On the date of the hearing the respondent was not in attendance. The hearing proceeded as arranged.
3. Summary of the Complainant's Case
3.1 The complainant, D, has a mild form of cerebral palsy which requires him to avail of a walking aid to assist his mobility. He is a sports enthusiast and participates in a variety of sporting activities both through disabled sports and able bodied sports programmes (with minimal assistance). He participates in both individual and team sporting activities. Apart for the particular sports programme under investigation herein, the complainant has not had any difficulty accessing any organised sporting activities and where necessary his parent accompanies him to provide any assistance that is required.
3.2 In June 2003 D's father, T, phoned SAMBA Soccer school to book a place for the complainant on the SAMBA Soccer summer camp. The complainant's brother was already booked on the course as was his cousin. He wished to attend the course with his brother and cousin. The complainant's father was told he could not book his son on the course because of his disability. He later spoke to the respondent R, who is the Managing Director of the SAMBA Soccer School and who told him that the school was not geared up to take "disabled kids" and that their insurance would not allow it. The complainant's father said he was told by the Managing Director that SAMBA Soccer School could not accommodate disabled children in its regular programme but that it did organise a day for special children where activities were arranged for them free of charge. The complainant's father said that he did not believe that this was equal treatment for his son and considered that rather than integrate him into the activities of the programme it only served to segregate him from other children.
3.3 It was T's understanding that children were grouped on the SAMBA Soccer School programme according to age and that if his son were to participate it would be with children in his own age group with whom he felt he was well able to hold his own. He said that he did not believe that any special facilities would have been required for his son and that he would not have participated in elements of the programme where his disability may have posed a problem. In such circumstances his parent would have been there to attend to him. The example of warm up exercises was given, where the participants may have to run around traffic cones, as a skill that his son might have difficulty with but in other programmes he participated in, a parent or coach was able to take him aside and practice other skills with him until he could work with the other children. It had never posed a difficulty or incurred any cost.
3.4 He said that his experience of the Managing Director was that he was not prepared to make any accommodation for his son even after he offered to pay any additional insurance costs that might arise. He said he sought details of the insurance held by the SAMBA soccer school and these were not provided to him. This led him to think that the insurance was not the issue of concern here and as he has his own business, one that would require insurance for customers, he thought it unlikely that disabled people would be excluded from cover by the insurance.
3.5 He said he believed his son was refused access to the programme because of his disability and that the Managing Director was inflexible in relation to accommodating his son's disability when considering accepting him on the programme.
4. Conclusions of the Equality Officer
4.1 (A)Discriminatory Treatment
At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant in this case, T on behalf of D, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that he is covered by the relevant discriminatory ground i.e. in this case the disability ground. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not covered by the discriminatory ground referred to above. He must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if it is to fail.
4.2 I am satisfied from the evidence provided that D does have a disability as defined by the Equal Status Act at Section 2 (1) and therefore he satisfies the first of the criteria outlined above. Furthermore all of the evidence presented both at the hearing and in advance of the hearing points to the fact that D was refused access to the service provided by SAMBA Soccer School when his father sought to enrol him initially and also in his dealings with the Managing Director subsequently. Accordingly the second criterion has been met by the complainant. With regard to the third criterion that of less favourable treatment the evidence has been the complainant's brother and cousin who do not have disabilities were able to enrol on the SAMBA Soccer summer scheme while he was not and I take this to be sufficient to ground the criterion of less favourable treatment. Having satisfied the three criteria set down above the complainant has established a prima facie case of discrimination on the ground of disability. As the respondent failed to attend the hearing no rebuttal was provided and I conclude that the complainant was subjected to discriminatory treatment.
4.3 (B)Reasonable Accommodation
For the purposes of this particular complaint, I am considering it also in the light of Section 4 of the Equal Status Act. In the case of the disability ground, Section 4(1) of the Equal Status Act 2000-2004 states that for the purposes of the Act discrimination includes a refusal or a failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. Section 4(2) sets out that failure to provide such special treatment or facilities shall not be deemed reasonable unless it would give rise to a cost to the service provider other than a nominal cost. Section 4(4) provides an exemption in this regard where to provide such reasonable accommodation to the person could cause harm to the person or others. In considering these provisions I have noted that in this case the evidence has been that the respondent did organise a special day of special children but that this was not an equivalent to enrolment in the Summer camp. With regard to the summer camp, the response to the complainant's father was a refusal of access to D on
the summer camp. While it was stated that the respondent's insurance would not permit the complainant's participation, substantive evidence of this was not provided to the complainant's father when requested. The evidence was also provided that if an additional cost were to arise in providing insurance to allow for the complainant, D's participation his parent would have paid it thereby overcoming the issue of nominal cost to the service provider in Section 4 of the Equal Status Act. The evidence however, has been that no attempt was made to provide any special treatment or facilities to the complainant to allow him to avail of the service provided by the respondent. With regard to any potential for danger that may have arisen from D's participation in the Summer school, the evidence provided has been that no such danger would have arisen and it appears that no particular assessment of D was made by the respondent to enable him to provide a reasonable conclusion regarding the risk arising. I therefore, conclude that no reasonable accommodation was made to enable the complainant to avail of the service.
5. Decision and Redress
5.1 The complainant having established a prima facie case of discrimination on the disability ground where no rebuttal has been provided by the respondent succeeds in his complaint (ES/2003/0605) of discrimination against R, The Samba Soccer School. In such circumstances appropriate redress for the effects of the discrimination may be ordered in accordance with Section 27 of the Equal Status Act 2000-2004. In this case I consider that the appropriate redress is as follows: that the respondent pay the complainant the sum of €750 and that respondent examine the criteria for accepting children on its programmes with the aim of accommodating children regardless of their ability or disability on the full range of SAMBA soccer programmes where this can be achieved at a nominal cost (DEC-S2007-09).
2nd February 2007