Complainant

Respondent

Anonymised Parties

Former Pupil

National School

Representatives

Ms Rachael O’Byrne BL instructed by KOD Lyons LLP

Ms Cathy McGrady BL instructed by

Ms Áine Haberlin

Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00069570-002

25/02/2025

This matter came before the WRC dated 25/02/2025 as a complaint submitted under section 21 Equal Status Act, 2000. 

The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 29/08/2025 during which preliminary issues of jurisdiction were raised.  Following receipt of legal submissions on matters raised the complaint was set down for hearing over two days on 11/12/2025 and 12/12/2025 respectively.   

The specific complaint is one of discrimination by reason of disability and failure to provide reasonable accommodation for a disability.  The most recent date of discrimination is cited on the WRC complaint form as 03/09/2024.   

The Respondent denies all allegations of discrimination against the Complainant on the grounds of disability and asserts that it has made reasonable accommodations for the Complainant at all times.

Both parties filed written submissions and supporting documentation in advance of hearing for which I am grateful. 

Preliminary issue – RECKONABLE PERIOD / JURISDICTION

The Complainant submits that the complaint was notified in accordance with the provisions of s. 21 of the 2000 Act.

It is not accepted that the prohibited conduct impugned by the Complainant falls outside of the “reckonable period” outlined in the Respondent’s submissions of 19 September 2025.

Further, the Complainant does not accept the Respondent’s submission at §14 of their Supplemental Submissions that the complaint dates to June 2024.  In this regard, it is submitted that the prohibited conduct challenged by the Complainant, namely the imposition of the fixed and inflexible policy in relation to the rotation of SNAs over a two-year cycle, should be properly construed as a continuous and ongoing failure to make reasonable accommodation in respect of the Complainant’s particularised needs.

Section 21(11) provides that:

 (11) For the purposes of this section prohibited conduct occurs— (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period.

The question of when a claim becomes actionable, with regard to the occurrence of the alleged prohibited conduct, was considered in Ade Olanrewaju v. Garda Siochana Ombudsman (ADJ-00039075, 20 July 2023) as follows:

Where there has been notification, the 2 (or extendable to 4)- month time limit applies - unless the notification procedure is directed to be disregarded.  However, the basic time limit for a claim for redress itself is set by subsections (6) and (7).  This time limit commences, that is to say that the claim ‘crystallises’ or becomes actionable, on dates which will vary depending on the circumstances as follows:

Where a single alleged instance of past prohibited conduct is involved, the time commences from the date of that alleged instance; 

Where a series of acts or an act extending over a period of time is involved, the relevant date of commencement of the time limit is the date of the “most recent occurrence”- as per subsection 6 (a) - or “at the end of that period” as per subsection (11) (a);

Where a “policy” is challenged - subsection 11 (b) - or where the alleged conduct is of a continuous nature and is still ongoing, the actionable date is pushed out until the continuous conduct ceases or the policy ceases to operate and thus it is possible in certain situations that the time limit has not even started to run by the time the claim comes to adjudication. 

The Complainant submits that the allocation of a new SNA to the Complainant and the failure to have regard to her specific needs in this context, arose principally from the imposition of a fixed and inflexible policy, namely the rotation of SNAs every two years.  This prohibited conduct therefore falls squarely within the provisions of s. 21(11)(b) of the 2000 Act, as it arises by virtue of a provision which operates over a period.  More simply, the prohibited conduct challenged by the Complainant was of a continuous nature and was ongoing between September and December 2024, until the Complainant was removed from school A.   

The Complainant relies on s. 77(6A) of the Employment Equality Act 1998, as amended; Louth/Meath Education and Training Board v The Equality Tribunal [2016] IESC 40; Beirne v Sraheen Group (ADJ-00029370, 1 June 2022). 

On the within facts, it is submitted that the offending practice, or the prohibited conduct for the purposes of s. 21(11), was the failure of the Respondent school to assess the Complainant’s particular needs in relation to her SNA support, and to provide any reasonable accommodation, which was based on the school’s policy regarding rotation of SNAs. The Complainant submits that this prohibited conduct was ongoing from 1 September 2024, when she commenced the new academic year in school A and ceased only when she was removed from school A.   

It is further submitted that it would not be accurate to construe the prohibited conduct as a single instance decision which took place in June 2024, as proposed by the Respondent. This is in particular because the decision only came into effect at the beginning of the academic year, on or around 1 September 2024, and the Complainant’s parents had continued their efforts to seek reasonable accommodation through correspondence in August 2024.

Substantive Complaint

Overview of Complainant written submission

The Complainant lodged her complaint against the Respondent on 25 February 2025. She submitted form ES1 on 17 October 2024.  The Respondent submitted form ES2 on 14 November 2024.

The Complainant has a diagnosis of Autism Spectrum Disorder with a Pathological Demand Avoidance/Persistent Drive for Autonomy profile.  This is a unique autistic profile which affects the Complainant’s nervous system and means that she sometimes experiences intense anxiety around everyday demands.  Relationship-based security is extremely important to the Complainant and she co-regulates with support and direction from trusted adults.

In particular, the Complainant struggles to manage transitions in her routine, being beginnings, endings and changes to her routine.  The Complainant handles these transitions based on trust and feelings of safety.  The Complainant is also a Gestalt Language Processor, which affects how her modes of communication.

The Complainant was enrolled in the Junior Infants class of School A in the academic year 2022/2023.  During the final months of that academic year, she experienced some difficulties with morning transitions into school.  In May 2023, the Complainant’s mother was informed that the Complainant would no longer be supported in morning transitions into school by her regular SNA.

In June 2023, it was agreed between the Complainant’s parents, school A and school B that the Complainant would be dually enrolled in both schools for the academic year 2023/2024, while she attended Senior Infants. 

The Complainant’s parents understood that while this arrangement would begin with the Complainant spending 4 days a week in school B and 1 day a week in school A, she would gradually increase the number of days spent every week in school A.   As the Complainant does not have an intellectual disability, her parents understood that remaining as a student in school B which is a Special School would not be feasible in the long-term.

The Complainant’s attendance in school A increased to 2 days a week.  In January 2024, the Complainant requested that she attend school A for 3 days a week. This request was communicated to school A and was refused on the basis that the relevant supports were not available in the school, because the Complainant was not enrolled there.  The Complainant’s parents did not realise this was the case.

On 28 April 2024, the Complainant’s parents formally requested her re-enrolment in school A for the academic year 2024/2025, on the basis that school B was not suitable for her in the long-term.

On 30 May 2024, the Complainant’s father wrote to the Principal of School A requesting that the Complainant’s SNA in Junior and Senior Infants (SNA A) continues in place, on the basis of the Complainant’s unique needs.  This letter was supported by a letter from the Complainant’s Occupational Therapist and from her Psychologist.

The Complainant’s parents met with staff of school A on 6 June 2024 in relation to her re-enrolment. At this meeting, the request for continuity of the Complainant’s SNA was acknowledged, but the school A did not engage with the Complainant’s parents in relation to this correspondence in any substantive or meaningful way.

On 26 June 2024, the Complainant’s parents receive a standardised email from school A informing them that she would receive a new SNA for the academic year 2024/2025.  No reasons for the decision are provided in this email.   The Complainant’s father wrote to the Principal of school A on 26 June 2024 asking for clarification of the rationale for this decision and requesting reconsideration of same.  The Complainant’s father also requested a meeting in relation to same.  No response was received to this correspondence.

The Complainant’s mother wrote to the Principal, requesting that this reasonable accommodation is granted.  On 28 June 2024, the Principal of school A wrote to the Complainant’s parents as follows: “As mentioned at our meeting on June 6th, your request was noted.  Having given due consideration to the needs of all pupils with additional needs in the school, SNA B is the SNA who will work with the Complainant next year.  All SNAs are trained as professionals to work with pupils with additional needs.  As you know, the Principal has overall responsibility for the allocation of staff (teachers and SNAs) and the decision is final.”

On 16 August 2024, solicitors on behalf of the Complainant wrote to the school in relation to the question of continuity of SNA support in the new school year which was replied to by solicitors of the school on 27 August. 

When the Complainant began attending First Class in school A in September 2024, she experienced difficulties transitioning into school in the mornings, which led to severe anxiety and anxiety-based school avoidance on her part.  The Complainant’s parents consider that this was due to the significant change brought about by the absence of her trusted SNA and also due to the Respondent’s failure to adopt PDA-informed strategies to accommodate the Complainant. 

As a result, the Complainant was unable to attend school for large parts of the day.  The Complainant was also for the most part unable to access the SET hours assigned to her during these months.   In December 2024, the Complainant’s parents removed her from school A in order to protect her emotional safety, in light of the distress she had been continuously facing. 

The Complainant submits that the Respondent school has failed to afford her with reasonable accommodation, leading to discrimination on the basis of her disability.  The Respondent’s failure to engage constructively in relation to the Complainant’s request for continuity of SNA support, in light of her highly individualised needs, are directly linked to her disability and thus the actions fall foul of the Equal Status Act 2000.

Law relied upon by the Complainant

Sections 3, 4, 5, and 7 of the Equal Status Act 2000 (as amended) (‘the 2000 Act’); section 2 of the 2000 Act; section 7 of the 2000 Act; A Student v A Secondary School DEC-S2018-018; Section 2 of the Education for Persons with Special Educational Needs Act 2004;  A Mother on behalf of her Daughter v A Secondary School ADJ-00010034; A Parent v Board of Management of a Primary School DEC-S2012-026; Clare (A Minor) v Minister for Education and Others [2004] IEHC 350; 38A of the 2000 Act; Hallinan v Moy Valley Resources DEC-S2008-25;

Summary of direct evidence of Complainant’s mother on affirmation

The Complainant’s mother describes her daughter as wonderful, unique, joyful, happy, creative and caring of her little brother.  The Complainant is eight years of age now and she is very independent and really smart.  She has a really unique autism profile with PDA.  Demands can be seen as threats by the Complainant and trusted relationships support her – somebody that she trusts helps her to regulate and provides relational safety.  She is wonderful little girl in an environment that supports her. 

The Complainant was diagnosed when she was between two and half and three years old and the PDA diagnosis came after that.  She is brilliant at regulating herself and the environment is key to that.  She is hugely dependent on co-regulation.  She communicates through scripting and she is really unique.  It is a nervous system disability and you become more aware of judgement.  She has self-regulation strategies but she needs a safe environment and a safe person.

The Complainant commenced in school A in 2022 when she was five years old in Junior Infants.  It took time but her lovely SNA (hereafter SNA A) got to know her and she went on a learning journey with her.  The Complainant did really well in that first year but in March of 2023 she started to struggle so they linked in with an Occupational Therapist (hereafter OT) and maybe she was burnt out and masking a bit.  She was struggling to transition but SNA A was doing a great job supporting her.  The OT went to the school to advise about the morning transitions.  The school said the Complainant couldn’t have access to the sensory room.  The Complainant’s mother submits they always tried to work with the school. 

The Complainant’s mother submits that at the end of June 2023 they had a meeting with the school Principal of school A and school B, which her son attended, and it was agreed there would be dual enrolment for the Complainant which went really well – she would spend 4 days in school B and one day in school A.  The Complainant’s mother submits that at a meeting on 13 February she was completely floored when she was presented with the idea of moving the Complainant to another school. 

They always tried to support the school and they were very solution focused but all their solutions were shot down and there were barriers preventing the Complainant from attending at school A for a third day.  The plan for dual enrollment was agreed between the two Principals and it was a damage control response and a therapeutic bridge for the Complainant. 

On the 23 May the OT wrote to school A and the psychologist wrote and she finds is shocking that expert advice was totally ignored and there was no attempt to make reasonable accommodation and there could have been alternatives.  Months passed and there was no contact.  The Complainant’s mother submits they are very reasonable and conversations could have been had. 

There was no mention of the risks and no rationale provided.  Legal was the only way to apply pressure to school A to listen to the Complainant and to the advice of the experts.  The risks were anxiety, the Complainant not being safe in school, having a regulated nervous system, sleeping and severe emotional stress.  The Complainant’s father sent a few emails and their solicitor sent a letter in August to school A. 

SNA B had never met the Complainant and she didn’t know her – there was no connection.  They sought a rationale from school A as to why they couldn’t have SNA A.  The Complainant has the right to reasonable accommodation and if the school sticks to its policies they are not going to be able to provide that.  The Complainant wasn’t receiving the nuanced support she requires and they offered the OT to school A and she (the Complainant’s mother) pulled together a power point presentation but she was told she didn’t need to present it.  She was starting to get worried because the Complainant’s anxiety was at a level not seen before and she wouldn’t leave the house, ran away from school on her own and ran home.

She needed the continuity but school A was so resistant to so many suggestions to adapt so the Complainant could feel safe and access her right to education.  She didn’t get the support from SNA B that she would have got from SNA A. 

The Complainant took off all her clothes and she was screaming – got calls every day to come and pick her up. School A didn’t know what to do and that is why they wanted the National Educational Psychological Service (hereafter NEPS) involved.  They sat down with school A and NEPS.  She was put on a reduced school day and by then she was a shell of herself.  SNA B tried really hard but she just didn’t have the knowledge.  She was out in the hall with the SNA and she wasn’t accessing the classroom.  It did help a little when she was on the reduced school day but it was too little too late. 

School A was not flexible and not adaptable.  Reasonable accommodation is not an assumption and she needed the continuity of relational safety.  There were no conversations about the barriers and they were never told SNA A was on .5 hours.  There was no brainstorming to find solutions.  They moved the Complainant in December and she is now in school full-time and thriving.  They are so flexible and inclusive and incredibly understanding and figured out how to make her feel safe.  It’s an inclusive culture.  

The Complainant’s mother submits they weren’t informed that the Complainant had previously been with SNA B when a document is exhibited to the hearing on consent between the parties detailing dates on which the Complainant had been looked after by SNA B during SNA A’s absence and submits its interesting they hadn’t been told that at the time but submits it wasn’t enough time to have built up a relationship. 

Summary of cross-examination of Complainant’s mother

It is put to the Complainant’s mother that she had given very specific evidence that the Complainant had never met SNA B and she replies she had not been informed of that and is asked if she (the Complainant’s mother) is suggesting she should be informed of any changes. 

It is put to her that cover is provided by another SNA when required and that SNA B will give evidence that she worked with the Complainant on many occasions. 

It is put to the Complainant’s mother that SNA B is highly qualified and experienced which is not accepted and she submits SNA A is more experienced with the Complainant.  When asked if she accepts every child has a unique profile she agrees.  When asked if she accepts the rotation of SNAs is best practice she responds that for the Complainant no -  she does not accept that and submits that it should be child-led.  The Complainant’s mother submits policies should be adapted for an individual child’s needs.  

When asked if she accepts that other considerations include the needs of other children she does accept that.  When it is put to her the Complainant’s mother accepts that the school has many considerations and that it doesn’t have to tell her anything about other children and she accepts that the school doesn’t have to tell her about the contractual arrangements of staff but maintains her position that the school wouldn’t engage with them.

The Complainant’s mother confirms that anxiety started building up when she was in junior infants.  It is accepted that SNA A did a great job and that is not in dispute.  It is put to her that the school will give evidence the Complainant was arriving at the school anytime between 8.30 and 10 to which the Complainant’s mother submits she had to support her on her own.  It is put to the Complainant’s mother that the evidence she gave of an agreement between the two school Principals is not true and that she was specifically told that the Complainant could only be enrolled in one school. 

The Complainant’s mother refutes this and submits the agreement between the two Principals was that the Complainant would attend one school for two days and the other school for three days. 

It is put to the Complainant’s mother that it was her proposal and not the proposal of school A who in fact allowed the Complainant to attend the school despite having no capitation grant for her and that facilitating the Complainant in the school when she wasn’t enrolled had a significant impact on other children and required that an SNA be removed from another child.  The Complainant’s mother submits there were never told the reason why she couldn’t be facilitated for a third day. 

It is put to the Complainant’s mother again that it was never an agreement and it was in fact her proposal. 

It is put to the Complainant’s mother that she had given evidence that no effort was made by school A to which she responds that three letters had been sent and there was no response.  It is put to her that school A had 44 children and 8.5 SNAs and that a full-time highly experienced SNA was appointed to the Complainant to which she responds that was not what the Complainant needed and there was no partnership effort and no effort made to minimise risk. 

It is put to the Complainant’s mother that she did not engage with the school before she got her OT and psychologist to write letters to the school and that before they wrote the letters they did not engage with the school.  It is put to the Complainant’s mother that on 6 June there was a conversation about the letters during which she was told they would be given due consideration and that the school will say they gave all due consideration to her request while also considering the 44 other children. 

The Complainant’s mother submits there was no opportunity to engage in meaningful engagement and no rationale provided by school A as to why the Complainant couldn’t have SNA A.  It is put to her that the rationale was set out by the school in an email further to the meeting on 6 June and that rationale was consideration of the needs of all pupils with additional needs and she is asked what possible information she thought she was entitled to.  The Complainant’s mother replies that they were looking for an expert on the Complainant.

The Complainant’s mother is directed to the role of the SNA as set out in a department circular which is to support the teachers in a school.  She submits she is here to bring the Complainant’s voice into the room and that the Complainant knows what she needs and that she has the right to access education and there was zero opportunity to give her what she needed. 

It is put to the Complainant’s mother that measures under the Act do not have to be perfect.  It is put to the Complainant’s mother that it is completely untrue to say there was no engagement and refers her to email from the teacher containing a photo of the teacher as requested and it is put to her that she had no right to the photo to which she replies she thinks children do have that right and that she (the Complainant) still did not receive what she needed.

It is put to the Complainant’s mother that the Complainant when she started in 1st class did have a number of full days to which she replies not many as she had to pick her up.  It is put to her that she told the school the Complainant’s time was to be flexible and Complainant-led.  The Complainant’s mother is asked if she accepts that school A had provided a Complainant-led flexible schedule to which she replies the Complainant did not get the support she needed. 

It is put to the Complainant’s mother that she was not the driver of NEPS as the school had already sought this and was assigned to the school and they will say they got the earliest appointment they could.  It is put to the Complainant’s mother that when the Complainant ran away from the school both SNA B and the Principal were with her.  It is put to the Complainant’s mother that she had given in evidence that school A had placed the Complainant outside the classroom which was a gross misrepresentation as it was NEPS advised this. 

The Complainant’s mother accepts that the school had a sensory room and a sensory garden.  It is put to her that this case is about facts and she (the Complainant’s mother) continues to make sweeping statements and that she was well aware school A was working towards an autism class and this was delayed because of Covid. 

The Complainant’s mother submits they weren’t told that but told it would take years and then they built an astra turf. 

Summary of direct evidence of OT on affirmation

Coru registered qualified 20 years ago specialising in working with children across the public and private in Ireland and in the UK.

Commenced with the Complainant in March 2022.  The Complainant experiences the world differently she has PDA alongside the typical autism.  PDA presents quite differently it’s much more specific – much more individual.  Relationship is the first thing that is worked on – tone of voice, movement, use of language.  Strategies for PDA are very nuanced and different to the autism strategies.  It is anxiety based with the nervous system being much more activated / heightened on a daily basis.  Things are perceived as threat and it will be fight or flight mode. 

The Complainant is excellent at regulating herself and she has her imaginary friend.  The environment has to be right for her – physical environment, sensory environment, emotional environment and social environment. 

Reference is made to letter sent by the OT to school A.  It is submitted that with a PDA profile relationship is first and SNA A had been working with the Complainant and she had experienced some success with her and her needs at that moment in time were being met by her. 

The OT submits she made a recommendation in her letter not a directive and that it was a valued and very useful recommendation and she makes them all the time in public and private settings. 

On cross examination the OT submits it is outside of her remit to comment on best practice on the rotation of SNAs in schools.    The OT submits she wrote the letter based on what she believed was best for the Complainant at that time and that she can only consider the child in front of her. 

The OT is asked if she is disputing that school A had other factors to take into account, and she responds she is not disputing that. 

Summary of direct evidence of Complainant’s father on affirmation

The agreement was very clear between the two schools.  There was anxiety burnout at the end of junior infants, and they all met to see how this would work.  The hope was she might be back in school A and maybe they could build up to five days a week. 

They all met in school B, and it was agreed the Complainant would spend 4 days in school B and one day in school A and as soon as she was able the days in school A would be increased.  He wasn’t aware she wasn’t enrolled in school A her official enrolment was in school B, but he still thought she was enrolled in school A also. 

He did not find out until early 2024 that she was not enrolled in school A.  They wanted her to return to school A as it is their local school and all her friends are there and friendship is huge for her.  Resources were allocated to her in school A, and he believed she was enrolled there.  He submits this is each child’s right and not one child pitted against another.  They had a meeting planning re-enrolment.  They sent an email 30 May requesting SNA A be assigned to the Complainant and school A replied on 6 June and the rationale provided does not address the Complainant’s specific case and there was no discussion in relation to his child - not that he doesn’t have empathy or care for other children of course he does. 

Their solicitor sent a letter to school A and there was no sit down no workarounds and they could have worked through it.  Creative ways could have been brought to the table to find the most reasonable accommodation.  She got zero %. 

School A will say there was engagement and yes but was it centered on their child’s individual needs or were they the steps the Complainant needed – no they were not tabled to her needs. 

On the day she ran away school A was notified the Complainant’s mother would not be at home but he was there and he was on a call between 10 and 10.30 and at 10.35 the doorbell rang and the Complainant was at the door by herself they were coming up behind – both adults were outside the wall of his property.  The Complainant ran into the house and there was a brief conversation with school A Principal saying this isn’t working. 

The impact of the first few months was huge; the Complainant had been happy full of beans and it turned into not eating, not sleeping, wetting the bed. 

This would all have been avoided by people doing their job and caring enough. 

Summary of cross-examination of Complainant’s father

It is put to the Complainant’s father regarding school drop off that there were days the Complainant would be late which he accepts.  It is put to him that the only change on the days she was late was that SNA A would have taken up work with another child and was available to the Complainant when she got there. 

He submits he wasn’t told the Complainant wasn’t enrolled in school A until he sought the 3 days and he believed she had never formally left.  It is put to the Complainant’s father that there can be no confusion and that only a parent can enroll a child and he is asked if he filled in a form for school B to which he replies no.  The Complainant’s father submits the capitation grant conversation was between the two Principals and he offered to pay a capitation grant. 

It is put to the Complainant’s father that, if he was confused about the enrolment, that confusion ceased when they sought a return to 3 days in school A and whatever about the confusion he now knows she is enrolled in school B and that school A had no SNA allocation for the Complainant as she wasn’t enrolled there but yet they had facilitated her.  The Complainant’s father does not accept that and it is put to him that it was entirely reasonable on the part of school A.

It is put to the Complainant’s father that he has now given evidence that on the day the Complainant ran away from the school she wasn’t alone.  He submits he could only see the Complainant when he opened the door and he now accepts there was somebody in pursuit and accepts there were people within his eyesight when he opened the door when that is put to him. 

It is put to the Complainant’s father that his wife gave evidence that the Complainant was alone and that it was put in writing and it is put to him that at no time was she alone to which he responds why were they running.  It is put to the Complainant’s father that he does not know what happened before he opened the door which he accepts. 

The Complainant’s father does not accept that SNA B had continuity with the Complainant.  He submits there could have been alternatives looked at.  It is put to him that this ignores the fact SNA A had been assigned to another child in line with her hours and those of that child and the school stands over the provision of accommodation and of providing the best possible option for the Complainant. 

It is suggested to the Complainant’s father that what he seeks is perfection and not reasonableness.

Complainant closing submission

This case is really about failure to make reasonable accommodation and the failure to provide SNA support.  The context ranges back to 2023.  There was a dual enrollment arrangement and there were concerns specifically reasonable accommodation not made available.  This is not about impugning the school.  An SNA is a significant job with lots of social value.  The Complainant did well in a mainstream environment in junior infants.  She was more dysregulated at the end of that year. 

There is a dispute as to the reason for the dysregulation and the Complainant says there was a change in policy.  The Complainant is unique and she has particularly unique needs.  The Complainant’s parents’ position is that they were never made aware that she was unenrolled and they were not aware another child was being deprived.  Reasonable accommodation then does not count to the reasonable accommodation that needed to be made in 1st class. 

We have uncontroverted evidence from the OT and from the psychologist and it is not understood why the school sought to undermine this.  The Complainant struggled with transitions and 1st class was a jump up in terms of academic and social demands.  The Complainant had greater needs that needed to be taken into account. 

With regard to the decision on 26 June the allocation did not take account of her needs at that time.  In terms of the reason given it is a retrospective attempt to provide a rationale and there was no substantive engagement on alternatives.  Two SNAs could have shared the time.  It is not clear what increased period of anxiety could be attributed the first time she was put on reduced time and educated in the corridors.  It is all attributable to SNA A not being allocated as her SNA. 

Applicable law is cited from sections 4 and 7. 

This is an extensive obligation that does not need to be perfect but it needs to be adequate.  Has the provider done all that is reasonable.  There was no creative solution offered and there was detrimental impact on the Complainant whey they changed her SNA. 

It wasn’t reasonable that the school did not engage and it wasn’t reasonable to insinuate that the OT and the psychologist had an obligation to engage with the school.  Because of the fixed policy on the rotation of SNAs the Complainant wasn’t able to avail of any of the supports in her unique circumstances.  The supports were not sufficient to address the lack of relational safety. 

The decision was made in June 2024 and it took effect in August 2024 which forms a continuance.  The impact only took effect in August and in December when the Complainant was removed.

Preliminary issue – RECKONABLE PERIOD / JURISDICTION

In this case, the Complainant has variously stated that the discrimination ended on 3 September 2024 (on her WRC form) and that the discrimination started on 3 September 2024 (on the ES1 form). It appears from paragraph 40 of the Complainant’s submission that the Complainant intended the latter but the burden of proof falls on the Complainant to establish a prima facie case and the Respondent awaits clarification on behalf of the Complainant in this regard before commenting further.

Para 40 Complainant submission:

The WRC Complaint Form, dated 25 February 2025, was filled out by the Complainant’s parents. This provided that the most recent date of discrimination was 3 September 2024.  This Complaint Form was completed without the benefit of legal assistance, and it is clear that the date provided was in error, in light of the detailed evidence provided in the Complaint Form regarding the Respondentschool’s failure to provide reasonable accommodation to the Complainant throughout September-December 2024.

In addition to the usual 6-month timeframe (for claims under the Employment Equality Act and/or other claims under the Workplace Relations Act 2015), section 21(2) of the Equal Status Act provides for a mandatory statutory process that must be followed prior to and in respect of any allegation to the WRC under the Act.  It is a mandatory requirement that the nature of an allegation of prohibited conduct is notified to the Respondent in writing within two months of when it is alleged to have occurred.

Only matters notified to the Respondent within two months of the event, explaining the subject matter of the complaint, can be dealt with by the WRC. It is respectfully submitted that only an allegation that has been notified on the WRC Complaint form and in the Form ES1 falls within the reckonable period and is properly before the WRC, clearly excluding anything that occurred after the said notification of the event by Form ES1.

The Complainant’s ES1 form was received 17 October 2024. The Complainant’s WRC Complaint form was received by the WRC on 25 February 2025.

Therefore, the Adjudication Officer has jurisdiction only in relation to matters that occurred within the 6 months prior to 25 February 2025 and 2 months prior to October 2024. The Statutory Reckonable period is accordingly 26 August 2024 to 17 October 2024.

Most of the matters cited on behalf of the Complainant fall outside of the reckonable period and it is respectfully submitted that the Adjudication Officer lacks jurisdiction in relation to any such allegation(s) or matters referred to in the Complainant’s Complaint form or submission. Matters that post-date the Form ES1 or WRC Complaint form cannot form part of the WRC claim. 

Strictly without prejudice and further to the foregoing, the temporal scope of the claim, is further limited/complicated by the dates identified on behalf of the Complainant, in making her complaint.

(a)    It is stated on the Complainant’s WRC complaint form that the most recent date of discrimination is 3 September 2024, meaning that the last act of discrimination, as at 25 February 2025, had occurred on 3 September 2024. In that case, the relevant period for the claim is 26 August 2024 to 3 September 2024.

(b)    The ES1 form was furnished on 17 October 2024, notifying the Respondent that the complaint was dated “3 September 2024 - present day”. In that case, the relevant period for the claim is 3 September 2024 to 17 October 2024. 11.

In this case, the Complainant has variously stated that the discrimination ended on 3 September 2024 (on her WRC form) and that the discrimination started on 3 September 2024 (on the ES1 form). It appears from paragraph 40 of the Complainant’s submission that the Complainant intended the latter but the burden of proof falls on the Complainant to establish a prima facie case and the Respondent awaits clarification on behalf of the Complainant in this regard before commenting further.   In further response to paragraph 40 of the Respondent’s submission, it is further submitted that it is well established that ignorance of the law cannot defeat the statutory time limits.  Without prejudice to the foregoing, it appears, that the complaint relates to the decision to assign SNA A to the Complainant, instead of SNA B.  However, this occurred in June 2024, outside of any possible reckonable period considered above. 

Substantive Complaint

Overview of Respondent written submission

It appears that the within claim has been instituted against the Principal of the respondent school and the school itself.  Neither are the correct respondent.  The correct respondent is the Board of Management of school A.   The Board of Management is consenting to the change of title and makes no argument in relation to the failure to institute proceedings against the correct respondent.

The within claim was instituted for and/or behalf of the minor child by claim form received dated 25 February 2025.  The claim form alleges that the Complainant was discriminated against on the grounds of her disability in that there was a failure to give reasonable accommodation.  The claim form states that the most recent date of discrimination is 3 September 2024.  Therefore, it is respectfully submitted that all and any allegations that are alleged to have occurred after 3 September 2024 are irrelevant for the purposes of this claim and outside the jurisdiction of the Workplace Relations Commission.

It is accepted that the Complainant has a disability for the purposes of the Equal Status Acts.

The Complainant’s claim is that she was denied reasonable accommodation in that she was denied the opportunity to continue working with a particular SNA for the academic year 2024-2025.  It is alleged that this was a denial for no good reason and against the recommendation of her therapists and this denied her access to her constitutional right to education.  It is alleged that this refusal impacted adversely on the complainant.

It is noteworthy that the account set out in the WRC claim form deals with many alleged incidents after the last date of alleged discrimination i.e. 3 September 2024. In the circumstances, as these are not matters properly before the Workplace Relations Commission, the within submissions will not address same.

At the outset, it is important to explain how SNAs are allocated to schools.  The Department of Education allocates SNAs to a school, not to a specific child.  The school applies for SNA resources based on the profile of the needs of the students in the school. The Department then determines the number of SNAs it will approve for the school. It is then a matter for the Principal to assess the needs of the students and allocate SNA hours to the students.  At the relevant time, the school had approximately 20 students who required assistance from SNAs and the school was allocated 8.5 SNAs by the Department.  Circulars 30/2014 and 49/2024 outline the SNA scheme and how the SNA hours are allocated.

The Complainant is a child with autism who inter alia requires SNA support. She attended Junior Infants in the respondent school for the academic year 2022-2023. Her SNA in Junior Infants was SNA A who had a full-time temporary contract at that time.  SNA A worked with the Complainant for the entirety of the school day throughout that academic year.

Due to concerns that the Complainant’s parents had in relation to the Complaint ‘masking’ during the school day, together with the lack of a special class in the school, the Complainant’s parents wished to dual-enrol the Complainant in school B Special School and the Respondent school to support her social and emotional development in particular.  The Department of Education does not recognise dual-enrolment and therefore the Complainant was enrolled in school B special school.  

The Respondent facilitated the situation by permitting the Complainant to attend class in its school initially one day a week which was subsequently increased to two days a week.  It is respectfully submitted that this shows the significant efforts that the respondent went to accommodate and facilitate the needs of the Complainant.  The Complainant’s SNA allocation was only with school B because she was not an enrolled pupil of school A. 

As a consequence of the aforementioned arrangements for Senior Infants the Complainant had two class teachers - one in school B and one in the Respondent school A and two SNAs in school B and one SNA in the Respondent school who was SNA A.   

The Complainant’s parents decided to enrol the Complainant full time in the Respondent school A for first class – the academic year 2024-2025.  The handover documentation received from school B highlighted challenging behaviours including hitting and attempts to escape the classroom and school grounds. 

In or around June 2024 a decision was made as to how to assign SNAs to the students that require SNA support.  As set out above the school had 8.5 SNAs for approximately 20 students who had additional needs and required the support of an SNA.  It was recognised by the Principal that the Complainant and 5 other students required full time SNA support while in school.  The remaining 2.5 SNA’s had to support the remaining 14 students.

The policy of the school, which is in line with best practice, is to rotate SNAs between students and not have an SNA assist a student for more than 2 years.   This best practice is set out in Circular 30/2014 as follows:

Good practice is that SNAs will be aware of the various configurations of support such as close proximity and distance, as appropriate, with dependency upon a particular SNA being avoided.

The Complainant’s parents were made aware of this policy and wrote to the Principal by email dated 30 May 2024 asking that an exception be made and seeking that SNA A remain the Complainant’s SNA. The Complainant’s parents supported this request by attaching two letters of support from the Complainant’s psychologist and occupational therapist.

It is important to note that at this time SNA A had in fact received a permanent contract (February 2024), but it was only a .5 contract.  Therefore, the reality of the situation was that even if SNA a was assigned to the Complainant she would not be her SNA on a fulltime basis and in fact the Complainant would then have to have 2 SNAs.

In all of the circumstances the Principal determined that it would be appropriate to assign SNA B to the complainant as her SNA.   SNA B had over 15 years’ experience as an SNA. The class teacher was also the most experienced teacher among the 22 mainstream class teachers in the school and had significant experience with pupils with additional needs.

The Principal decided that this was the appropriate allocation for the following reasons:

·       It was school policy based on best practice to rotate SNAs

·       SNA A had a .5 contract and therefore would not be available to the Complainant on a full-time basis.

·       The Complainant, the previous year, had 2 class teachers and 3 SNAs between the two schools she attended.

The Principal also spoke to the SENO (Special Educational Needs Organiser) assigned to the school [REDACTD] and outlined the views of the Complainant’s therapists and the decision he had come to. She (the SENO) supported his decision and did not indicate that she felt the decision was wrong or unfair to the Complainant in any way.

The Complainant’s parents were notified of the decision by email dated 26 June 2024.  The Complainant’s parents responded by emails that day and following day - 27 and 28 June in essence asking for the matter to be reconsidered. The Principal responded by a further email dated 28 June 2024 stating as follows:

“As mentioned at our meeting on June 6th, your request was noted.  Having given due consideration to the needs of all pupils with additional needs in the school, SNA B is the SNA who will work with The Complainant next year.  All SNA's are trained as professionals who work with pupils with additional needs.  As you know, the Principal has overall responsibility for the allocation of staff (teachers and SNA’s) and the decision is final”.

It is also noteworthy that the Complainant was assigned an unprecedented level of SET hours for first class in an effort to support her.

The Complainant did attend the school for first class and initially got on well and then difficulties did arise. The Respondent notes that the Complainant’s parents appear to suggest that the challenging behaviour exhibited by the Complainant could be attributed to the change of the SNA.  This is disputed by the Respondent who relies on the handover documents from school B.  The Complainant stopped attending the school after December and the Respondent understands that she is now attending a different mainstream school which has a special class.

It is not in dispute that the Complainant has a disability within the meaning of the Equal Status Act.

Law relied upon by the Respondent

A Student v A Secondary School DEC-S2018-018; Deans v Dublin City Council Unreported 15 April 2008; Dublin Corporation v. Gibney EE5/1986; The Rotunda Hospital v. Noreen Gleeson DEE003/2000; Dr. Theresa Mitchell v. Southern Health Board, Cork University Hospital, DEE011; Nathan v. Bailey Gibson 1998 2 IR 162; Conlan v. University of Limerick 1999 ILRM 131.

Summary of direct evidence of school Principal on oath

The Principal qualified as a teacher in 2012 and he was in a DEIS school until 2019 where he established a special class for autism. 

The National Council for Special Education (hereafter NCSE) worked closely with them to open a special class for autism and there was capacity in that school and the NCSE provided training also. 

As Principal he has overall responsibility for assigning teachers and SNAs.  It is a complex job but there is a strong leadership team in a school of 592 pupils, 102 of whom require special support be that special education hours or SNA support.  44 out of the 102 require SNA support and the SNA allocation is 8.5. 

The special education teacher allocation is 6.6.

Special education teachers provide in class support which could be one-to-one.  SNAs provide for the primary care needs or secondary care.  The school is a really inclusive environment validated by their work with NEPS. 

There is a sensory room opened within the school community funded by the parents’ association.  There is a timetable for the use of it and that timetable included the Complainant at all times. 

The school got a grant from the local authority of €50k for a sensory garden which provides a calm safe place in the school environment and is open to the public in the evenings and at weekends. 

There has been an agreement in place for a number of years with NCSE for an autism class and there is agreement for 2 special classes.  This has been delayed in terms of planning and other factors and for the Principal it is a continuation of his work in his previous school. 

The school has 44 children with additional needs, details of which are outlined, and they always make their school community inclusive.  It is up to the school to assign SNA support to those who require the greatest level of support.  School B is a special school and school A is a mainstream school.  SNAs support primary care needs including mobility, feeding, toileting, tube feeding, peg feeding and it is a wide and varied job requiring lots of flexibility and adaptability and a child cannot be dependent on one adult as there will be a requirement during the day for an SNA to take comfort breaks and there may be instances of sick leave.  A child receives the most amount of support in junior infants and this decreases over time.  An SNA is assigned to a school and not to an individual pupil. 

The local SENO comes out to the school and looks at the profiles, the timetables and the care needs.  NCSE decides how many SNAs a school gets and it could be April or May before that allocation is released to the school.  The best practice is to rotate SNAs on a two-year cycle in trying to promote and encourage independence.  They take all factors into account including the level of training each SNA has. 

The Complainant was pleasant and friendly and she made lots of friends.  The anxiety started in or around March 2023.  It was most noticeable in the mornings and the Complainant was arriving late at school quite regularly anytime up to 9.30.  It wouldn’t have been appropriate for SNA A to have been waiting at the door for the Complainant to arrive so she would go to the classroom, and she would be available to meet the Complainant when she did arrive. 

The Complainant’s father contacted him to request he attend a meeting with him in school B in late June as the father said they were looking at dual enrollment for the Complainant.  This is not a recognised practice and the rationale given was that the Complainant was struggling and that school B would be more suitable.  His understanding from the meeting was that they spoke about enrolment and the capitation grant that they needed the numbers on their roll but the Principal of school B would need the Complainant on her books.  The Complainant’s father offered to pay the capitation grant in school A because the Complainant wasn’t enrolled there but she would attend on one day. 

The Complainant attended in school A for one day commencing in September and 4 days in school B.  In or around January or February the Complainant’s parents sought that she attend school A for three days per week which they would have loved to facilitate but this would have been to the detriment of other pupils given the SNA allocation. 

School A did everything to further the Complainant’s development at all times.  The Complainant’s father suggested an exceptional review of SNA allocation during the school year and SENO said this only applies to those enrolled in the school.  The Complainant’s parents sent an email to re-enroll but there is no such thing because you have to apply to enroll same as everyone else. 

Classes are capped at 27 and they did have space so he requested of the Complainant’s parents that they complete an application form.  The Complainant was offered a place for September and there was a meeting with her parents on 6 June to discuss her returning full-time.  The Complainant’s parents said they would like SNA A for the Complainant.  The school at that time was in the process of drafting timetables for SNAs and SET teachers.  The Complainant’s parents were advised that due consideration would be given to their request and the letters from OT and psychologist.

SNA B had worked in the adjacent classroom to the Complainant and she would have covered breaks etc. and she would have been present on the same school trips as SNA A.  The decision on the allocation of an SNA is made by the Principal and Deputy Principal, and it is huge balancing act and a complex process with a huge amount of moving parts and they were not in a position until 26 June to complete this. 

SNA B has 17 years’ experience and she worked adjacent to the Complainant throughout.  She has undertaken specialist training in managing anxiety in children.  SNA A is on a .5 contract which means she is present for half of the school hours.  They believed that it was important for the Complainant that she have a constant adult at all times.  If an SNA is doing an hour with the Complainant that is an hour that she is away from another child.  The child SNA A was looking after was on an infant day reduced further to a reduced school day.  Four pupils in school A had full-time SNAs and the Complainant is one of the four one of whom has [redacted] and the other two have complex needs.  They notified all parents on 26 June.  Emails were received from the Complainant’s parents on 26 and 27 June and the school responded on 28 June.

Each child is at the centre of the decisions made by the school and the school did the best they could with the resources they had.  An SNA on a .5 contract did not offer the continuity being sought by the Complainant’s parents.  SNA B knew the Complainant.  The class teacher communicated with the Complainant’s parents and forwarded a photo as requested by them.  The Complainant returned to school A at the end of August for 1st class and she was really happy for the first few days and she mixed with her peers.

The transition from home to school became more challenging in the mornings and the Complainant’s mother requested the Deputy Principal to contact her if the Complainant became distressed.  They would always try the various strategies first and if they didn’t work the parents would be contacted.  There was a workstation set up in the corridor for the Complainant if she didn’t want to go into the classroom.  The SET teacher changed her timetable so that the Complainant could do that first thing if she wanted to. 

NEPS contacts the school at the beginning of the school year and are assigned to work with the school.  [REDACTED] would work with the Complainant and her parents and it was [REDACTED] who recommended the reduced school day.  The school was not resistant to this support from NEPS and two pupils can avail of this assessment in an academic year and this would normally be in the later years of school before transition to secondary. 

On 13 November the Complainant became distressed, and the school contacted the Complainant’s father at 10.09.  The Complainant wanted to go out to yard, and she went out at 10.15 and didn’t want to come back.  SNA B alerted another SNA to alert him or the Deputy Principal.  The Complainant attempted to leave the school grounds, and he crossed over to the opposite footpath, and she crossed the road opposite to her house.  They couldn’t have been any closer to her, and they were acting in loco parentis at all times.   The Complainant’s father answered the door, and she ran past him up the stairs. 

The Complainant’s father laughed and said ‘she’s a little devil.’ 

The Principal submits he did not say “this is not working.” 

The school has to consider health and safety and this was a serious breach of the Code of Behaviour but they take an inclusive approach and had it been any other child that child would have been suspended. 

The Complainant was never placed outside of the classroom – a workstation was set up for her where she could do one to one and there was a tepee provided for her in the corridor also.  The Complainant’s parents have stated her difficulties were due to the assignment of the SNA B but those difficulties were not attributable to one single factor.  The Complainant had been in a very different setting the previous year in an unusual arrangement with school B. 

The Complainant was their pupil and he believed they had a great relationship with her parents and they are delighted to hear that she is thriving and doing so well now. 

Summary of cross-examination of school Principal

The Principal is referred to what the Complainant’s parents described as a change of policy in the mornings.  The Principal submits there was no change of policy and that the SNA was available on the line at 10 to 9 and that she could not wait there for 30 or 40 minutes for the Complainant to arrive while other children were missing out on support.  It is put to the Principal that the Complainant had been forced into the school to which he responds that he did not even know how this could work. 

It is put to him that he was aware of the difficulties the Complainant had transitioning and that she was familiar with SNA A.  The Principal states they were up to date with the needs of every child including the Complainant and they would have received all the emails from her parents of which there were hundreds. 

It is confirmed that school B is a school for children with intellectual disabilities and that it was a parental choice that the Complainant would attend there.  The Principal accepts that he never expected that she would attend there long term.

It is accepted the Complainant was doing well on the 2 days a week in school A – drop off was still a difficulty and he recalls times of chasing her around the school yard.  The school was facilitating the 2 days a week and SNA A was assigned to her and it is accepted a relationship builds up.  It is accepted needs develop and vary over time and sometimes they reduce or differ.  It is accepted the Complainant’s needs differed in 1st class and it’s up to the school to adapt to those needs. 

It is put to the Principal that the Complainant’s parents experienced a delay in re-enrollment.  It is not accepted by the Principal that there was any delay – the admission was filed online in accordance with all those seeking to enroll.  It is put to the Principal that the allocation of SNAs takes into account needs and factors of all children.  It is accepted that individual needs are important and it is accepted that information is required on those needs which could be clinical reports or psychological assessments. 

The Principal submits they also have to factor in children who do not have such reports and that their level of need has to be also factored in. 

The Principal is asked if he is questioning the letters (from the OT and Psychologist) to which he relies absolutely not and that they gave them due consideration, but they (the letters) don’t take into account the needs of all the other children.  The Principal submits it would have been great if the OT had spoken to the school before she wrote her letter as she would have been made aware that SNA A was going to be on .5 hours.

The Principal submits there was a meeting with the parents about the letters.  The Principal submits the school did not reach out to the authors of the letters when asked when it is put to him that it would have been helpful to the OT if she had known SNA A was .5 hours and not available. 

The Principal submits everything stated in the letters was given consideration when they were allocating SNAs.  SNAs work closely in the school as a community.  SNA B had experience and training in anxiety in children.  The school prides itself on their communication and relationship with parents and there is a log set up in 1st class to share with parents.

At the meeting in June they didn’t have the knowledge of where the SNAs were allocated and the parents were told the letters would be given due consideration, which they were, considering the school was at all times working with limited resources.  When decisions are being made individual needs are considered but also a myriad of other factors including job sharing, specialised training and the physical ability of an SNA and they have evidence before them of all children and their individual needs while making those decisions.   

It is put to the Principal that he understood the Complainant’s needs and assigned somebody who did not fulfil those needs.  The Principal submits SNA B had in the past covered for SNA A and would have interacted with the Complainant in yard during lunch and during drop-offs.  The Principal  is asked if he considers the 3 days SNA B covered in full for SNA A to be sufficient to which he replies that is a snapshot and makes reference to all the breaks she would have covered over the two years, being present in the yard and for drops offs and pick ups.   

The Principal clarifies and asserts that to say the Complainant was placed outside the classroom is inaccurate.  It was NEPS suggestion to create a safe space and the reduced timetable was suggested by the NEPS psychologist. 

Summary of direct evidence of Deputy School Principal on oath

The Deputy Principal started in the school in 2007 and was a class teacher for 16 years and became Deputy Principal in 2022.  His role is to support the Principal and to support the educational needs of all children and make sure all children are looked after.  He has undertaken postgraduate studies in leadership, special education and inclusivity.

During his course in UCD on inclusivity they would have visited many schools all of which had the practice of rotating SNAs every two years – building a community around the child.  There was no change in the Complainant’s level of support when she was in the school.  All staff go out to welcome the children in the morning.  The Complainant was struggling to make 8.50.  There are 44 children who need SNA access and SNA A was reallocated to another child until such time as the Complainant would arrive. 

In the 20 years since he has been teaching, he has never heard or seen an arrangement referred to as the dual enrollment.

He confirms he was copied on the June emails and letters from OT and psychologist and that he worked with the Principal on the allocations.  There were 102 students needing support and they try to accommodate as best they can given the resources they have.  They manage SNA access and SET time also and they take all factors into consideration. 

The main factor for the Complainant was someone familiar and she would have been familiar with SNA B.  She is the most experienced SNA in the school and would have previously worked with a child with a PDA profile.  SNA B would have observed the Complainant over time, and she knows her friends etc. 

SNA A is on a .5 contract and works with a child on a shorter day.  Making reference to the timetables exhibited at hearing it is explained that the Complainant was given three choices when she arrived in the morning of what she wanted to and she was given the autonomy to decide. 

The Complainant was the most resourced child in the school. 

The first few days were great and in September almost half the days were successful.  They took everything on board that NEPS suggested including the workstation and the tepee tent.

Cross-examination of Deputy School Principal  

It is accepted children’s needs change all the time through the educational journey.  It is accepted that the OT letter provided a clinical opinion.  It is accepted that SNA B was not working in the same room with the Complainant and SNA A but SNA B would have been in the room regularly covering breaks.  It is submitted the SET timetable was changed so that the Complainant would have a choice of what she wanted to do and everything the school did was Complainant-led and every resource was made available to her.  He accepts there were days when she was quite dysregulated.

Summary of direct evidence of SNA B on oath

17 years’ experience in three different schools with 10 years in school A.  She has undertaken a course in anxiety in children in the classroom.  It is incorrect for the Complainant’s parents to say she hadn’t met her before.  She worked with the Complainant when SNA A was out for three days in September and also in April 2023 and in senior infants on Fridays.   They keep a daily log and everything is recorded.

She met the Complainant before the school re-opened when her mother brought her in and the teacher asked her where she’d like to sit and she was happy out.  The first few days were great because she was in the line in the morning which helped her.  She needed a lot of help with academics even though she is very bright, but it was big change for her as there wasn’t a huge amount of academics in school B and also there isn’t the same amount of play time in 1st class.  After a few weeks she was too anxious to access the classroom.

The Complainant led on anything she wanted.  They got the tepee tent for her and put cushions and a blanket in it, and they would go in there for a brain break. 

The morning the Complainant ran home she was quite dysregulated and she wanted to go out to the yard.  She was absolutely not on her own when she ran off.  She said to her father that she (the Complainant) put the heart crossways in her.  She absolutely did not hear the Principal say ‘this is not working.’ 

Cross-examination of SNA B

It is accepted that 1st class places more demands and that the Complainant cannot process demands and it is submitted that is the reason she had the option of taking herself out of the classroom several times a day.  It is not accepted that she is a new SNA as she has been in the Complainant’s life for 2 years.  It is accepted there was a high level of anxiety in September.  It is not accepted notwithstanding the supports available to her she had difficulty transitioning and couldn’t access those supports and it is submitted she couldn’t access the supports because she was leaving early. 

Summary of direct evidence of SNA A on oath

Qualified in 2020.  There was no policy change at the end of 2023 she was always there for the Complainant.  The issues with drop off varied the Complainant would struggle coming in to school and she would get dysregulated.  When the Complainant came in late, she didn’t like going into class late and it would have been an easier transition when she came in with the line.  SNA A confirms that she was never removed from the line.  She works very closely with SNA B who is much more experienced than she is, and she would bounce a lot of things off SNA B who she got lots of guidance from.  She does not agree with the assertion that SNA B had never met the Complainant.  Apart from the days she worked with the Complainant when she herself wasn’t there she would have met her twice a day in yard over the two years and covering breaks regularly. 

Summary of cross-examination of SNA A

Reaffirms no change in policy she would walk out to the line and if the Complainant wasn’t there she would come back into the school.  She was assigned to the Complainant at all times, and she was with her from the time she came in to school to the time she went home.  Every child is different and every day is different.  With reference to a message exchange on what’s app introduced by the Complainant at hearing on consent with the other side submits that her role is to be flexible and the message could have referred to anything.  The Complainant can regulate a lot on her own she would run into the classroom toilet she had her invisible friend and she would script. 

Re-direct

Every day is a different day and the text could refer to some strategy she might have used could have been making a sandwich for example and it’s all related to how to get a child in the door.  SNA A confirms the what’s app traffic is on her personal phone and submits she did communicate a lot with the Complainant’s mother on it, but she now understands it’s not recommended that an SNA do that. 

Respondent closing submission

The burden of proof falls on the Complainant to establish a prima facie case before any burden shifts.  The Complainant has failed to establish any act of discrimination unless they are saying that the full-time provision of SNA B to the Complainant was an act of discrimination which couldn’t be further from the truth.  SNA B has the most experience and she is highly trained.  If there is no issue taken with the performance of her function it is hard to see a prima facie case. 

There were constant reviews undertaken, NEPS were involved and there was no failure on the part of the school.  The rotation of SNAs is not a fixed policy it is best practice.  Section 7(4)(b) provides a full defence referring to (2) section 7 (4) (2) (b)

If it is beneficial to all students it would be detrimental to remove it.  There was no requirement for the school to engage with the letter writers.

It is untrue to say there was no suitable engagement.  The Complainant was the most resourced student in the school.  There were no alternative suggestions made at the time.  The Respondent offered the Complainant the very best solution from the resources they had available.  The Complainant was offered a large allocation of SET hours.  It cannot be said that all that was reasonable was not done. 

No comparator has been identified and even if there was the Complainant would have been more favourably treated.  All that was reasonable to be done was done.  There was a web of needs that had to be balanced by the Respondent.  The OT recognises that her letter to the school was a recommendation.  One of the factors that influenced the decision to allocate SNA B to the Complainant was that SNA A’s hours allowed her to give continuity to another child while SNA B would be able to be with the Complainant all day.

There was a full balancing act undertaken by the school.  There was extraordinary facilitation by the school in good faith at all times.  The Complainant’s parents enrolled her in school B.  She would not have been facilitated there if she had not been enrolled.  This is all about reasonableness and proportionality and I refer to Clare (A Minor) v Minister for Education and Science [2004 IEHC 30].

The Respondent relies on the comment in ADJ-50103 and quotes therefrom as follows:

“I have the greatest sympathy for Ms. A in this case. She is understandably protective of her son and sought every available accommodation. However, I believe she was overly zealous in her efforts, seeking accommodations that extended beyond the reasonable measures the school had already taken in compliance with the Act.”

The Complainant’s parents have sought accommodation beyond reasonable measures.  The Complainant’s parents have not approached the school in good faith – they have made very serious allegations about the day the Complainant ran off which were entirely misrepresentative and in bad faith.  They have misrepresented the Complainant being placed outside the classroom. 

Reasonable accommodation is that – reasonable not perfect.  The Complainant’s parents are seeking perfection and not reasonableness.  It is submitted there has been no breach of section 4(1) and that section 7(4)(b) applies. 

Preliminary issue – RECKONABLE PERIOD / JURISDICTION

I set out hereunder my understanding of the jurisdiction of the Commission in the circumstances of the within complaint as presented in order that we may progress to the hearing of the substantive complaint having clarified the preliminary matter of jurisdiction at issue. 

Complaint pursuant to the Equal Status Act, 2000 (“the ESA”)

I note this complaint was filed with the WRC on the 25/02/2025. 

At the outset, this complaint of discrimination under the Equal Status Act, 2000 is subject to a notification requirement in accordance with Section 21 of the Act.  Accordingly, it is

relevant and necessary to set out the germane provisions of Section 21 in order to inform an inquiry into this preliminary jurisdictional issue. 

Section 21(2)(a) of the Equal Status Acts, 2000 – 2015 provides as follows: 

(2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

Section 21(3) of the Act states:

(a)    On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may –

(i)                  for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii)                exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

          and where such direction is given, this Part shall have effect accordingly.

(b)    In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including –

(i

)                  the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii)                the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint

The Equal Status Acts require a Complainant to comply with two separate time limits.  The first, at section 21(2), provides that a complainant must, within two 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. [emphasis added]

Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement. 

Second Time Limit

Section 21(6) provides as follows: 

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence. [emphasis added]

 (b) On application by a complainant the Director of the Workplace Relations Commission, or as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Section 21 6(b) set out above provides for an extension of the time period to twelve months for reasonable cause.  For the avoidance of doubt there is no provision which allows complaints outside of a twelve-month period to be heard.

The second time limit set out above at section 21(6) of the Act provides that a complaint of discrimination may not be considered by an adjudication officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months. 

The language in section 21 of the Act is prescriptive, clear and specific.  It is clear that the obligation to meet the time limits and notification falls squarely on a complainant.  Statutory requirements, such as the notification requirement are an important and fundamental necessary part of a proper operational judicial process and are present to create certainty for all parties and must be fully respected.

It is common case the within complaint was filed with the WRC on 25/02/2025.  Accordingly, the cognisable period, or the period to be taken into account when investigating a complaint, is six months ending on the date of referral of the complaint.  [emphasis added]

Therefore, the cognisable period of the within complaint is from 26/08/2024 to 25/02/2025 pursuant to the provisions of section 21(6) of the ESA.  It is well established that a complainant is not entitled to seek relief arising out of events post-dating the referral of a complaint.  

I note the most recent date of discrimination as set out in the WRC complaint is 03/09/2024.  Accordingly, accepting the date of 03/09/2024 as set out in the complaint form as the date of the most recent occurrence satisfies compliance with the provisions of section 6(a) of the ESA. 

Section 21 of the Equal Status Act 2000, as amended, states that before seeking redress the complainant shall within 2 months after the prohibited conduct is alleged to have occurred , or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence,notify the respondent of the nature of the allegation and their intention to seek redress under the Act as set out above. 

It is well settled that a complainant must establish they have complied with the notification requirements stipulated by the Equal Status Act, 2000 in order that an adjudicator officer can assume jurisdiction to hear the substantive matter.    

It is common case the Complainant filed an ES1 form on 17/10/2024 in compliance with the provisions of section 21(2) of the ESA as the 17/10/2024 falls squarely within the two-month time limit as set out in the ESA.  I note the Respondent replied by way of ES2 on 14/11/2024.  I note the Complainant filed the within complaint 25/02/2025 some three months after receiving the ES2. 

I note the Complainant’s submission that the “prohibited conduct was ongoing and continuous in nature from the beginning of that academic year” at para 29 of the supplemental submission. 

It is clear from this that the Complainant seeks to rely on a continuum of prohibited conduct.

Turning now to the relevant law in regard to a continuum. 

Section 21(11) provides as follows:

11)For the purposes of this section prohibited conduct occurs—

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

The Labour Court in Hurley v. County Cork VEC [EDA 1124] has held that occurrences of alleged discrimination outside of the statutory time limit set out in the Act can only be considered by the WRC or the Labour Court where the last act relied upon within the statutory time limit and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum.  It is necessary that a discriminatory act occurred within the cognisable period in order for an event occurring outside of that period to be considered as part of what is commonly referred to as a continuum meaning a continuous act of discrimination.   

The Labour Court noted in Occipital Limited v. Joseph Hayes[EDA 184] that it was -

“settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that an act of discrimination has actually occurred within the cognisable period set down by the Acts for the making of a complaint.”  [emphasis added] 

Therefore, there will be an onus on the Complainant in the within case to establish that the Respondent committed a prohibited act within the cognisable period namely between 26/08/2024 and 25/02/2025 in order that I may consider events occurring outside of that period. 

It is well settled that incidents of alleged discrimination outside the time limit can only be considered if the last act relied upon within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum. 

If it is found alleged incidents within the limitation period amount to unlawful treatment of a complainant contrary to the Act, the evidence adduced on the earlier incidents complained of is considered in order to establish if they are sufficiently connected to alleged incidents within the limitation period so as to make them part of a continuous act referred to as a continuum.

This is all a matter for evidence at the hearing of the substantive case. 

I will summarise that which is set out above in the interest of clarity and understanding.

·       The cognisable period of the within complaint as presented is from 26 August 2024 to 25 February 2025.

·       The statutory notification requirements under the ESA have been complied with when I consider the WRC complaint form which sets out the most recent date of discrimination as 03/09/2024 followed by the filing of an ES1 on 17/10/2024 within the statutory time limits.  

·       The jurisdiction of the WRC in terms of considering occurrences of alleged discrimination outside of the statutory time limits is set out above in Hurley. 

·       The test for establishing a continuum is set out in Occipital Limited.

Substantive complaint

The issues for determination in this complaint is whether the Respondent discriminated against the Complainant on the disability ground contrary to sections 3 and 4 of the Equal Status Act 2000, as amended (the “Act”), in relation to the provision of a service and whether the Respondent failed to provide the Complainant with reasonable accommodation for a disability.

In conducting my investigation and in reaching my decision, I have carefully reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the parties.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I have two versions of events before me that are entirely at odds in many respects. 

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law

At the outset, there is a statutory presumption that a child with special needs will be educated in a mainstream setting.

Section 2 of the Special Education Needs Act, 2004 provides as follows: 

“2.A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with—

(a) the best interests of the child as determined in accordance with any assessment carried out under this Act, or

(b) the effective provision of education for children with whom the child is to be educated.”

The Equal Status Act 2000-2015 (“the Acts”) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

The issues for determination in this complaint is whether the Respondent discriminated against the Complainant on the disability ground contrary to sections 3 and 4 of the Equal Status Act 2000, as amended, in relation to the provision of a service and whether the Respondent failed to provide the Complainant with reasonable accommodation for a disability.

Section 3(1) of the Acts gives meaning to ‘discrimination' in general across a broad range of grounds and provides that discrimination shall be taken to occur “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)...”  [emphasis added] 

Section 3(2)(g) defines the discriminatory ground of ‘disability’ as arising in circumstances when as between any two persons “…one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”. 

Section 4 of the Acts sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections 4(1) and (2) of the Act provide 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 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. 

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. 

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. 

(5) This section is without prejudice to the provisions of Sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.” 

Section 7 of the Acts specifically prohibits direct and indirect discrimination on any of the defined grounds by an educational establishment as follows:

“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, or

(d) the expulsion of a student from the establishment or any other sanction against the student.”

Section 7(4)(b) of the Act provides that educational establishments are exempted from the requirement not to discriminate on the disability ground as set out in section 7(2) if in not discriminating, there would be a consequential negative impact on the education of other students:

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, or

(d) the expulsion of a student from the establishment or any other sanction against the student, …

(4) Subsection (2) does not apply—

(a) in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events, or

(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. [emphasis added]

The Burden of Proof  

Section 38A of the Acts sets out the burden of proof which applies to complaints of discrimination: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”  It is well settled this requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference.  

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court in the case of Melbury v Valpeters [EDA0917] held as follows in the context of section 85A of the Employment Equality Act mirrored in the Acts:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Cork City Council v McCarthy [EDA0821], the Labour Court held as follows: 

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

In Margetts v Graham Anthony & Company Limited [EDA038], the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further clarified by the Labour Court.  The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added] 

The Equality Officer in Minaguchi v. Mr Ray Byrne T/A Wineport Lakeshore Restaurant [DEC-E/2002/20] stated as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

·       That s/he is covered by the relevant discriminatory ground(s).

·       That s/he has been subjected to specific treatments; and

·       That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In order for the Complainant to meet the burden of proof on she must first identify a comparator who received more favourable treatment than he did.  She must also establish the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before the burden of proof is met by the Complainant so that it then shifts to the Respondent.

Equality law is based on comparison – how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to support a claim of discrimination by pointing to how another person (the comparator), not having the protected characteristic relied upon, was, is or would be treated in a comparable situation.

The wording of section 3(1) “would be treated” set out above allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

In cases involving less favourable treatment, a comparator can be actual or hypothetical and in this I am guided by Henry Denny v. Rohan [EDA1310] where the Labour Court followed the decision of the House of Lords to that effect in Shamoon v. Chief Constable of the RUC [2003] IRLR 258.  Where the treatment complained of is because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic.  An appropriate comparator could be a person in a similar set of circumstances who does not have a disability or a person who has a different disability. 

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”   

Reasonable Accommodation

In the matter of Kim Cahill v Department of Education and Science [2017]IESC 29 McMenamin J held as follows: 

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state as follows:

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

I have regard to the High Court judgment of Cahill v Minister for Education and Science [2010 IEHC 27].  This was a case under the Equal Status Acts concerning the annotation of the Leaving Certificate for students who were give special accommodation.  The nature and scope of service providers’ duties towards students with disabilities under Sections 3, 4 and 5 of the Equal Status Acts is defined as follows:

 “Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirement of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them…” [emphasis added]

In considering reasonable accommodation, I note that section 4 of the Act requires the respondent to do “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”.  

In this regard, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council unreported (15 April 2008), Hunt J considered the concept of reasonableness in the context Section 4 of the Act and stated as follows:  

 … reasonableness must be judged according to the context of the individual 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.” [emphasis added]

I am cognisant of A Student v A Secondary School (DEC-S2018-018) where it was held as follows:

 “It is clear that section 4 of the Equal Status Act obliges the service provider to do all that is reasonable to provide special treatment or facilities to allow the person with a disability to avail of the service where it would be unduly difficult or impossible for her to do so otherwise. This is an assessment made objectively. It is an expansive obligation as it requires all that is reasonable. As opened by the respondent, the Circuit Court held that the solution offered by the service provider must be reasonable and need not be perfect. Section 4(5) refers to the provisions of the Education Act that relate to special needs education. This is a without prejudice" provision and ensures, in my view, that special education needs fall within the ambit of reasonable accommodation and the Equal Status Act.” [emphasis added] 

The Relevant Facts

It is not in issue that the Complainant has a disability within the meaning of section 2 of the Acts. 

The Respondent is an educational establishment within the meaning of section 7 of the Acts.

I note that much of the relevant factual matrix is agreed between the parties notwithstanding the significant disparity in much of the evidence adduced at hearing and set out in the written submissions. 

I note the direct conflict in the evidence adduced in relation to the manner in which events unfolded on the day it is alleged the Complainant ran away from school on her own and ran home; the alleged change in school policy whereby it is claimed the Complainant’s mother was informed that the Complainant would no longer be supported in morning transitions into school by her regular SNA; and the conflicting evidence adduced by the parties on the dual-enrolment in schools A and B. 

Both partes were polarised in the evidence adduced with regard to access to the sensory room.  The Complainant’s mother at hearing submitted the school had said the Complainant couldn’t access the sensory room.  The school Principal at hearing submitted there was a timetable for the use of the sensory room and the timetable included the Complainant at all times.    

Nothing turns on any of the aforesaid conflicts in the evidence adduced for the purposes of this decision as the alleged events occurred well outside of the parameters of the cognisable time period.    

The kernel of this complaint as presented is the Complainant’s claim that she was denied reasonable accommodation by the Respondent by reason of her disability when she was not provided with the SNA for 1st Class that had been requested for her by her parents.  I note the Complainant’s submission on the preliminary issue of jurisdiction submits the prohibited conduct now challenged by the Complainant is “the imposition of the fixed and inflexible policy in relation to the rotation of SNAs over a two year cycle.”   

The Complainant commenced 1st Class at the end August/beginning of September 2024.       

The Complainant representative sought to go into evidence relating to matters as far back as when the Complainant commenced in Junior Infants in order to provide understanding and context in regard to her complaint and there was no issue taken with this. 

Evidence regarding events falling outside of the complaint was allowed by way of background information for context.  Given the history and nature of this complaint it has been necessary to set out the evidence in detail.

Accordingly, the positions of both parties are set out in considerable detail in this decision.    

It is not in dispute the Complainant’s parents requested that the SNA allocated to the Complainant in Junior and Senior Infants should be allocated to her again for 1st class.  It is not in dispute and it was acknowledged by the Complainant’s parents that it was school policy that SNAs would rotate in line with the provisions set out in Circular 0030/2014 as follows; “Their role is not to act as a constant personal assistant to individual children, who need to be able to develop independent living skills and to associate independently with their classmates.” 

The Complainant’s parents acknowledged awareness of the school policy in an email to the school on 30 May 2024 as follows:

“Hi [redacted] and [redacted]

We understand you are working on the allocation (including SNA, SET etc) for the next school year namely September 2024. 

We know you had previously mentioned the school policy of rotating SNA’s and not having an SNA assist a student for more than 2 continuous years.  However, given [redacted] unique circumstances and the recommendations attached from both her Psychologist and OT, we kindly request that you make an exception with continuity of SNA A for the following reasons and for the reasons outlined by her therapists.” [SIC]

I note the correspondence from the Complainant’s solicitor on 16/08/2024 expressing concern and alarm that “there does not appear to have been reasonable consideration provided to the professional reports furnished and that any school policy of rotating over a two year cycle should not be superseded by considerations as to the best interests of the child.” 

The aforesaid correspondence sought confirmation that the matter be reviewed and a failure to do so would “mean providing our clients with further legal options, including an official complaint to the Ombudsman for Children and to the Department.” 

I note the within complaint was filed with the WRC on 25/02/2025.  I would make the observation there was no evidence presented to the hearing on the outcome of the official complaint to the Ombudsman for Children or to the Department in the intervening period.  Nothing turns on this for the purposes of this decision; it is merely an observation. 

Prima facie case

There are two components to a valid prima facie case.  The first component of a valid prima facie case is the requirement to identify a comparator who received more favourable treatment than the Complainant did. 

The second component of a valid prima facie case is that the Complainant is required to establish the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. 

The Complainant did not proffer any evidence to show that the treatment she was subjected to was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.

There was no evidence submitted that would establish that the Complainant had been treated less favourably than another person is, has been or would be on the ground of disability as required by Section 3(1).

It is well established in the caselaw set out above that not being afforded the accommodation that one might desire does not automatically make it illegal.   

Over the course of a 2-day hearing, I heard evidence from the Complainant’s parents, and it is readily apparent that they would do everything they possibly could to achieve what they perceive to the best outcome for their child.  Whilst acknowledging the school policy of rotating SNAs they sought an exception to the policy and enlisted the assistance of the Complainant’s OT and Psychologist in support of their endeavours, all such endeavours culminating in a letter from their solicitor to the school. 

I do not accept the assertion made at hearing by the Complainant’s father that ‘this would all have been avoided by people doing their job and caring enough’ as this allegation is simply not substantiated or borne out by fact as I carefully review all the evidence adduced.      

I heard evidence from the school Principal and the Deputy school Principal and it was readily apparent that the school was fully committed and seeking, within strained resources, to balance the needs of all students including the Complainant and would do everything they possibly could to deliver the best possible outcome for all the 102 children requiring special support including the 44 requiring SNA support with an SNA allocation of 8.5.   

I heard evidence from SNA A and SNA B, and it was readily apparent that they were both dedicated in their role to supporting teachers in meeting the care needs of children with special educational needs arising from a disability including the Complainant.   

It is readily apparent from the evidence adduced that the school had gone way above what was required in the past in accommodating the Complainant and I note and I take into account that in her closing submissions the Complainant representative submits that the historic reasonable accommodation does not count to the reasonable accommodation that needed to be required for 1st class.    

I note and I have regard to the best practice of rotating SNAs as set out in Circular 30/2014 as follow:

Good practice is that SNAs will be aware of the various configurations of support such as close proximity and distance, as appropriate, with dependency on a particular SNA being avoided. 

I note also, apart at all from best practice, SNA A had received a permanent contract in February 2024 which was a .5 contract, and she was not available full-time in any event.  SNA A was deployed accordingly to provide SNA support to a child on an infant day, reduced further to a reduced school day, which was in line with her working hours and which I am of the view would reasonably be considered to be the most efficient use of a resource whilst trying to address the needs of all children requiring SNA support against a backdrop of limited resources.      

I note SNA B is the most experienced SNA in the school.  I do not accept the evidence of the Complainant’s mother at hearing that SNA B had never met the Complainant; she didn’t know her and there was no connection. 

This statement is not substantiated or borne out by fact. 

I accept the Complainant was provided with the most experienced SNA in the school who had many previous interactions with the Complainant and who was an FTE (full-time equivalent) thereby ensuring continuity for the Complainant as submitted by the Respondent.    

Notwithstanding and for completeness, I have regard to section 7(4)(b) of the Acts which provides as follows:

“(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.”

I am guided by the High Court decision Clare v. Minister for Education and Science [2004 IEHC 350] where it was held as follows:

“The school was entitled to balance the rights of Richard and the other students in his (intended) class… such that on the basis that the facts and the correspondence are true, is not discrimination. (Section 7.4(b) of the Act of 2000)”.

The High Court held that a school is entitled to conduct a balancing exercise between the needs of one student and the needs of the wider school community which is of particular relevance in my consideration of the totality of the circumstances in the within case and leads me to the following conclusion on the balance of probabilities.      

I find that the Complainant has not established a prima facie case discrimination on the ground of disability and/or of a failure to provide her with reasonable accommodation.   

Having engaged with and having carefully considered the totality of the evidence, I am satisfied that the section 7(4)(b) provisions set out above apply in this case and I make this finding for the reasons set out above.   

CA-00069570-002

Section 25 of the Equal Status Acts 2000-2018 requires that I make a decision in relation to this complaint.  I have concluded my investigation and based on reasons outlined above I decide that section 7(4)(b) applies and there was no discrimination. 

Accordingly, I decide this complaint is not well-founded.