The Equality Tribunal
Equal Status Acts, 2000 to 2013
A Mother and Father, on behalf of their Son
A Respondent National School
[Represented by Mason, Hayes and Curran, Solicitors]
File Ref: ES/2013/0007
Date of Issue: 03 December 2013
Keywords: Equal Status - Disability - Failure to provide reasonable accommodation - Equal Status Acts 2000 to 2013, s. 4 (1) and 4 (2) s.7
1. This complaint was referred to the Director of the Equality Tribunal on 29 January 2013 under the Equal Status Acts, 2000-2013 (hereinafter "the Acts"). The respondent was notified of this complaint on 20 November 2013. On 17 July, 2013 the Tribunal received a written submission from the complainant. A responding submission was received from the respondent on 13 September, 2013. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was held on 30 September and 1 October, 2013. Both parties were in attendance at both days of the oral hearing.
This dispute concerns a claim by the complainants, a mother and father on behalf of their son (hereinafter "the complainant") that he was discriminated against by the respondent National School (hereinafter "the respondent") on the disability ground in terms of section 3(2) (g) of the Acts contrary to section 7 of the Acts and by its refusal or failure to do all that is reasonable to accommodate his needs as a person with a disability, contrary to section 4(1) of the Acts.
3.1 At the time of the alleged discrimination, the complainant was a pupil in third class of the respondent primary school, a mainstream national primary school. He is physically disabled in that he has no left forearm or hand, his right arm is short, has no elbow and a club hand with only 4 digits. In addition, the complainant has no right hip, his right leg is 10 cm shorter than his left and he walks with a 10 cm shoe-lift. The complainant has been a pupil in the respondent school for since 2008.
4. Summary of complainant’s case.
4.1 The complainant’s parents submitted that he is unable to dress himself after using the toilet. Writing, opening, closing or carrying items are big challenges for him. He can’t fasten or open his coat and also submitted that there are many occasions where the SNA resource was withheld from him over the last number of years.
4.2 The complainant’s parents submitted that everyday tasks are extremely difficult for him. His pincher motion is weak and this makes writing, lifting, holding items, opening containers and turning pages harder. Furthermore, due to the shortness of his left arm, keeping the page steady for writing or drawing is also difficult and as he has no elbow, he writes with an extended arm and this causes his arm muscle to tire easily. In addition, the complainant needs assistance with any task that requires controlled use of two hands.
4.3 The complainant’s parents submitted that Mrs A, the complainant’s mother, met with the then Principal of the Respondent, Mr Z, prior to the complainant starting school in 2008 and was informed that there were other schools in the area more suited to the complainant’s needs. The complainant’s needs are all physical, and the complainant submitted that they are still at a loss as to the meaning of this statement.
4.4 The complainant’s parents submitted that an assessment of his needs was carries out by Enable Ireland in 2008 and submitted to the Department of Education and Skills (‘the Department’) and to the respondent. The Department allocated a full-time Special Needs Assistance (SNA) to the complainant in 2008 and the respondent shared this allocation with another student at the beginning of 2009.
4.5 The complainant’s parents submitted that there have been many incidents where the complainant was treated less favourably since he started school and these have been dealt with directly with the respondent. However, the reason for filing this complaint revolves around the complainant’s removal from his maths class in September 2012
4.6 The complainant’s parents submitted that he scored above average on the Sigma T Maths Assessment and in September 2012, the school decided to split the maths class according to ability. The complainant was placed in the maths class with the other students from his year who scored above-average. This maths class was located across the hall from the complainant’s main classroom, and was scheduled to take place from 9 am to 10 am each school day.
4.7 The complainant’s parents submitted that despite the Department supplying a SNA for the complainant and the fact that he has a mobile hand-rail that fit around any school toilet, he was sent to this alternative classroom without either support. When he needed to use the toilet, teacher allowed him to use the ones at the end of the classroom. The complainant submitted that it would appear that this teacher did not see any reason why a student with the complainant’s obvious disabilities shouldn’t be sent to the toilet unaided and without his hand-rail. This teacher did not use the internal phone system to summon an SNA to assist the complainant nor did she position herself near the end of the classroom to assist the complainant, instead remaining at the top of the class. The complainant managed to fix his underwear and when the teacher did not come to help, he had to come through the classroom of approximately 15 students with his trousers just above his knees to ask for help. It was submitted that this has had an adverse effect on the complainant and he no longer uses the school toilet during school hours.
4.8 The complainant’s parents submitted that his father, Mr A, spoke to the complainant’s SNA Ms Y and asked her to stay during his maths class, she informed him that this was a decision for the principal to make. Mr A then spoke to Mr Z who initially agreed to the SNA staying with the complaininat. However, later that afternoon, a note arrived home from Mr Z stating “As I was extremely preoccupied with supervision duties when I spoke to you this morning, I had no time to consider your request properly. Having now given it some thought, I regret that it is not possible to give (the complainant) exclusive access to special needs assistance as she has other children in her care also. He has been granted shared access to his SNA resource by the S.E.N.O. and therefore in order to have access to the toilet with the hand rails and to his SNA at all times he will remain within his classroom from now on”
4.9 The complainant’s parents submitted that they called to the school the following morning to clarify the content of this letter and to ask if all the children from the maths class would not move to the complainant’s room. It was submitted that Mr Z indicated that if the complainant wanted access to his SNA then he would have to remain in his main classroom. It was submitted that Mr Z refused to discuss any alternatives to the expulsion of the complainant from the maths class. It was further submitted that the complainant was refused access from 21 September 2012 until8 October 2012 because the principal decided that this was not the best use of SNA resources
4.10 The complainant’s parents submitted that a number of previous incidents had taken place in the school and provided details of those incidents. However, the complainant’s parents also submitted that these matters had been resolved directly with the school at the time of their occurrence.
4.11 The complainant’s parents submitted that the respondent did not provide access to a complaint’s procedure when they requested it and also that a number of weeks later, following the complainant’s return to the maths class, that he SNA was once again withdrawn from him.
4.12 The complainant’s parents submitted that their son is not being allowed to access part of the yard where the basketball court is when other pupils are allowed to do so and that this amounts to discrimination.
5. Summary of respondent’s case.
5.1 The respondent submitted that it is a mainstream primary school which welcomes children of all faith backgrounds in the spirit of accessibility and equality. The school has twenty classes and three dedicated classes for children with Autistic Spectrum Disorder (ASD).
5.2 The respondent submitted that the complainant has been a pupil since August 2008 and since then it has endeavoured to support and facilitate his emotional, social and intellectual development in order to foster his self-esteem and to enable him to make the most of his many talents. The respondent also submitted that the complainant is an above-average student in a number of subjects including maths and it believes that the complainant is confident in the school environment.
5.3 The respondent submitted that although the complainant parents submitted that he was discriminated against and not provided with reasonable accommodation, the complaints are denied in full.
5.4 The respondent denies that the former school principal, Mr Z, said that there were other schools in the area more suited to the complainant’s needs and further that any cursory examination of the school would show that it has no fear of, or adverse attitudes to children with special needs of any kind.
5.5 The respondent submitted that Section 4 of the Equal Status Acts requires it to “do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities” and further submits that the complainant has received all of the SNA supports which were made available to him in a manner appropriate to his needs.
5.6 The respondent submitted that in practice, the situation is as follows: on enrolment, the principal of the school reviews any assessments relevant to the child’s needs in the school and, with the consent of the parents, applies to the Special Education Needs Organiser (SENO) for resources. The SENO examines the assessment he/she receives, bearing in mind the intellectual or physical challenges facing the child. The SENO then decides whether an SNA should be appointed. In the complainant’s case, he has been awarded shared access to a full-time SNA to meet his physical needs during the school day. This means that he has access to a full-time SNA, which he shares with other children. The respondent also submitted that contrary to what the complainant’s parents are suggesting, no child is granted an SNA rather the children with special needs have access to SNA’s. When access to an SNA is granted, consultation would generally take place with the parents, teachers, SNA and any other relevant support group.
5.7 The respondent submitted that in this case, the principal, class teacher and SNA have had meetings with the complainant’s parents, the SENO and others in relation to his progress at school and to discuss and evaluate his needs. The role of the SNA is to provide care assistance, in other words non-teaching assistance, to the child under the direction of the class teacher. The respondent also submits that the class teacher and other children in the class would also be expected to assist a child with special needs from time to time throughout the school day.
5.8 The respondent submitted that when the role of the SNA was first established by the Department of Education and Skills, a ‘one to one’ ratio (SNA to Pupil) would have been fairly common. However, it became apparent to the National Council for Special Education (NCSE) the authority charged with planning and coordinating education support services for children with special education needs, that a ‘ono to one’ ratio had the effect of children becoming over dependant on SNA’s than was otherwise intended. Accordingly, an SNA does no necessarily sit beside or work exclusively with a particular child. Nor is the SNA expected to anticipate or meet every care need of the child. Furthermore, the respondent submitted that it is important for the Tribunal to be aware that the needs of the children change from time to time and in some cases, may diminish. This may require the SENO to have a fresh consideration of his needs.
5.9 The respondent submitted that towards the end of the academic year, a principal will consider SNA allocations and timetables. This may also involve a member of the Learning Support Team or the principal visiting classes to consult with teachers in order to establish ‘high priority times’ and ‘low priority times’ for the children. Generally speaking, the SNA timetable would not be finalised until the following September. Obviously, this involves a balance between the needs of the children and the number of SNA’s available.
5.10 The respondent submitted that unfortunately, it is apparent that the complainant’s parents believe that an SNA should anticipate and pre-empt the complainant’s needs ant the he should have exclusive access to an SNA. While it may be possible for a full time carer to carry out this function, this is not possible given the limitation of the role of an SNA in a mainstream school, who in the complainant’s case is requires to attend to another child in his class. As outlined above, even if the complainant was designated an exclusive SNA, the respondent and indeed the SENO believe that this level of care wold disempower the complainant at a time when by virtue of his age, he is gaining more independence and will soon move to secondary school, a new school environment. It could also have the effect of alienating the complainant from the rest of his peers.
5.11 The respondent submitted that it has allocated the SNA resource appropriately and that in doing so, it has made reasonable accommodation for the complainant’s needs.
5.12 The respondent submitted that in September 2012, it was proposed that Ms X would teach maths for a period of one hour a day to student who achieved a higher than average Sigma T score. In consultation with other staff members, Mr Z decided that the complainant would manage sufficiently for the maths class without his SNA being present in the room with him. Unfortunately, the school did not have the resources to allow both the complainant and the other child with special needs to have an SNA present in their respective classes during this one hour period. It was agreed that Mr X would attend to the complainant’s needs in the same way as an SNA would if the need arose. While the staff believed that the complainant could manage for the hour without his SNA present in the classroom, the decision was made on the understanding that if he desires or requested the assistance of his SNA during this period he would of course have access to the SNA.
5.13 The respondent submitted that when MR A, the complainant’s father, first raised his concern that the SNA was not present during this hour, MR Z initially agreed that the SNA could accompany him to the class. On reflection and bearing in mind the constraints, Mr Z was satisfied that the complainant would be able to manage without the SNA. MR A was not agreeable to this decision and as a result, Mr Z determined that the complainant should remain in his main classroom where the SNA would be present at all times. The complainant’s class was following the same programme of maths albeit at a slightly faster rate,
5.14 The respondent submitted that when the complainant’s parents raised the matter of the complaint procedure with Mr Z, he understood them to have enquired about the process involved in making a complaint to the Department of Education and skills rather than to the Board of Management.
5.15 The respondent submitted that on September 24, 2012, Mrs A contacted the Chairperson of the Board of Management in relation to this issue and others. In an effort to resolve matters, the chairperson met with Mrs A on three occasions during which a number of measures relating to the complainant’s needs were agreed with Mrs A. It was submitted that the complainant’s account of the meeting which took place has been taken out of context. The chairperson’s suggestion that the complainant could return to the maths class without SNA support was one of several options discussed and arose from the fact that at that stage the complainant had been attending the class without SNA support for 2 weeks.
5.16 The respondent submitted that it was also suggested by the complainant’s parents that four weeks after he returned to the maths class, with the SNA present in the classroom with him, he was left without and SNA. This suggestion is taken out of context. On that particular day, the SNA in question was absent from work due to illness and phoned in too late to have a replacement in situ by the time the school day began at 9 am. Staff absences happen on a weekly, or often daily basis in a big school and one can only make the best possible effort to arrange cover as expeditiously as possible.
6.1 The relevant sections of the Equal Status Acts are as follows:
Section 2 (1) – “disability” means—
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour…
Discrimination is defined in Section 3 -
(1) (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)
And in Section 4 (1) and (2)–
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 difficult for the person to avail himself or herself of the service.
(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.
7.—(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student,
(d) the expulsion of a student from the establishment or any other sanction against the student.
(4) Subsection (2) does not apply— …
(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.
6.2 I must 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 to 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 him. 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, written and oral, made to me by the parties to the case.
6.3 I am satisfied that the complainant has a condition which has been detailed to me which is a disability within the meaning of the Acts.
6.4 Having regard to the oral and written evidence before me, the following has been established to my satisfaction:
- The complainant was attending an upper ability stream for maths
- This upper ability stream for maths took place in a classroom across the hall from the complainant’s main classroom
- From the outset, the complainant was not accompanied by his SNA to that classroom
- The mobile handrail to assist the complainant in going to the toilet was not moved to this new location
- The class teacher, Ms X, asked the complainant whether he needed assistance in going to the toilet and was informed by the complainant that he did not need assistance, and in this was treated as any other pupil would be treated
- The complainant was required to leave the bathroom at the end of class to seek the assistance of the teacher in fastening his trousers
- The complainant’s father, Mr A, sought the SNA to remain with the complainant at all times
- The principal, Mr Z, initially acquiesced to the request but upon reflection did not consider that the complainant needed the SNA presence at all times, but upon request it could be provided
- The complainant’s parents insisted that the SNA be provided at all times in the same room as the complainant
- The principal indicated that the only way this was possible due to the need for the SNA to remain in the other classroom was if the complainant also remained in that classroom
- The principal indicated to the parents that in order for their request to be adhered to, the complainant would remain in his main classroom for maths classes
- When investigating this matter, the Chair of the Board of Management requested that the parents allow their son to return to the upper stream maths class while she investigation the matter, the parents refused this offer
- It appears that the respondent operated this system for two weeks from the beginning of the term until 20 September with on incident
6.5 Having regard to the foregoing I am satisfied that the respondent removed the complainant from the upper stream maths class in order to comply with the parent’s wishes that he remain with an SNA at all times, and furthermore, his continued absence from that class was a direct result of the parent’s decision not to return his to that class.
6.6 I am also satisfied that the complainant has established that the mobile handrail was not transferred across to the upper stream maths class and that this amounts to a failure to provide reasonable measures to enable the complainant to access this class. Given that the respondent was in a position to provide an additional mobile handrail with little or no difficulty while investigating the matter, I do not consider that the respondent is entitled to rely on the defence that this measure would have involved a cost other than a nominal cost. Accordingly, the complainant is entitled to succeed in this regard for the two week period where an additional hand-rail was not provided.
6.7 Having regard to the assertion that the complainant is being less favourably treated in the yard by virtue of not being allowed to access the basketball court in the yard, I note that the parents assert that the complainant is like other pupils and should be treated accordingly. However, I also note that both the initial occupational therapy report and the follow-up report have identified issues with the complainant’s balance and have identified possible hazards in the playground. Therefore, I am satisfied that the difference in treatment of the complainant in this regard, may be accounted for by the occupational therapy reports and therefore does not constitute discrimination.
6.8 Having regard to the generality of the evidence before me, I am satisfied that the differences of opinion which arise between the complainant’s parents and the respondent arise out of a different pedagogical approach to the complainant’s educational needs and not from any intention, conscious or otherwise, to discriminate on behalf of the respondent. I note from the evidence before me that the complainant’s parents have expressed their satisfaction with the education and support currently being provided to the complainant but the staff of the respondent.
6.9 I am satisfied that, taken as a whole, the school has made reasonable accommodation for the needs of the complainant. While saying this, I am also conscious that the complainant detailed a small number of incidents that occurred during the previous years of schooling, however, I am satisfied that these incidents are not linked to one another. In so far as the standard of support during the period in question fell below what was usually provided by the school to the complainant, this was due in the main to exceptional circumstances and I do not consider that they were of sufficient gravity to bring the treatment detailed within the definition of discrimination in the Act.
6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.
6.2 I find that the respondent failed to provide reasonable measures for a two week period when it did not make a handrail available to the complainant and therefore the complainant is entitled to succeed in this regard. In accordance with the provisions of the Acts, I award the sum of €500 in respect of this failure.
03 December 2013