Complainant

Respondent

Anonymised Parties

A Parent on behalf of her son

A School

Representatives

The parent represented herself and her son

Respondent’s Representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the WRC under Section 21 Equal Status Act , 2000

CA-00060215-001

24/11/2023

The claimant’s parent submitted that the respondent failed to make reasonable accommodation for her son from September 2021 to the time he left the school in May 2022. The complainant presented a chronology of her engagement with the school  and her son’s experiences at the school over this time frame  - she asserted that she tried to work with the respondent’s management to ensure policy and practice change and that appropriate training was put in place for all staff  but she had no confidence that practices would change and the respondent would learn from the findings of an investigation that had been conducted under the schools complaint  procedures. The school denied the allegations of discriminatory treatment and submitted that every action and decision taken by the school was rooted in a genuine commitment to inclusivity and support for all individuals , regardless of their background or circumstances.

It was submitted that the school’s actions were consistently guided by compassion, respect, and adherence to the relevant legislation.

The complainant asserted that the school failed to make reasonable accommodation for her son and submitted that as a result he did not have equal access to education because of the effects of his past trauma – which she maintained were well known to the school. She said her son experienced early life / developmental trauma which affected his concentration and attention. He struggled with routine and it was submitted that the failure to make reasonable accommodation resulted in him being unable to access education , that it had significant impact on his mental health and resulted in an abrupt ending to his schooling. The claimant’s son was taken into care at age 2 because of severe neglect and remained in care until he was adopted by the claimant and her husband when he was 6 years of age.

It was submitted that for the first 2 years the claimant settled happily into school with 100% attendance and the home school liaison teacher ensured that teachers were aware of his needs and minor accommodations were made. He was the third of the family’s three children to attend the school and it was submitted that the school had a long standing knowledge of the childrens’  history and trauma.

It was submitted that after Covid the new Principal implemented a new behaviour pyramid and that there had been a significant turnover of staff during this time. It was submitted that in order to ensure continuation of communication and information regarding his ongoing needs and history, a meeting was arranged with the school but this did not happen despite the family’s best efforts.

It was submitted that the policy changes introduced by the school negatively impacted upon the claimant’s son.” He was having points taken away for minor concentration issues and it was clear that some teachers were unaware of his needs and the agreed accommodations”.

It was submitted that when the claimant brought these concerns to the attention of the Principal, she and her husband were met with absolute intransigence and were told he would be treated the same as everyone else and had to adhere to the new system. It was submitted that this formed the basis of multiple interactions /meetings with the school with limited success or change. It was submitted that the Principal refused to involve the school psychologist or EWO and that a report from the student’s GP was ignored. 

The Principal had made it  clear that that no accommodations or support would happen without an educational psychologist assessment. It was submitted that the Principal stated in writing he would have to write to  SENCO to progress a psychological assessment so that her son could access SNA support in the classroom – it was advanced that this was out of step with the Dept. of Education practise where SNA hours are frontloaded to be allocated at the Principal’s discretion. The student left education in April/May 2022 and was treated for anxiety and depression having struggled enormously with school. It was submitted that the school failed to make the minor accommodations required for her son.

The claimant maintained that she and her husband tried in vain to involve senior  management but were told they had to adhere to the code of conduct and use the complaints procedure. – it was submitted that the procedure was not fit for purpose for acute problems affecting a child’s right to education and that it took from Oct. 2021- Feb.2023 to complete the procedure.

The claimant described her son as becoming  disaffected, lacking in confidence, closed off and disinterested – and attributed this to the school’s failure to provide the minor accommodations needed.

The complainant set out the following  findings of the Stage 4 Investigation that had been conducted, including:

The SNA should have been centrally involved in explaining the reasons for the locker check;

The student’s early childhood trauma should have been accepted as a reason to provide accommodation for him within the Code of Positive Behaviour;

There was no  creativity around the school’s accommodation of his needs and

The school should have better investigated the possibility of different perspectives or interpretations of events on a number of occasions.

The complainant submitted that since the report was issued she had tried to work with management to ensure policy and practise changed and that training was put in place for relevant staff. She submitted that she” had to repeatedly chase up information requests and agreements and complained that on occasion she had been completely ignored”.

It was submitted that the last communication with the respondent was on the 30th.August 2023.

Extensive documentation between the parties including the report on the investigation conducted under the college’s complaints procedure was submitted into evidence.

The respondent submitted as follows :

The respondent  wishes to address the serious accusation of discrimination against the young person, D, on the basis of a disability stemming from trauma, taken by D’s mother, hereafter referred to as the complainant.  Within the college  it is our solemn duty to uphold the principles of justice and fairness, and we assert unequivocally that the school management and administration in this  College has diligently strived to accommodate the needs of all students, including those with disabilities, to the best of its ability. While we empathise deeply with the challenges faced by the student in question, we maintain that every decision and action taken by the school was rooted in a genuine commitment to inclusivity and support for all individuals, regardless of their background or circumstances. Throughout this Workplace Relations Commission Hearing, the respondent  intends to demonstrate that the alleged discrimination is unfounded and that the school's actions were consistently guided by compassion, respect, and adherence to the relevant legislation.

Initial Enrolment to  College

D enrolled in the  College in November 2019 transferring into first year. An enrolment form on behalf  of student, D, was received by the College from his mother  on the 6th November 2019. D had commenced first year in another college and was applying to change school to move to this College after two months. Two of the questions on the enrolment form were:

Has an Educational Assessment been carried out by an Educational psychologist?

The complainant  ticked No in the appropriate space

Does your child currently avail of any special needs support? (if so, please give specific details)

The complainant entered the following: ‘not specifically, but a supervising eye is useful, eg writing down homework’.

In this College, the above responses on the enrolment form did not trigger any significant concerns as regards D and did not indicate a possible disability. During the school years 2019-2020 and 2020-2021, there were minor disciplinary matters pertaining to D. It was only in the school year 2021-2022 that matters relating to D started to escalate.

Reasonable Accommodation

The complaint from the student’s mother is that the school failed to make reasonable accommodations for her son. On the 13th October 2021, the school advised the complainant and her husband  that a number of reasonable accommodation measures were being provided. Despite the implementation of these accommodations, the complainant  argues ‘that the failure to make reasonable accommodation has resulted in him  being unable to access education, had a significant impact on his mental health and an abrupt end to his schooling.’ The school through the care team did implement a number of reasonable accommodation measures to support D on his educational journey. The school has always communicated to both parents  that D  was welcome to return to the College to continue his education.

Code of Behaviour

The College implemented a revised Code of Behaviour with an emphasis on positive behaviour and a ladder of referral in early 2021. D’s father  was a member of the Board of Management of the  College that adopted the new Code of Behaviour. The minutes of the Board of Management meetings at which the new Code of Behaviour was discussed recorded that D’s father  was present at all meetings. The whole school community was consulted in compiling the Code of Behaviour inclusive of: Parents, Staff Members, Students and the Board of Management. The school did not receive any feedback or comments from either parent, during the consultations.

The Code of Positive Behaviour was and is applied consistently to all students. The code is there to support students and at every stage in the ladder of referral with supports and interventions. All students are aware of the Code of Behaviour and it is discussed in Social Personal Health Education (SPHE) classes. Students are informed when they get either positive or negative points. The Behaviour for Learning teacher meets with students when they get sanction cards and discusses how they can build positive points. In addition to this, the Year Head will follow up if necessary with a call to the parents. Reports on students are recorded on the  College Management Information System and all teachers are advised to keep reports factual and concise.

The school did pilot the draft Code of Behaviour from March to May 2021 with a view to revising and tweaking following this interim period. During this introductory period, D was awarded the Most Improved Student. In May 2021, D’s older sister was suspended from the  College. The parents  took great umbrage with the suspension and withdrew their daughter from the  College. There appeared to be a change of attitude from the parents towards the school management of the College, arising from the suspension. D on return to school following the summer break also had a noticeable adverse change in his attitude to school and the various staff members he engaged with. Perhaps, if more support had been shown to the school in the spirit of partnership by the parents, many issues may have been avoided.

The school understands that the communications and interactions with D caused ongoing issues. School management has the task of maintaining an environment conducive to a high standard of teaching and learning, this presents many challenges in implementing a Code of Behaviour that is fair and also accommodates students with particular challenges. In hindsight, the school could have been more creative but some of D’s behaviours were clearly not acceptable and needed addressing. The  Year Head, did make every effort to keep the parents informed. The school did acknowledge and apologise when the incorrect course of action may have been taken.

The Department of Education Inspection in September 2023 made the following observations on the School Code of Behaviour, ‘the school assessment policy contained appropriate systems and structures that supported good whole-school approaches for SEN.’

Attendance

During the school year 2021-2022, D was absent from school for 43 days in total . This relates to an absence of 26% of the school days. During all the discussions and meetings arising during the complaints process, it was always made clear to both parents  that D would always be welcomed back to our College.

The respondent  is addressing the serious allegation of discrimination against a student based on a disability stemming from trauma. While we sympathise deeply with the challenges faced by the student, it is crucial to clarify that the actions taken by the school were not driven by discrimination, but rather by a genuine commitment to provide appropriate support and maintain a safe learning environment for all students.

As part of the complaint, the complainant  claims that D was ‘unable to access education appropriate to his needs or ability’. It is the view of the respondent  that D’s failure to attend school for various periods was his/his parents’ choice, due in whole or in part to a reluctance to accept that certain behaviours of the student were unacceptable (as was found by the investigators) and that indeed the finding of the investigators re: the parents’ lack of support for the school is in line with this.

Locker Organisation/Book Check

The incident surrounding the locker organisation was a major bone of contention for the parents. The actions were alleged to have been  discriminatory. However, it is clear that the locker/bag organisation checks were not applied only to the complainant, but other students without the disability that the complainant purports to have. These students were treated the same way and as such any discrimination test fails. Furthermore, any mistakes that were found to have been made by the school did not constitute discrimination as they were not on the basis of any disability, and indeed the school’s new Code of Behaviour was applicable to all students irrespective of gender, disability, family status, civil status, sexual orientation, religion, age, race or membership of the Traveller community. The reason that the Special Needs Assistant did not participate in the formal investigation was that she was acting under the direction of  the Special Education Needs Coordinator. She was uncomfortable participating due to the anticipated increase in the level of stress arising.

The book check is a standard intervention to help organisational skills and prevent students accumulating negative points. Parental consent was not deemed necessary for this. Organisational management skills were introduced for the student as well as a number of other students, this involved small measures that would assist students in organising themselves for the school day, the timetable and the various school activities.

Special Education Needs Inspection by the Department of Education

In September 2023 the Department of Education inspected the  College with a focus on Special Education Needs Provision. The following was a comment included in the report from the Department of Education Inspectorate. ‘The structures in place to support inclusion, equality and holistic development of students were very good overall. The principal, deputy principal and SEN coordinators foster an open, caring and inclusive culture within the school. They demonstrate a very strong commitment to inclusive goals and emulate the core values of the school patronage. This was evident in the open welcome received by families and students who were under international protection.’

The Inspectorate also gave consideration to the changing needs in the school and advised that they should continue to engage with the National Educational Psychology Service (NEPS) and the trauma-informed response resources.

All interactions between teachers and students were very caring and respectful and were supporting their wellbeing was a comment in the inspection report.

Concluding Remarks

Trauma-informed practice and the suggested Adoption UK training have been added to the suite of courses for the Special Needs Assistants. In addition, the discretionary Croke Park hours are to be used by relevant teachers to complete such training. The Special Education Needs Coordinator (SENCO) and the other Special Education Needs (SEN) teachers have attended Continuous Professional Development where trauma training has been included. At present, the Department of Education is currently promoting a National Educational Psychological Service (NEPS) eLearning course on Introducing a Trauma Informed Approach. The Deputy Principal of the  college is currently completing this course to supplement and complement prior knowledge.

It is essential to recognise that the college is dedicated to inclusivity and diversity, and discrimination of any form goes against the core values upheld by both the school and the respondent. The management and staff are trained and experienced to accommodate various disabilities and every effort is made to ensure that students receive the necessary support to thrive academically and emotionally.

Furthermore, it is important to consider the context within which decisions regarding the student's education and well-being were made. Schools operate within legal and regulatory frameworks that require careful consideration of the individual needs of students while also balancing the broader interests of the student body and the educational community as a whole. Decisions made by school management regarding accommodations, interventions, or disciplinary actions are often complex and multifaceted, taking into account a range of factors beyond the student's disability.

Additionally, it is crucial to note that the school's actions were guided by professional judgment and the best available information at the time. While hindsight may allow for alternative courses of action to be considered, it is unfair to retroactively attribute discriminatory intent to decisions made in good faith and based on the information and resources available at the time. The  College is going through a rapid phase of growth in student enrolments and this presents many challenges.

In conclusion, we maintain that the respondent  and the school acted in accordance with its legal obligations and commitment to providing a supportive and inclusive educational environment for all students. Any perceived discrepancies or challenges in addressing the student's needs should be viewed within the broader context of the school's efforts to navigate complex educational and social dynamics while upholding the rights and dignity of every student. We urge you as Adjudicator to consider the evidence impartially and to recognise that the school's actions were motivated by a genuine desire to support the student and promote their academic and emotional well-being, rather than any other perceived intent.

Post Hearing Submissions

The respondent submitted a post hearing submission on the 16th.Jan. 2024 and made the following points:

It was submitted that the respondent’s view was that the complaint was filed outside the statutory time frame and asked that this be considered if deemed appropriate.

With respect to the possible publication of findings, it was suggested that the findings should not be published due to the significant risk of unintended harm to the privacy and well being of the minor involved at the time, as well as the potential reputational damage to all parties. It was submitted that given the sensitive nature of the case and the local context in which it arises, even anonymised publication may allow for identification of the parties within the community

The following documents were included  with the submission:

The School’s Report on the Evaluation of Inclusive Practices and Provision for Children with special and additional educational needs in Post Primary Schools

The School’s response to the above Report and

The School’s Complaints procedure.

The complainant submitted as follows on the 20th.January:

“ D commenced his course in September 2022 (see attached document as requested). The stage 4 investigators were not interviewing school management until after the completion of school holidays (Sept /Oct 2022) which meant even had D wished to return for transition year, he would be returning to the same situation and management approach as previously. Until the complaint was finalised and acted on the discrimination would have continued. The final report was sent to us in February 2023. The final letter from the respondent  in August 2023 demonstrated that the finding of facts had still not been acted on 7 months after the findings were made. Therefore the discrimination was still ongoing at that point. There was no possibility of returning to the College for Leaving cert or subsequent PLC courses. I activated the WRC complaint at that point as I no longer believed there was any management intention of change in practice. ———————

Respondent’s complaint procedure

Had the  complaint been applied appropriately, the ongoing delays that ultimately resulted in D leaving the school may have been avoided. It now seems that the complaint should have gone straight to stage 3 (from what the director stated at the hearing), as it involved school management. Instead we had to complete unnecessary stages and then subsequent delays in progressing through the stages 2, 3 and 4 which took a total of 1 year and 4 months. (I also initially had to contact the head office online to progress things as the Principal stalled progress for no valid reason when we first instigated the complaint). 2 We initiated the complaint in November 2021. Had it been moved to stage 3 as it should have been and a timely response provided (with a genuine desire to help ) the complaint could well have been sorted by Dec. 2021.The complainant submitted another copy of the correspondence received from the WRC on time limits”.

The respondent’s responding  submission  of the 13th.Feb.is set out below:

“Having reviewed the latest submission from the complainant received on the 5th.February 2025, the respondent maintains the position that this complaint falls outside the statutory time frame for lodging a discrimination claim. As per the relevant WRC procedures, complaints of this nature must be submitted within the prescribed period, and we believe that this timeline has not been met in this case. The submission received does not change this position or timelines.”

In a submission dated the 19th.March, the complainant alleged that the employers references to accommodation of students identified with particular challenges and their acknowledgment that the school could have handled matters differently  was now being ignored by the respondent -  it was submitted this was a u-turn  by the respondent and the complainant submitted that there was never any sincere intention to properly deal with the matters or accept the Stage 4 facts. She submitted that there was no kindness shown to her son and no effort to make contact with him  or his parents when he was out of school. The complainant criticised the respondents failure to take notes or minute meetings .She submitted that it was the failure of the respondent to adhere to time frames and procedures that  caused  the significant delays in the process. It was submitted that the IEP of Sept. 2021 demonstrated  that the school had a clear knowledge of D’s needs. She criticised the failure to have parental imput to the IEP. She suggested the Principal was either being blatantly and wilfully obstructive or communication between relevant personnel had failed completely. The complainant criticised the 2 year time frame for completion of the School Inspection Report  and submitted that her concerns at the unacceptable practise of taking young people from mainstream classes for numeracy  support were legitimate and well founded. The complainant went on to chronicle the catalogue of correspondence between the parents and the school.

With respect to the matter of anonymisation of the decision the  complainant submitted that she had acted in good faith at all times ; that the school had failed D and that there will be no damage to reputation whether or not their position is upheld. The claimant referenced children similar to D attending schools without full diagnostic assessments and submitted that publication of any findings could inform decisions about the most appropriate schools for the needs of those children.

Preliminary Matter of Time Limits:

Notification of the Respondent ES1

The first matter I must decide is if I have jurisdiction to hear this complaint. In making my decision I must take into account both the relevant legislation and the legal precedent in this area. Section 21(2) provides that a complainant must , within 2 months of the date on which the prohibited conduct is alleged to have occurred , notify the respondent in writing and inform them of his or her intention to seek redress. Depending on the circumstances  the WRC may extend the 2month – time limit to four months . The claimant identified the most recent act of discrimination as occurring on the 30th.August 2023 and submitted that correspondence from the Director of Schools to her constituted the most recent act of discrimination . It is accepted  that the claimant’s ES1 was received by the respondent on the 21st.Sept. 2023 – ie within the time frame permitted by the Act. The matter as to whether the correspondence of the 30th.August 2023 from the Director of Schools to the complainant constitutes an act of discrimination is considered below.

Submission of the complaint to the WRC

The complainant’s complaint form was received by the WRC on the 24th.Nov. 2023.In accordance with the provisions of Section 21(6)(b), the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding 6 months – i.e. on or after the 25th.May 2023.For reasonable cause this time limit can be extended to 12 months.

The complainant submitted into evidence emails  exchanged between her and her husband and the WRC  on the 15th.May 2023. The complainant asserted that advice was sought from the WRC in relation to time limits –  in the email to the WRC the family  set out a chronology of the interaction with the school about the failure of the school to make accommodation for their son having been made aware of the effects of his early life trauma. It was submitted that the parents had lodged a complaint with the school  in  November 2021  that dragged on until March 2023.It was submitted that all delays had been out of the family’s control and were down to the slow procedures of the school. According to the family, In April 2023, the Director of Schools wrote to them with wholly inadequate proposals which included no restorative actions for their son.

The family’s email to the WRC and the reply received  from customer service was submitted into evidence. The family submitted they were  relying on this   and were hopeful  that their complaint would be deemed to be  in time .

In her complaint form, the complainant  stated the most recent date of discrimination was the 30th.August 2023 – the date she received a letter from the Director of Schools in which the Director sought a meeting in September to discuss actions , timelines and recommendations arising from the Investigation that had been conducted into the families complaints about the school. This had been preceded by an earlier letter from the Director on the 19th.April 2023 where the Director referenced the shortcomings highlighted within the investigation Report and acknowledged that the school could have approached communications and interactions with D differently.

At the most recent hearing of the matter  on the 13th.Jan. 2025  the complainant was asked by the adjudicator to clarify how the letter of 30th.August 2023 from the Director constituted the occurrence of a discriminatory act in circumstances where her son D had left the school in May 2022 and signed up to another school without any plans to return. The complainant responded that it was her belief that it was in D’s best interests not to return to the school .The complainant said that at this time in  August 2023, they were continuing to engage with the school to provide remedies for other children but no evidence was forthcoming to demonstrate that anything would change in the school.

Findings & Conclusions:

The complainant and the family presented as very caring parents who wanted to do their best for their son. While I have considerable empathy for them, I am bound by the parameters of the Act. Having considered the entirety of the evidence presented, I have concluded that the delay  in lodging the complaint was based on the family’s lack of awareness of the statutory time limits set out in the Act. I cannot accept that the letter of the 30th.August from the Director to the school  constituted a discriminatory act that caused him detriment in circumstances where D had left the school some 15 months earlier in May 2022.While I acknowledge that the family were ill advised in the email from the WRC of the 15th.May 2023  which referenced the complaint being “ in time as the issue is ONGOING” and I accept this was regrettable , the email specifically advised “ This information is for general informational purposes only and is not intended to provide legal advice to any individual or entity. We invite you to consult with your own legal adviser before taking any action based on information you read in this document.”

In Globe Technical Services Ltd. And Kristin Miller (UD/17/177), the Labour Court found that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time”.

Accordingly, I am obliged to conclude that the time limits set out in the Act were not complied with.

Having considered all of the evidence available to me, I find the complainant has failed to comply with the time limits set out in Section 21 of the Equal Status Act, 2000.

I find therefore I have no jurisdiction to investigate the complaint.

Out of time/ Jurisdiction