THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
(represented by Eversheds O'Donnell Sweeney
File Reference: ES/2008/220
Date of Issue: 3rd February, 2011
Equal Status Acts 2000-2008
Equality Officer Decision
(represented by Eversheds O'Donnell Sweeney
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 4th December, 2008 under the Equal Status Acts, 2000 to 2008. On 12th March, 2010, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 6th January, 2011.
1.1 This dispute concerns a claim by the complainant, Dr. X, that he was discriminated against by the respondent on the grounds of his disability in terms of sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 and contrary to sections 4(1) and 5(1) of those Acts in terms of its refusal to allow him an extension to the deadline for the completion of assignments which formed an integral part of the course of study which he had undertaken with this institution.
Summary of the Complainant's Case
2.1 The complainant, Dr. X, was diagnosed in 1985 with Severe Generalised Anxiety Disorder, characterised by chronic free-floating anxiety, obsessional self-doubt, social phobia and panic attacks. By 2006, the complainant had a 21 year history of Severe Generalised Anxiety Disorder and a one year history of quitting permanent salaried employment because of inability to meet industrial deadlines. In 2006, the complainant was additionally diagnosed with clinical depression and from March, 2006 he has been in receipt of Disability Allowance from the Department of Social & Family Affairs. In 2006, the complainant devised plans for both short-term occupational therapy and long term rehabilitation. His goal was to become re-educated as an academic researcher in French linguistics by taking a doctorate at a university in France. To reach the MA-entry standard in this field, he planned to complete the Diploma in French offered by the university, of which he had taken the first half some years previously. The second half consisted of the distance learning course LZX310 Nouvelles Mises au point: French language and society.
2.2 The complainant registered with the respondent for this course on 23 October 2006 and he planned to study from home with internet based multimedia tutorials conducted in French, associated with continuous assessment from February to August, 2007 and final examinations in October, 2007. In 2007, academic evaluation on the Diploma in French course was subject to a range of the university's policies and the total course credit was divided equally between Overall Continuous Assessment Score (OCAS) and the final examination score. The OCAS was determined on the basis of a series of Tutor-Marked Assignments (TMA's) which were completed exclusively in either written or recorded spoken French. There were six TMA's counting for 100% of the OCAS and thus 50% of the total course credit (these six TMA's were called 'summative'). In addition TMA's number 01, 02 and 07 were practice exercises which did not count for credit (0% of the OCAS) and these three were called formative TMA's. The overall series of nine oral and written TMA's was designed to provide a graded intellectual challenge and successive TMA's became more demanding, both quantitatively (with increasing length) and qualitatively (with increasing difficulty) as the academic year progressed.
2.3 The complainant submitted that he was never able to meet any of the deadlines for completion of the TMA's and as the assignments became longer and more demanding he fell further behind schedule. The complainant claimed that his course tutor, Dr. A, was aware of his difficulty in meeting the deadlines for these TMA's and between February and August, 2007 he granted progressively longer deadline extensions to him without insisting that he be formally registered with the university as a disabled student. While suitably accommodated with deadline flexibility, the complainant was able to complete six TMA's with scores in the range 95% to 98%. During this initial period the complainant's academic performance substantially exceeded MA entry standard. The complainant developed an excellent working rapport with Dr. A and after each completed TMA, the Tutor provided highly encouraging detailed written feedback, in French, which greatly helped the complainant in his recovery.
2.4 The complainant submitted that in late August, 2007, the course abruptly ceased functioning as occupational therapy for him and became a source of distress that persisted over the following 12 months. It was explained to the complainant in a tutorial in late August, 2007 that the two end of year TMA's (TMA's 08 and 09) were subject to special regulations and that the Tutor had no authority to grant extensions beyond 1 October, 2007. The complainant was informed that this was an absolute, non-negotiable deadline, to which no extension could be granted in any circumstances. It was further explained to the complainant that for each TMA not submitted by the deadline, the student would automatically receive a score of 0% which would be used in computing a provisional Overall Continuous Assessment Score (OCAS).
2.5 The complainant submitted that he found the deadline of 1 October considerably more difficult than the earlier TMA deadlines, all of which he had failed to meet. He realised that, as and from 1 October, 2007, he would loose the opportunity for 38% of the OCAS as he would be unable to comply with the deadline and in addition, he would lose the opportunity to obtain detailed feedback, in French, from Dr. A. It was explained to the complainant that his provisional OCAS would be subject to review by an independent Examination Board, who would be empowered to make allowances for Special Circumstances such as medically documented illness or disability. The complainant submitted that this meant that accreditation for the two end of year TMA's would be determined instead by an Examination Board provided with evidence of Special Circumstances (in his case, disability). As the findings of the Board could not be pre-judged, the complainant's uncertainty over the process of the Board review then became a trigger for obsessional doubt. The complainant submitted that his recovery was interrupted and his fourth period of Severe Generalised Anxiety began.
2.6 The complainant submitted that he was advised by his course Tutor to have his name entered on the respondent's register of disabled students; however, he submitted that registration as a disabled student would make no difference whatsoever to the absolute deadline for the completion of TMA's 08 and 09. The complainant submitted that he subsequently registered his disability with the respondent and that he sought reasonable accommodation from it in terms of the deadline for the completion of these TMA's. The reasonable accommodation sought by the complainant included a request to suspend his current student registration on the course after TMA06 for that academic year and to allow him complete the remaining elements of the course (i.e. TMA's 07, 08 and 09 and the examination) in the following academic year. The complainant claims that the respondent informed him the deadline was absolute and non-negotiable and that it would not be possible to defer the aforementioned elements of the course as requested. The complainant submitted that his treatment by the respondent caused a serious acute exacerbation of his anxiety disorder in the Autumn of 2007 and the only solution he could find was to transfer his rehabilitation provisionally from the respondent to another university on 28 September, 2007 while pursuing a frustrating, intractable and fruitless appeals procedure with the respondent over the ensuing 12 months.
2.7 The complainant submitted that he entered into a protracted period of correspondence with the respondent regarding this issue during this period; however, he claims that the respondent failed to reply to a number of his letters and that it ultimately failed to put in place any special accommodations that took account of his specific disability in terms of the deadlines for the completion of the final TMA's. The complainant submitted that when the dispute had been stagnating for almost 12 months, he notified the respondent of his intention to refer a complaint to the Equality Tribunal. He stated that the respondent (in its reply to the ES1 notification) offered him permission to submit the two end of year assignments; however, this offer was issued on 27 August, 2008 and demanded the completed assignments be received by 1 October, 2008. The complainant submitted that it would have been impossible for him to complete the two assignments within such a short period of time especially in light of the fact that the respondent did not indicate when it would send him the relevant TMA materials that were necessary to complete the assignments. The complainant stated that this offer left him in the same position that he had found himself in the Autumn of 2007 i.e. facing an absolute deadline which had the potential to exacerbate his disability.
2.8 The complainant submitted that had the respondent made this offer to him in the Autumn of 2007, the difficulties which are the subject of the present complaint could have been avoided. The complainant submitted that when reasonable accommodations were made available, he excelled, but when these accommodations were withdrawn, the resulting stress caused him to fail his course (as a result of non-completion). As a result, it was submitted that the respondent's failure to provide reasonable accommodation to the complainant he was prevented from progressing with his studies and disadvantaged in pursuing his career. The complainant submitted that his problems arose as a result of the respondent's refusal to recognise the specific nature of his disability and to grant him an extension of time as a reasonable accommodation of that disability.
Summary of the Respondent's Case
3.1 The respondent submitted that at no point during his studies was the complainant discriminated against on the grounds of his disability or otherwise. The respondent submitted that the complainant had already completed the first of two courses necessary for its Diploma in French in October, 2005. He registered for the second course, LZX310 Nouvelles Mises au point: French language and society on 23 October, 2006. This course required the complainant to study from home with internet based multimedia tutorials and consisted of continuous assessment from February to September, 2007 with a final examination in October, 2007. The continuous assessment element of the course was based on a series of tutor marked assignments (TMA's) completed in either written or spoken French. The respondent submitted that there are nine TMA's on the course with three of these being formative as they did not qualify as credit for the Overall Continuous Assessment Score (OCAS).
3.2 The respondent denies the complainant's claim that he was discriminated against on the grounds of his disability in terms of its deadline for the submission of the final TMA's 08 and 09 on LZX310. The respondent submitted that this deadline was applied to the complainant in the same manner as it was applied to all other students, including those without a disability, in similar circumstances. The respondent submitted that it is clear from the course literature provided by it to all prospective students that each course has a start date and a finish date. The respondent also sets clear deadlines for the submission of TMA's for each course and it submitted that the cut off dates have several legitimate reasons, including that students can pace their studies throughout the period of the course and ensuring that they learn one part of the course before progressing to the next. The respondent submitted that the complainant was fully aware of the deadlines for the TMA element of LZX310 from the start of the course when he was given access to the course materials in which it was clearly indicated that the date for submission of the final TMA's 08 and 09 was fixed as 15 September, 2007.
3.3 The respondent submitted that the complainant was also aware of its policy for the late submission/extension to TMA submission deadlines and that this was clearly outlined in its Assessment Handbook which he was given access to from the outset of the course. The respondent stated that the Assessment Handbook provides that within the period of the course, reasonable flexibility is allowed and students (for reason of illness or other good reason) are able to request extensions to the cut off dates for the submission of certain TMA's with the advance agreement of their tutor and it submitted that the complainant was given a number of extensions during this period, in line with this flexibility policy. The respondent submitted, however, that this flexibility is not available for the final TMA deadline as it applies a strict policy that no extensions can be provided for the final TMA's beyond the absolute cut off date for the relevant course. This is to ensure that scores can be recorded and documentation prepared at the end of each course, thereby ensuring that accuracy of data on which the course results are determined and maintaining a consistent academic calendar.
3.4 The respondent submitted that students are clearly advised in the Assessment Handbook that they must submit the final TMA's on time as no extension to the cut off date for these TMA's will normally be allowed. In exceptional circumstances, an extension may be possible but even where this is possible, they cannot be granted beyond the absolute cut off date for the relevant course. The respondent submitted that the absolute cut off date for TMA's 08 and 09 was 1 October and students are advised of this in the Assessment Handbook. The respondent submitted that, in addition to these materials, the complainant's course tutor also advised him in August, 2007 that no extension could be granted beyond 1 October for the final TMA's and that this was also re-iterated in subsequent correspondence to him. The respondent submitted that the Assessment Handbook also provides that all students who are prevented from submitting any TMA's are permitted to inform the Examination and Assessment Board for the relevant course of this fact and give them their reasons (i.e. the Special Circumstances Procedure). In such circumstances, the Board has the discretion as to which grade of pass will be awarded in such circumstances. The respondent submitted that the complainant was advised of this procedure on numerous occasions.
3.5 The respondent also submitted that the complainant was not denied access to feedback reports for the final TMA's because of discriminatory treatment. It stated that the complainant failed to receive feedback reports because he failed to submit the TMA's within the timeframe for the submission. In addition, the respondent submitted that the course was never intended to function as occupational therapy for the complainant. The respondent accepts that it had a duty to provide reasonable accommodation of the complainant's disability in relation to his participation in the course but it rejects any suggestion that it was under any obligations to provide a programme of rehabilitation for him.
3.6 The respondent rejects entirely the complainant's claim that it refused or failed to provide reasonable accommodation to the complainant, as a person with a disability, in terms of his participation in the course. The respondent submitted that it did all that was reasonable within the meaning of section 4 of the Equal Status Acts to accommodate the complainant's needs by providing him with special treatment to complete the course. The respondent submitted that the complainant did not declare his disability until late August, 2007; however, notwithstanding this failure to declare his disability, the complainant was given a number of TMA extensions (TMA's 01 to 05) by his course tutor in line with its Assessment Handbook. The respondent submitted that after the complainant declared his disability in late August, 2007, he was provided with its disability booklet and he was given assistance to register his disability formally. At this point the respondent's Regional Office also made every possible accommodation for the submission of the complainant's TMA's and final examination within the parameters of its policies. The complainant was granted exceptional permission to submit TMA 06 seventy eight days after the normal submission date and he was provided with advice about deferring the final examination from 2007 to 2008.
3.7 The respondent accepts that the complainant was advised that it was not possible to extend the deadline for the final TMA's for the course (which was a strict policy applied to all students) but it submitted that he was informed that it would accommodate his disability by deferring his final examination to April, 2008. In addition, the complainant was advised that he could use the Special Circumstances Procedure to request the Examination and Assessment Board to award an appropriate result having taken into account his disability and the other marks that he had previously obtained. The respondent submitted that the complainant was further accommodated by reinstating him on the course on 3 October, 2007 after he had requested official cancellation of his registration on 28 September, 2007 and it allowed him to continue with his request to defer the final examination until April, 2008.
3.8 The respondent submitted that the complainant had enquired about a pilot project which was aimed at allowing students encountering difficulties with their studies to "interrupt" their course. Under this project, students resuming their course could carry over previously awarded TMA scores and restart the course at the point at which they interrupted it. The respondent stated that it advised the complainant that unfortunately course LZX310 was not part of the pilot scheme; however, having reviewed the complainant's circumstances in August, 2008 and considering the accidental failure to respond to a number of his letters earlier that year, the respondent offered the complainant a further opportunity to complete the course. As part of this offer, the respondent granted the complainant exceptional permission to submit the final two TMA's (08 and 09) from the 2008 presentation of the course by the final cut off date of 1 October, 2008. The complainant was advised that no extension to this final date could be considered but that if his ill health prevented him from completing the TMA's by that date, the Special Circumstances Procedure was available to him. The respondent rejects the complainant's claim that the deadline for this offer was implausible and it stated that the course material would have been delivered to the complainant within a few days had he confirmed at that juncture that he was willing to accept the offer. The respondent stated that the complainant failed to avail of the special accommodation that it had offered in this regard.
3.9 The respondent accepts that it failed to reply to a number of the complainant's letters during the early part of 2008 (namely his letters dated 3 January, 22 January and 18 February). The respondent submitted that these letters were reviewed and a response from the Head of Examinations and Assessment was prepared but unfortunately due to a clerical error, it was not sent to the complainant. The respondent denies that this failure was in any way discriminatory and it stated that it subsequently apologised to the complainant for this error. The respondent stated that it subsequently sent four detailed letters to the complainant on 21, 27 and 28 August, 2008 to address his various comments and in an effort to rectify the error of failing to respond to the aforementioned correspondence, it offered him a further opportunity to complete the course (as detailed in para. above).
3.10 In summary, the respondent submitted that during the complainant's registration on course LZX310 that it communicated fully with him in relation to the final TMA deadline, the procedure for deferring the final examination and the special circumstances procedure. It submitted that this was a more frequent interaction than is usual with a student, but that it was done to accommodate his disability and to address the concerns that he had raised. In short, the respondent submitted that it provided reasonable accommodation to the complainant by offering him a series of final examination deferrals and exceptional permission to transfer his previous TMA scores to a new academic year; however he failed to avail of these accommodations and voluntarily withdrew from the course.
Issues of Jurisdiction
4.1 The respondent raised two separate issues in relation to the jurisdiction of the Tribunal to investigate the substantive allegations of discriminatory treatment that have been made by the complainant in the present case.
Summary of Respondent's case in relation to issues of jurisdiction
4.2 Firstly, the respondent submitted that the claim should be struck out on the basis that binding settlement terms were concluded with the complainant on 9 July, 2010 through the legal representative who was acting on his behalf at that juncture (but has subsequently ceased to act in that capacity). The respondent submitted that the complainant engaged a solicitor and settlement terms were agreed with his solicitor and confirmed in open correspondence. The respondent submitted that it is established that legal advisors have implied ostensible legal authority to settle proceedings on behalf of their clients. The respondent relied upon the cases of Waugh -v- Clifford and Sons Limited and Another and Laura Barrett and Joseph Barrett -v- WJ Lenehan and Co. Limited in support of its argument in relation to this issue.
4.3 The respondent also submitted that it is domiciled in the United Kingdom and that the complainant purchased the service at issue in the present case whilst he was also domiciled in the United Kingdom. The respondent submitted that the United Kingdom rather than Ireland is the correct jurisdiction for this complaint and accordingly, it submitted that the Equality Tribunal does not have any jurisdiction to investigate the complaint under the Equal Status Acts. The respondent referred to the provisions of Article 15 of Council Regulation (EC) No. 44/2001 in support if its argument in relation to this issue.
Summary of Complainant's case in relation to issues of jurisdiction
4.4 The complainant disputes the respondent's contention that he entered into, or concluded, a binding settlement agreement in relation to the present case. The complainant accepts that there were discussions between the legal representative (who was acting on his behalf on 9 July, 2010) and the respondent's legal representative in relation to a proposed settlement agreement. However, he claims that he was not in agreement with the proposed terms of the settlement and therefore, he refused to sign the draft settlement agreement which had been drawn up by the respective legal representatives of both parties. The complainant stated that he was informed in writing by his legal representative that the terms of the proposed settlement would not be binding until the agreement document was signed by both parties.
4.5 The complainant also disputes the respondent's contention that the present complaint has been initiated in the wrong jurisdiction or that the Equality Tribunal does not have jurisdiction to investigate the complaint under the Equal Status Acts, 2000 to 2008. The complainant submitted that he was domiciled in Ireland when he registered for, and purchased access, to the course of education being provided by the respondent. The complainant submitted that the service provided by the respondent is made available to persons who reside in this jurisdiction and therefore, the respondent should be obliged to comply with any legislation in this jurisdiction that governs the manner in which such services are provided (i.e. in the present case this legislation being the Equal Status Acts.)
Conclusions of the Equality Officer in relation to issues of jurisdiction
4.6 The first issue of jurisdiction raised by the respondent relates to its contention that the parties entered into, and concluded, a binding settlement agreement in relation to the present case. The respondent has relied upon the case of Waugh -v- HB Clifford & Sons and it has argued that it was held in this case that a solicitor has ostensible authority as between himself and the opposing litigant to compromise the action. Firstly, I wish to state that I do not dispute the respondent's contention that a solicitor has ostensible authority to compromise an action on behalf of its client. However, in considering this issue, I have also taken note of the High Court judgement of Smyth J. in the case of Sunday Newspapers -v- Kinsella which set out a number of key principles to be followed in the context of severance agreements purporting to compromise entitlements under the Protection of Employees (Fixed Term Workers) Act, 2003. In this judgement Smyth J. emphasised that whether such rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent is crucial if the compromise is to be upheld. Also, in reaching the decision on the waiver, Smyth J. found there was no evidence in the decision of the Labour Court that it had examined the course of negotiations so as to ascertain what was intended.
4.7 Having regard to the foregoing, I am of the view that it is necessary to consider the nature of the negotiations that took place between the legal representatives of both parties in order to decide whether or not a binding settlement agreement was concluded. It is clear from the evidence adduced that there was correspondence by way of e-mail between the legal representatives regarding the proposed terms of the settlement which culminated with a written settlement agreement being drafted that contained the terms of the proposed settlement. In this regard, I have taken note of the contents of an e-mail sent by the complainant's solicitor to the respondent's solicitor on 9th July, 2010 which concluded as follows: "Can you give me final settlement agreement with your amendments incorporated for signature by my client". The respondent's solicitor replied by e-mail on the same date and stated "Clean version attached. If you get your client to sign in duplicate and forward to me, I will get the two copies countersigned by my client and return to you with the settlement monies". The complainant's solicitor subsequently wrote to him on 12th July, 2010 enclosing a copy of the settlement agreement for his signature. In this letter it was clearly articulated to the complainant that "this settlement agreement is not binding until signed by both parties" .
4.8 It is clear from the evidence adduced that the complainant did not subsequently sign the draft settlement agreement after having considered the terms of the proposed settlement as presented in the document. I am satisfied that it is clearly implicit from the wording contained within the aforementioned correspondence between the parties during the course of negotiations that the settlement of this case was ultimately contingent upon the complainant and respondent signing the draft settlement agreement which had been negotiated by the respective legal representatives. It was accepted that neither the complainant nor the respondent subsequently signed the proposed settlement agreement and in the circumstances, I find that the parties did not conclude a binding settlement agreement in relation to the present case.
4.9 The respondent has also submitted that the Tribunal does not have jurisdiction to investigate the present case on the basis that both the complainant and the respondent were not domiciled within the state when he initiated the purchase of the services in question. In considering this issue, I accept the complainant's evidence that he was, in fact, domiciled within the Republic of Ireland when he registered for the course of study with the respondent. Having regard to the provisions of Articles 5 and 15 of the Council Regulation (EC) No. 44/2001, I am satisfied that the complainant is entitled to bring proceedings against the respondent in relation to the present matter in the courts of the EU country in respect of which he was domiciled i.e. Republic of Ireland. Accordingly, I find that I do have jurisdiction to investigate the present complaint under the Equal Status Acts.
Conclusions of the Equality Officer in relation to the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 In the present case, the complainant has Severe Generalised Anxiety Disorder and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. I note that this issue was not disputed by the respondent. The complainant has claimed that he was discriminated against by the respondent in terms of the requirement to submit the final course Tutor Marked Assignments (TMA's) within specified time deadlines. The complainant claims that he was unable to comply with the requirement to meet these deadlines because of the nature of his disability with the result that he was ultimately unable to complete the course of study which he had embarked upon with the respondent. In order for the complainant to raise an inference of direct discrimination in the circumstances of the present case, it must be demonstrated that the treatment he received in terms of the requirement to submit the final TMA's was less favourable than that which was afforded to another student, in similar circumstances, who either did not have a disability or who had a different disability.
5.3 Having regard to the evidence adduced, I am satisfied that the requirements imposed by the respondent in terms of the deadlines for the completion and submission of TMA's were applied uniformly to all students who were participating in the course LZX310. In coming to this conclusion, I have taken into consideration the course literature that is provided to students (including the Assessment Handbook) and it is clear that the requirement to submit TMA's within certain deadlines is applied uniformly to all students. The complainant has not adduced any evidence from which I could reasonably conclude that he was subjected to less favourable treatment on the grounds of his disability in terms of the requirements to requirement to submit the final course TMA's within the stated deadlines. In the circumstances, I find that the complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability contrary to the provisions of section 7(2) of the Equal Status Acts.
5.4 In the case of a complaint being made on the disability ground, consideration must be also given to the provision of reasonable accommodation. Section 4 of the Equal Status Acts states as follows:
"4-(1) For the purposes of this Act discrimination includes a refusal or 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 difficulty for the person to avail himself or herself of the service.
4-(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.."
This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability by providing him with special facilities or measures to access its services.
5.5 The complainant has claimed that the respondent has failed to provide reasonable accommodation for his specific disability in terms of its refusal to allow him to extend the deadlines for the completion of the final TMA's on course LZX310. The complainant claims that the respondent's failure to provide reasonable accommodation resulted in him being unable to complete the course of study which he had embarked upon with the respondent. The respondent denies the claim that it failed to provide reasonable accommodation to the complainant within the meaning of section 4 of the Acts and it contends that it provided a wide range of special facilities and measures in order to accommodate his disability and thereby facilitate his participation and ultimate completion of the course.
5.6 In considering this issue, I have taken note of the special facilities and measures which the respondent stated that it provided for the complainant in order to facilitate his participation in the course which included:
when the complainant declared his disability in August, 2007 he was advised and given assistance by the respondent in terms of the registration of his disability.
he was granted exceptional permission to submit TMA 06 seventy eight days after the normal submissions date.
he was provided with advise about deferring the final examination for the course LZX310 from 2007 to 2008 after he had made known the difficulties in completing the course which arose because of his disability.
he was advised that, in the event he was unable to complete the final course TMA's, that he could have recourse to the Special Circumstances Procedure to ask the Examination and Assessment Board to award an appropriate result having taken into account his disability.
it allowed the complainant to be reinstated on the course on 3rd October, 2007 after he had requested the cancellation of his registration and it allowed him to continue with his request to defer the final examination until April, 2008.
after reviewing the complainant's circumstances in August, 2008 and having taken into consideration the accidental failure to respond to a number of his letters, it offered the complainant a further opportunity to complete the course in October, 2008 by granting him exceptional permission to submit the final two TMA's by the final cut off date of 1 October, 2008.
5.7 I accept the respondent's evidence that the abovementioned special facilities and measures were made available to the complainant, as a person with a disability, in order to facilitate his participation and completion of the course of study. The complainant has argued that the aforementioned measures which the respondent put in place were not adequate or sufficient to accommodate his specific disability. In considering reasonable accommodation under section 4 of the Equal Status Acts, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans -v- Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: " ...reasonableness must be judged according to the context of the individual case........ The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations ...... and they are indeed relevant to the decision as to what is reasonable in the particular case.... The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a "reasonable" solution to a problem, not to achieve perfection and not to give in to every demand that is made of it"
5.8 In considering whether or not the respondent has failed in its obligations to provide reasonable accommodation in the circumstances of the present case, I have taken into consideration the comments of Hunt J. that a service provider is not obliged to submit to every wish expressed by a disabled person nor is it obliged to achieve perfection in terms of the provision of special measures or facilities. I accept that the respondent ultimately did not grant the complainant permission to extend the deadline beyond 1 October, 2007 for the completion of the final two TMA's. However, I am satisfied that there were legitimate reasons as to why it was necessary for the respondent to impose this deadline upon the complainant and indeed, all other students that participated in the course. It is clear that any student, such as the complainant, who was not in a position to complete the final TMA's because of illness or disability had recourse to the Special Circumstances Procedure.
5.9 In such circumstances, the Examination and Assessment Board had the discretion to take into consideration the nature of the student's disability and the effect that it had on his/her ability to complete the final TMA's within the required deadlines. It is clear that the Special Circumstances Procedure provided a facility whereby a student who, because of illness or disability, was unable to complete the final TMA's could be awarded an appropriate result by the Examination and Assessment Board. I am satisfied that the complainant was made aware on numerous occasions that he could access this special facility in the event that he was unable to complete his final TMA's; however, he ultimately decided not to avail of this special facility. I am of the view that the provision of this procedure by the respondent and the abovementioned other special facilities and measures which were made available to the complainant clearly amounts to the provision of special facilities within the meaning of the Equal Status Acts in the circumstances of the present case.
5.10 Having regard to the totality of the evidence adduced, I am satisfied that the respondent did, in fact put in place a wide range of special measures and facilities to accommodate the complainant, as a person with a disability, in order to facilitate his participation and completion of the course of study which he had undertaken. Accordingly, I find that the respondent did not fail in its obligation under section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.
5.11 There was evidence adduced that the respondent had failed to respond to a number of letters which the complainant had sent to it during the early part of 2008 (namely his letters dated 3rd January, 22nd January and 18th February) in relation to the subject matter of this complaint. Having regard to the evidence adduced, I accept the respondent's explanation that its failure to respond to these letters at that juncture arose as a result of a clerical oversight and that it subsequently apologised to the complainant for this error. I am satisfied that the respondent's failure to reply to these letters was not in any way motivated by discriminatory intent against the complainant on the grounds of his disability.
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to sections 4(1) and 7(2) of those Acts. Accordingly, I find in favour of the respondent in the present case.
3rd February, 2011