2 Named Complainants
(Represented by Ms. Siobhan Phelan, BL, on instruction from the Equality Authority)
V
Minister for Education and Science
(Represented by Mr. David Keane, BL, on instruction from the Chief State Solicitor's Office)
Complaints in accordance with the Equal Status Act 2000
The two named Complainants each referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainants' Case
Complainant A
At the time of the alleged incident of discrimination Complainant. A was a second level student suffering from dyslexia. She applied for 'reasonable accommodation' in respect of her leaving certificate examination in 2001. She was refused the 'reasonable accommodation' and this was appealed. This appeal was also refused. There was considerable confusion in the correspondence emanating from the respondent. This second refusal was also appealed and she was granted a waiver in relation to the assessment of spelling/grammar in language subjects. The respondent wrote to the complainant advising her of this waiver and that the grades obtained by her in any language subject would be accompanied by an explanatory note which would read as follows:
In the case of English:-
"All parts of the examination in this subject were assessed except the spelling and written punctuation elements."
In the case of other language subjects:-
"All parts of the examination in this subject were assessed except spelling and some grammatical elements."
On 1st August 2001, the complainant's father appealed the decision regarding the proposed notation. The appeal was considered by three members of the Independent Appeals Committee and the Department's decision was upheld. The Complainant's father then wrote to the Data Protection Commissioner objecting to the notification on the grounds that it revealed personal, confidential and medical information which invites discrimination without serving any useful educational purpose. In response the respondent contended that the notation was required if they were to afford a level playing field and that applicants had the option to seek reasonable accommodation or not at their election. A complaint was lodged with this Office on 13th February 2002. The complaint alleges discrimination on the grounds of disability on the basis that the presence of a notation on her Certificate reveals the fact that she has a disability and requires her to explain and justify her results and places her at a disadvantage with regard to prospective employment.
Complainant B
At the time of the alleged discrimination the complainant was a second level student suffering from dyslexia. She also applied for 'reasonable accommodation' in respect of her leaving certificate examination in 2001. Complainant B was also granted the waiver which would include the notations described above. The appeals procedure was invoked in relation to the notations because the complainant's father felt it constituted labeling resulting in discrimination against the complainant. The respondent's position was upheld and the complainant's father was provided with a copy of the Expert Advisory Group's report in relation the assessment of candidates with special needs. The complainant's father sought to have representations made through his T.D. The respondent Minister indicated that the inclusion of an explanatory notation was rooted in the principle of inclusiveness and the making of examinations more open to students with special needs. A complaint was lodged with this Office on 18th July 2002. The complainant alleged discrimination on the basis that a Leaving Certificate containing notations which labels her as a person with a disability had issued.
Both Complainants
From January 2002 on the Equality Authority exchanged correspondence and met with the respondent. The complainants' representative finally confirmed to me that they had exhausted their direct contacts with the respondent and I began my investigation in 2005. Outline legal submissions were made on behalf of both complainants. A responding submission on behalf of the respondent was made primarily dealing with the complaint from Complainant B although it ultimately served as a response to both cases. Both parties submitted substantial information in respect of the practice in other jurisdictions, in national universities and both presented expert witnesses.
Summary of the Respondent's Case
The respondent does not dispute the incidents as described by the complainants. What is disputed is that any of the actions taken by the respondent could amount to discrimination. The following is an extract from the respondent's submission with the complainant's name altered.
"Complainant B alleges that the Department of Education and Science (hereafter "the Department") discriminated against her by issuing her with a leaving certificate containing notations which, she claims, label her as a person with a disability. Complainant B further claims that, as a result of the discrimination which she alleges, she will be forced to reveal and explain her disability to prospective employers, even where it has no relevance. Complainant B alleges that she is being treated less favourably than other students who are not placed at such a disadvantage.
The Department denies Complainant B' s claim. It contends that Complainant B has been given an exemption from an element of the standard assessment in a number of subjects (which exemption is not available to candidates generally). Even though the purpose of the examination regarding that element has demonstrably not been met, Complainant B has benefited through having her grade determined on the balance of her work in each such subject. This places Complainant B, not in a position equal to that of the majority of other candidates, but in a more advantageous position than them.
The footnoting of the fact that Complainant B was assessed on all parts of the examination in each subject except 'spelling and written punctuation elements' in English and 'spelling and some grammatical elements' in other language subjects, is a necessary balance to protect the integrity of the examination certification process. The relevant certificate does not record that Complainant B suffers from a disability, either directly or by inference.
Where an accommodation is made that simply assists in, or permits, the assessment of a core skill, then no explanatory note is necessary and none is appended to the certificate. Examples of accommodations in this category would included the provision of aural tests by face to face interview, the provision of enlarged or Braille examination papers or of examination papers without graphics, the provision of additional time, and the provision of special examination centres. The excision of a core element of the exam is an accommodation of a different order, however. Such accommodations include the use of tape recorders, word processors, dictation software (with the spell-check facility enabled) or scribes in subjects that involve an assessment of spelling and punctuation skills, or the use of readers in subjects that involve an assessment of comprehension. The grant of an exemption from assessment constitutes a further obvious example of an accommodation of this kind - whether the exemption is from an oral test, an aural test, or the examination of spelling, punctuation and grammar. In the provision of reasonable accommodations, there is nothing arbitrary in the distinction between requiring annotation where the testing of a core competency has been affected (or prevented) thereby, and not requiring such annotation where it has not. The difference between accommodations that affect the testing of core competencies and those that do not is one of the central distinctions that the Complainant's submissions fail to address.
Complainant B requested the pertinent exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of the relevant notations when those exemptions were approved.
Complainant B's spelling and written punctuation in English has not been assessed in her Leaving Certificate examination, nor has her spelling and written grammar in the other language subjects that she has taken at that level (Irish and French). The deletion of the appropriate notation from her Leaving Certificate would misrepresent to any person invited to consider, or to rely upon, that document that Complainant B's marks in the relevant subjects include, and reflect, an assessment of those skills.
The Department does not accept that the notation concerned labels Complainant B as a person with a disability. The use of tape recorder by a candidate due to a sprained wrist would result in the same notation. Nor does it accept that the existence of the notation 'forces' Complainant B to reveal and explain the nature and extent of her disability to a potential employer, even where it is not relevant. Where it is not relevant Complainant B is not obliged to reveal it or explain it. For these reasons, the Department does not accept that any privacy issue arises on Complainant B's complaint. Even if any privacy issue did arise, it would be counterbalanced by the right to free expression.
The relevant notation appears on Complainant B's Leaving Certificate, solely because Complainant B requested and received an exemption from the spelling and punctuation or spelling and grammar components of the Leaving Certificate examination in the subjects concerned. This exemption has placed Complainant B, not in a position equal to, but in a position more advantageous than, that of the majority of other students taking those subjects in that exam. The Department does not accept that Complainant B has been treated less favourably than other students. The purported 'disadvantage' of the notation can only accrue where the undoubted advantage of the exemption (or similar accommodation) has been obtained. The balance that has been struck by the Department is a reasonable accommodation. To exempt a person from examination in a core competency, and to thereafter conceal that fact by omission on the relevant certificate, would be to confer an unreasonable advantage on the person concerned; to correspondingly disadvantage other candidates; and to undermine the fundamental integrity of the Leaving Certificate examination process."
The submission provides a substantial amount of background information and then goes on:
"The Department's Overall Approach
There is no assumption in the Department that the present system is sacrosanct. Nor is there a belief in the Department that absolute objectivity in that examination has been, or can be attained; the Department accepts that absolute objectivity can only ever be strived for. Nevertheless, equity and fairness dictate that that must be the goal. The Department cannot abandon its pursuit of objectivity by unreasonably advantaging one group of candidates (with a particular disability) over the rest. The Department must strive for equity between candidates.
The Department acknowledges that syllabuses, examinations, and forms of assessment continue to evolve. That is why there has been an expert Advisory Group Discussion Paper and Report on Special Arrangements/Reasonable Accomodations. That is why there has been a Task Force on Dyslexia. That is why the National Council on Curriculum and Assessment was established, and why it continues to keep curriculum and assessment under review. That is why a State Examinations Commission has been established to develop, assess and accredit the second level examinations of the Irish state.
Complainant B's Application For An Exemption
As already set out above, Complainant B requested the relevant exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of those notes when those exemptions were approved. In respect of her English examination, the relevant note reads: "All parts of the examination in this subject were assessed except spelling and written punctuation elements". In the case of Complainant B's other language subjects (which the Department understands were Irish and French) the notation states: "All parts of the examination in this subject were assessed except spelling and some grammatical elements." The letter of exemption went on to expressly state: "Clearly no explanatory note will be necessary in any subject where the skills listed above are not under assessment". That is the key principle which underlies the notation procedure and it is important to bear it in mind in considering the practice in, and case-law of, other jurisdictions.
The Complainant's father appealed against the proposed annotation of her leaving certificate by an undated letter in the Spring of 2001. The unavoidable implication of this appeal would appear to be that the Complainant (or the Complainant's father on her behalf) was seeking an exemption from a core assessment to which most other students were to be subject; was seeking to have her grade determined solely by reference to the other elements of her work; and was seeking to have the information that - in contrast to the vast majority of other candidates - her spelling and punctuation (or spelling and grammar, as the case might be) had not been assessed at all, withheld by omission from any future 'user' of her leaving certificate. Perhaps, it was not appreciated that other candidates could lose marks under the relevant heads, whereas the Complainant could not. The Department replied by letter dated the 31st May 2001, explaining the principles underlying its decision and enclosing a copy of the Expert Group Report. The Minister for Education and Science replied to representations from Seamus Brennan T.D. on the same issue by letter dated the 30th August 2001.
The Complainant instituted the present complaint by the submission of an ODEI 5 Form on the 19th April 2002 and a Form ODEI 2 on the 18th July 2002.
Entirely disregarding the exemption sought and granted; the far-reaching accommodation constituted thereby; and the significant advantage it represents, Complainant B's complaint seeks to isolate, and focus solely upon, the corresponding annotation on her leaving certificate. This ignores the fact that the annotation is inextricably bound up with the exemption. It does not constitute a free-standing difference of treatment. Had Complainant B received no exemption, there would have been no annotation. It is the exemption which is free-standing. That exemption (coupled with the necessary annotation) is either permissible as reasonably necessary to promote the special interests of dyslexics or else it represents an impermissible discrimination in Complainant B's favour as against other leaving certificate examination candidates."
Interaction between Parties
The following is a description of the correspondence and interactions between the parties before the Tribunal's investigation. This was included in the submissions made on behalf of the complainants.
In the absence of a Response to the First Named Complainant's notification of complaint, the Equality Authority wrote to the Respondent on the 14th of January, 2002 requesting delivery of the response. By letter dated the 29th of January, 2002, the Respondent replied setting out the rationale for the examination notation practice. The Respondent indicated that whilst the thrust of policies in the area is to make the second level examination system more flexible and responsive to the needs of students who would otherwise have difficulty with some examination subjects because of their special needs. The Respondent contended that examination notation was necessary because it would not be credible for the Department:
"as the national certification authority to conceal the fact that it had not assessed publicised core assessment criteria determined by the National Council for Curriculum and Assessment".
The Respondent further contended that it would be misleading not to include the examination notation stating:
"if we were unable to make the nature of the assessment modification explicit we would in effect be concealing the fact that standard national assessment did not apply."
The Respondent continued:
"it is also important to point out that a candidate opts to apply for a particular accommodation and where such an application is approved there is no obligation on a candidate to avail of it. There is no coercion by the Department. It is an elective process for the candidate concerned."
On the 5th of November, 2002, the Respondent wrote to the Equality Authority further to a meeting held on the 27th of September, 2002 to confirm the basis for the Respondent's policy to include an explanatory note on examination results. It was clear from the Respondent's letter that the Respondent's policy had been the subject of review and the Respondent stated that:
"in considering policy development in this area the core question raised in relation to the State Examination was whether the Department, given current curriculum, should insist on all candidates sitting the same examination in all circumstances, or modify our examinations to be more inclusive and open to students with special needs".
In justifying examination notation, it was contended on behalf of the Respondent that:
"the Department's core rationale in this respect is that it has a central role in the certification process. It is responsible for providing and implementing the test instruments and examinations that comprise the national assessment process at second level. In this context the Department has a fundamental role in underpinning the credibility and currency of the certificate examination results, both for the purpose of entry to further education and for entry to the world of work."
The focus of the Respondent's submissions in this case to date is on the integrity of the examination process. It is worthy of some comment that there is an assumption that runs through the submissions made by the Respondent that the exam process is sacrosanct that that it is absolutely objective. No evidence is produced to confirm this viewpoint but this view point is clearly discriminatory as it proceeds on the basis that one size fits all, thereby discriminating against students with disabilities.
By letter dated the 12th of August, 2004, the Equality Authority again wrote to the Respondent advising that it had conducted research into the question of examination notation and the integrity of the examination assessment process. Based on this research which showed a range of different practices in other jurisdictions, the Equality Authority contended that the integrity of the examination system would not in any way be compromised by a decision to cease annotating the relevant leaving certificates.
It was pointed out that the examination system had evolved and was capable of evolving further to reflect good educational policy. In their letter, the Authority reminded the Respondent that its perceived role as "gatekeeper for third level institutions and potential employers" and its overarching responsibilities must be exercised in a manner that complies with the Equal Status Act, 2000 which prohibits less favourable treatment on grounds of disability or type of disability and requires reasonable accommodation through the provision of facilities and services.
Complainant's Legal Arguments
The following is an extract from the complainant's submissions.
It is respectfully submitted that the Respondent is in breach of Sections 3(2)(g) and 5(1) by providing less favourable treatment to the Complainant on grounds of disability and also breaches section 4(1) by reason of a failure to provide reasonable accommodation within the meaning of the Act.
This submission will be made on the basis of evidence to the effect that standardized are discriminatory because they assume that each student taking the test will read in the same way but a student, such as the Complainant, who has dyslexia cannot process words in the same way as other students. In applying standardized testing to a student with dyslexia, the Respondent insists on testing disability and not ability. The standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind. This, it is submitted is discriminatory and the only means available to the Respondent to alleviate the discriminatory impact without developing an alternative test which permits the testing of the Complainant's ability, is to accommodate the student. To make the examination system fair in a standardized system such as the Leaving Certificate, however, this accommodation must by adapted to the situation so that, in reality, the student is competing on a level playing field. Were the accommodation properly effected, then there would be no requirement to annotate the results because the test results would properly measure ability.
Accordingly, the need for annotation on the grounds advanced by the Respondents, only exists if there has been no reasonable accommodation in the first instance. Furthermore, the act of causing a notation to appear on an examination certificate perpetrates a whole new act of discrimination. The Complainant is being treated less favourably than other students, the certificate is defaced and her achievements demeaned. The Complainant is further discriminated against in that her right to privacy is not protected in like manner with other students. By annotating the certificate, the Respondent has caused a signal to be sent to the world at large that the Complainant is disabled, in complete violation of her right to privacy protected both under constitutional law and international human rights law. Any accommodation which requires such a breach of a fundamental human right in order to be made available to a student cannot be construed as reasonable within the meaning of the Act which falls to be construed in the light of the Constitution.
Discrimination
The Respondent is guilty of a double discrimination against the Complainant. It forces the Complainant to sit a standardized examination which it contends cannot properly measure the Complainant's ability as the publication of the results would "conceal" the reality of the test result. To fail to provide an examination system which permits a disabled persons ability to be measured in comparison to others without reference to their disability is discriminatory. It then causes a notation to be inserted on the examination certificate to explain that the Complainant was not tested in various aspects of the subject, thereby suggesting that the Complainant's result is not a real result which is as meritorious as the result of a student obtaining the same overall grade but without the notation. This is discriminatory. Still worse, if identifies to the world that the Complainant is a person with a disability. This compounds the injury to the Complainant and is discriminatory.
Insofar as the central thrust of the Respondent's argument in meeting this case is the requirement to uphold the integrity of the examination assessment system and its transparency, the Respondents seem to rely on the need for each student to sit the same examination in order to ensure the integrity of the examination system. The examination system, however, as currently operated gives marks for spelling and grammar. To obtain a standardized examination certificate without notation a student must be assessed in spelling and in grammar. The Respondent's argument that this is necessary to uphold the integrity of the result, however, fails to take account of the fact that such a test does not represent a fair assessment of the ability or educational attainment of a student with dyslexia and an assessment on the basis of spelling and grammar is not a neutral means of assessing educational attainment. Clearly, students with dyslexia will have greater difficulty performing in such an examination but the result they achieve will not be a true measure of their attainment because they have been assessed in a discriminatory manner by requiring persons with dyslexia to be marked on spelling and grammar before their level of attainment in a language subject can be measured. It is respectfully submitted that the Respondents have failed to justify their requirement that students with dyslexia be assessed as to spelling and grammar before a standardized examination certificate will issue. It is respectfully submitted that there is no objective justification for this requirement within the meaning of the Act.
It is respectfully submitted that the annotation of Leaving Certificates constitutes discrimination against people with learning difficulties. The annotation of scripts does not occur for people who do not have a disability or for people with certain other disabilities. It has been acknowledged by the Respondent that the explanatory notation is used in certain cases of reasonable accommodation and not in others. The impact of the notation is significant in that it undermines the value of the State Examination Certificate and the real attainments of the student at the said examinations by flagging to the world (in particular, prospective employers) that the result does not represent the actual ability of the student in a given subject. This also has a demoralizing impact of the student.
It is worthy of special note that that Irish universities do not themselves generally provide information on grade transcripts about the taking of their own tests under non-standard conditions. Such grade transcripts are essential to securing places for third level graduates in further education (whether in Ireland or abroad) and in securing employment. It seems that unlike the Respondent, Irish universities do not operate under the assumption that employers (whether in Ireland or elsewhere) and others have a right to know that their degree results were obtained under "non-standard" conditions.
It follows that the insertion of a notation on an examination certificate assists a discriminating employer to identify a student with a disability even in advance of interview resulting in the unlawful exclusion of the said student from interview because they have a disability or the less favourable treatment of the student at interview. The Respondent points out that it should not be held responsible for the discriminatory acts of third parties but this is to ignore the fact that it is the practice of the Respondent in annotating test results to indicate the presence of a disability (thereby pre-identifying a candidate for employment as a disabled person) which renders it possible or easier for discriminating employers to effectively discriminate and consequently, the action of annotating directly causes or facilitates discrimination contrary to the whole objective of the Equality code. It is to further ignore the fact that annotation in itself reveals the existence of a disability and thereby offends against the Complainant's right to privacy as protected under the Constitution and results in an invasion of the disabled person's constitutional rights thereby resulting in a tangible and immediate less favourable treatment of the Complainant directly related to the act of notating and caused by the Respondent.
The Respondent's response to this appears to be that the Complainants have elected to use the accommodation and have therefore consented to the publication of private information concerning them and identifying them as disabled persons. This response is unacceptable in law because it fails to comprehend the fundamental basis for reasonable accommodation which is that the person requires the accommodation to enjoy access. Accordingly, the accommodation is not an optional extra which the student can elect to use or not. The accommodation, however inadequate, is required so that the person has access to the examination.
The Respondent provides a service through the establishment of a system which measures educational attainment. In failing to provide for the equal measurement of the Complainant's level of attainment without also ring-fencing the student as a disabled person, the Respondent actively discriminates against the Complainant. If the student is penalized by the annotation of her test results by reason of reliance on an accommodation, the student continues to be treated less favourably than other students with regard to access to State examinations.
The act of inserting a notation on the certificate is in itself discriminatory. In effect the accommodation given is negatived by the notation. Students with a disability are treated less favourably than other students by the inclusion of the notation which only occurs where a student has a disability (thereby invalidating the accommodation made).
Further because the Respondent has failed to provide reasonable accommodation in ensuring that the examination system is equally balanced for all comers permitting real attainments to be measured on an equal basis (thereby amounting to a failure to reasonably accommodate), the examination system remains discriminatory.
The effect of the notation is to penalize the student for using non-standard accommodation on the presumption that so called "reasonable accommodation" (in the sense envisaged by the Respondent) somehow confers an unfair advantage on the disabled student rather than merely permitting the student to compete on a level playing pitch. If the effect of the accommodation were really to confer an unequal advantage then the accommodation in question is not "reasonable accommodation" within the meaning of the Equal Status Act, 2000.
Reasonable Accommodation
The Equal Status Act, 2000 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, if without such treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. The purpose of reasonable accommodation within the meaning of the Act (as opposed to Department literature) is to ensure genuinely equal opportunity and therefore, a legitimate and comparable testing outcome. The purpose of reasonable accommodation within the meaning of the Act is not to confer an unequal advantage on a disabled person (which seems to be implicit in the requirement for a notation system with regard to the Respondent's scheme) but rather to require the adjustment of the modalities of the examination to enable ability to be accurately recorded and measured. Therefore, the very rationale of "reasonable accommodation" is not to confer an advantage but to ensure a genuinely level playing field for all candidates.
It follows that if the rationale for notation advanced by the Respondent were to be accepted (in essence, the "credibility and currency" of national assessment criteria i.e. comparability), then the Respondent has, per se, failed in its responsibility to provide "reasonable accommodation" in accordance with the requirements of the Act because were reasonable accommodation in place the examination method used would be capable of providing comparable results.
The Tribunal has interpreted "reasonable accommodation" as requiring the giving of consideration to alternative means of providing access. The failure to find or to consider an alternative to notation as a means of assessing educational achievement in a language subject constitutes a failure to provide reasonable accommodation. Furthermore, the requirement to annotate the results posited by the Respondent, if followed to its logical conclusions, evidences a failure to provide reasonable accommodation within the meaning of the Equal Status Act in the manner in which the Respondent provides its so-called reasonable accommodation. The accommodation fails or is ineffective if notation remains necessary to ensure a level playing field. It is respectfully submitted that the provision of an ineffective accommodation amounts to a failure to provide reasonable accommodation.
In short, the assistance that is provided by the Respondent does not constitute reasonable accommodation insofar as the only accommodation which appears to be available to a person with dyslexia is the modification/waiver which the Respondent insists is elective. Reasonable accommodation within the meaning of the Act is not an optional extra and the purpose of reasonable accommodation is to level the playing field. The Respondent appears to consider reasonable accommodation to confer an unequal advantage for a person with a disability but this, it is respectfully submitted, is to wholly misconstrue "reasonable accommodation" within the meaning of the Equal Status Act, 2000. The Respondents are required by section 4 of the Equal Status Act, 2000 to provide "reasonable accommodation" so that a student can be assisted in overcoming a discriminatory barrier. A student who avails of the right to reasonable accommodation cannot then be said to be advantaged because the accommodation was necessary in the first place to protect against discrimination. To annotate the examination script perpetuates the discrimination which reasonable accommodation, properly construed, protects against.
The Right to Privacy and the Meaning of Reasonable Accommodation under the Equal Status Act, 2000
The Complainant enjoys a constitutionally protected right to privacy (Article 40.3). The Complainant also enjoys a right to privacy under the European Convention on Human Rights (Article 8) which has been incorporated into Irish law through the provisions of the European Convention on Human Rights Act, 2003. Insofar as the Respondent has any discretion with regard to the extent or nature of the accommodation it provides in accordance with the Equal Status Act, 2000, it is respectfully submitted that as a matter of law this discretion must be exercised in accordance with the requirements of constitutional justice and in a manner which vindicates and respects constitutionally protected rights.
It is submitted that the failure of the Respondent to respect and vindicate the Complainant's right to privacy must mean that the accommodation provided does not constitute "reasonable accommodation" within the meaning of the Equal Status Act, 2000 which is presumed to bear a constitutional interpretation and is presumed to require vindication and respect for constitutional rights in the manner in which accommodation is mandated in the Equal Status Act, 2000. Similarly, the Respondent is required to exercise its discretion in a manner compatible with the requirements of the European Convention on Human Rights (section 3, European Convention on Human Rights Act, 2003).
Insofar as it falls on the Tribunal to interpret the meaning of "reasonable accommodation" under the Equal Status Act, 2000 and to judge the treatment of the Complainant by the Respondent in this regard, the Tribunal is respectfully reminded of the duty to construe the provisions of the Act in a manner which is compatible with the Constitution (double construction rule) in the case of any ambiguity and the requirement under the European Convention on Human Rights Act, 2003 to interpret legislation, where possible, in line with the requirements of the Convention.
Respondent's Legal Arguments
The following is a further extract from the respondent's submission.
The Equal Status Act 2000
Complainant B claims to have been discriminated against by the Department of Education in the provision of a service, contrary to the terms of Section 5(1) of the 2000 Act. While the Complainant's submissions do not identify the 'service' at issue, paragraph 3 of Complainant B's ODEI 2 Form would suggest that it is the certification of her tested accomplishment at leaving certificate level. Of course, Complainant B's accomplishment in the spelling and punctuation elements of English and the spelling and certain grammar elements of her other language subjects has never been tested at that level. It is the simple and neutral annotation to this effect on her leaving certificate which she alleges amounts to discrimination between her and other candidates without exemptions. The marks available to Complainant B in the other tested elements of those subjects have been increased proportionately, so that she was eligible for the same marks total as other candidates, although - unlike them - she could not lose marks for spelling, punctuation or grammar.
Section 5(2)(h) of the 2000 Act
Section 5(2)(h) of the Act, to which the Complainant's submissions do not refer at all, states:
"Subsection (1) does not apply in respect of-
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those interests."
Of course, the exemption/annotation arrangement is just such a difference in treatment (of the category of persons who are dyslexic), provided for the principal purpose of promoting for a bona fide purpose and in a bona fide manner, the special interests of dyslexic examination candidates. The Department introduced the exemption/annotation system in the belief that this difference of treatment was reasonably necessary to promote those special interests. The Complainant appears to contend that an undisclosed exemption is, in fact, reasonably necessary instead. In either event, it is difficult to see how Section 5(1) can be properly invoked by Complainant B in respect of a service that squarely falls within the terms of Section 5(2)(h).
Section 3(2)(g)
In the submissions filed on her behalf, the Complainant argues that there has been a breach of both Section 5(1) and Section 3(2)(g) of the Act. Section 3(2)(g) provides:
"As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the "disability ground")"
The Department submits that Section 3(2)(g) provides a definition of one of the 'discriminatory grounds' (in this case, the disability ground) prohibited by Section 5(1) of the Act. Perhaps this is what the Complainant's submissions in this respect are intended to convey, in which case there is agreement between the parties on this point.
Section 4(1)
The Complainant's submissions are unambiguous in asserting the Complainant's case that the Department has breached both Section 5(1) (whether or not coupled with Section 3(2)(g)) and Section 4(1) of the 2000 Act. Section 4(1) states:
"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 a person the person to avail himself or herself of the service."
Four points must be made concerning this provision. First, it does not constitute a separate prohibition in addition to that provided by Section 5(1) of the 2000 Act but rather an elucidation of what constitutes discrimination on the disability ground contrary to that prohibition. The issue of whether the Section 5(1) prohibition applies at all - in light of the terms of Section 5(2)(h), has already been addressed.
Second, the question must be asked; what is the special treatment that it is alleged the Department failed or refused to provide by way of reasonable accommodation in this case? The Complainant applied for and received an exemption in the examination - by way of special treatment - which was not available to the general body of candidates. This special treatment left her in a position of advantage over the general body of candidates, rather than in a position of equality with them. The annotation on her certificate that certain assessments have not been carried out is a reasonable and necessary measure in light of that advantage. It prevents persons invited to rely upon that certificate from being misled by omission about the nature of the assessments performed. It provides transparency and openness in the certification process for the benefit of candidates generally. And for those two reasons it protects the integrity of the examination and certification process. The Complainant's argument to the contrary entirely ignores the reasonable accommodation/special treatment already provided to her through the exemption from which she has benefited, save to the extent that she claims an entitlement to it in addition to an entitlement that her leaving certificate should mislead concerning it by an omission that conceals the limited nature of her assessment. Such concealment by omission would call the integrity of the examination process into most serious question.
Third, in invoking the sub-section, no basis is provided for the implicit assertion that, without the excision of the relevant annotation, 'it would be impossible or unduly difficult' for the Complainant to avail of the service at issue (i.e. certification of the results of the assessment of her accomplishment at second level). The strained and artificial nature of Complainant B's claim in this regard is demonstrated by the fact that she has availed of the service concerned. Complainant B sat the certification examination with the benefit of the exemptions that had been sought by her. The 'impossibility or undue difficulty' test applies much more neatly to the sitting of the relevant examinations without an exemption than it does to the truthful and accurate certification of actual accomplishment that results.
Fourth, Section 4(1) of the Act falls to be construed in conjunction with Section 4(5). Section 4(5) states:
"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 of Education and Science, recognised schools and boards of management in regard to students with a disability".
Section 7(2)(a) of the of the Education Act 1998 provides:
"(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act...."
(emphasis added)
Section 2 of the 1998 Act defines "support services" to include the assessment of students and the conduct of examinations including the Leaving Certificate examination.
The Complainant's argument, which ignores the foregoing provisions entirely, fails to explain how Section 4(1) of the Act can be invoked in the present case, when that section is expressed to be without prejudice to the provisions of Section 7(2)(a) of the Education Act 1998, which in turn states that support services to students, including students with a disability, are to be provided as the Minister considers appropriate. For the avoidance of doubt, the Minister, having adopted the recommendations of the Report of the Expert Advisory Group, considers the exemption/notation procedure in its present form, to be an appropriate support service.
Section 14 of the 2000 Act
Section 14 of the 2000 Act provides in relevant part:
"Nothing in this Act shall be construed as prohibiting-
(b) preferential treatment or the taking of positive measures which are bona fide intended to-
(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs."
The exemption/notation practice adopted by the Minister by reference to the Report of the Expert Advisory Group is just such preferential treatment or just such a positive measure, intended to cater for the special needs of dyslexic leaving certificate candidates in certain subjects.
The Arguments
A Standardised Test - But Not An Inflexible One
Paragraph 19 of the Complainant's submission appears to be predicated on the assertion that the Department administers an inflexibile standardised test in the leaving certificate to persons with a disability and, in particular, to persons with dyslexia. As already demonstrated above, that is simply not correct. Special Arrangements for persons with dyslexia have been in place for many years. Those arrangements extend from, at one end of the spectrum, the making of an exceptional effort to decipher and mark scripts, to, at the other end, the grant of facilities such as the use of tape recorder or computer. The grant of an exemption with appropriate annotation, as recommended by the Expert Advisory Group, and as availed of by Complainant B in this case, falls somewhere in between. It is therefore wrong to say that the standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind.
Evidence that the Leaving Certificate is Discriminatory?
At paragraph 19 of the Complainant's submissions, it is stated that evidence will be adduced to the effect that standardized tests are discriminatory. The Department respectfully requests that the Complainant be directed to provide notice of the nature and content of that evidence in advance of the hearing before the investigating officer, in order that it might be properly considered, and tested if necessary at that hearing.
The Means of Testing and the Accomplishment Tested
The fundamental misconception at the heart of the Complainant's argument is that spelling, punctuation and grammar are merely the mechanism through which achievement is tested in language subjects. It is certainly the case that spelling, grammar and punctuation are merely part of the means (i.e. the written word) through which achievement (in the form of level of knowledge) is tested in some subjects. So, in a history examination for example, one can test a candidate's level of knowledge through the spoken word as effectively as through the written word. However, in language subjects, the ability to write with accurate spelling, grammar and syntax is an integral part of the achievement that is being tested.
The Department is not 'testing disability' instead of 'ability'. One might as well say that the driving test is not a test of ability but rather a test of the disability of the vision impaired; or that an oratory competition is a test of the disability of the speech impaired. The Department is testing spelling, grammar and punctuation because these are still considered to be valuable skills (or core competencies) in language subjects. The Department is not seeking to test the disability of persons with dyslexia.
Every testing authority throughout the world acknowledges that not all disabilities can be perfectly accommodated in every circumstance. In particular, in an examination the very purpose of which is to objectively grade candidates according to ability in a particular discipline, a disability in that discipline is extremely hard to accommodate without unfairness to other candidates. In a sight test, can a visually impaired person be accommodated such that he is eligible to receive higher marks than those obtained by a fully sighted person without affecting the overall integrity or credibility of the test? Can a dyslexic person be accommodated in a spelling, grammar or punctuation test such that he is eligible to receive higher marks than those received for spelling, grammar and punctuation by a non-dyslexic person without affecting the overall credibility of that test? This is the difficult problem that the Department faces, and it has sought to deal with it by granting the Complainant an exemption with annotation in this case. It cannot be correct to argue, as the Complainant's submissions do at paragraph 19, that if an accommodation were properly effected, there would be no requirement to annotate the results because the test results would properly measure ability. The Complainant did not want her ability at spelling, grammar or punctuation properly measured because, due to her disability, that measurement would have been low. The Complainant wanted, and received, a complete exemption from that measurement.
No Discrimination
There is no discrimination in failing to arrange an equitable spelling test between persons with dyslexia and persons without it, just as there is no discrimination in failing to arrange an equitable sight test between fully sighted persons and those who are vision impaired, or a hearing test between those with normal hearing and those who are hearing impaired.
The Complainant is not being treated less favourably than other persons - she has been in receipt of an exemption not available to the vast majority of other candidates. The Complainant's certificate has not been 'defaced'; it has been annotated to accurately reflect her accomplishment. In no way has that accomplishment been demeaned by the annotation at issue.
No Breach of any Privacy Right
The Complainant's privacy rights under both international and domestic law have been, and remain, at all times entirely unaffected by the relevant notation of her leaving certificate. That notation does not send a signal of any kind to anyone - let alone the world at large - that the Complainant is disabled. Even if it did, the leaving certificate examination is a public examination. The Complainant's leaving certificate is in her own possession. It is a matter for the Complainant to whom she chooses to disclose its contents. The Complainant applied for the exemptions concerned in the knowledge that, if granted, the relevant annotations would result. The annotations concerned do not in any way, shape or form affect any privacy right enjoyed by the Complainant, either under Article 40.3 of the Constitution of Ireland, Article 8 of the European Convention on Human Rights and Fundamental Freedoms, any statute, or the common law. Moreover, there is a countervailing right to freedom of expression under Article 40.6.1° and under Article 10 of the European Convention on Human Rights and Fundamental Freedoms (which includes a right to receive and impart information), which is also recognised in the domestic law of the State pursuant to the European Convention on Human Rights Act 2003.
Preferment not Penalisation
At paragraph 21 of the submission under reply, an extract is set out from the report of a United States disability rights advocacy group, the Disability Rights Advocates Group (DRA). It is difficult to see the relevance of the passage quoted to the facts at issue. This is not a case in which any school has withheld the benefits of doing well from a student using a non-standard accomodation. Complainant B received an exemption from assessment in certain aspects of the relevant examinations and a proportionate increase in the marks awarded to her in respect of the remaining aspects of those exams. Complainant B has, in all probability received higher marks than she would have otherwise received, and exactly the same benefit (i.e. grade) as that of any other person who received the same total number of marks (without the benefit of such exemption). There has been no 'penalization' of Complainant B for using the accommodation concerned. There has been no failure on the part of the Department to conduct any appropriate research.
The paragraph of the DRA Report immediately preceding the one quoted in the Complainant's submission begins with the sentence: "The test results of disabled students who participate in the assessment with accommodations should count for whatever purposes the assessment system has been validated." The assessment system at issue here (the Leaving Certificate) has been validated for the purpose of assessing overall accomplishment at the end of the secondary school cycle. Complainant B's marks in the subjects concerned (even though she obtained exemptions unavailable to the majority of other candidates) count towards that assessment in exactly the same way as those of any other candidate.
University Examinations - An Inappropriate Analogy
At paragraphs 4 and 25 of the Complainant's submissions, heavy reliance is placed on the assertion that the Irish universities do not annotate grade transcripts when tests are taken under non-standard conditions. The implicit suggestion is that a direct comparison between second and third level exam certification is appropriate and instructive. However, no account is taken of any of the following factors:
It is not stated whether the 'non-standard conditions' under which the tests concerned are taken includes the availability of an exemption from assessment of a core competency. It is only where a core competency cannot be tested that a leaving certificate is annotated accordingly. Under any other non-standard condition (i.e. in relation to the provision of any other reasonable accommodation), leaving certificates are not annotated.
It is not acknowledged that the universities are autonomous in their assessment procedures. Grade transcripts are not centrally certified to provide direct equivalence between universities i.e. identical grade transcripts issued by different universities may be weighed quite differently by their end users. The leaving certificate strives for universal equivalence between the grades obtained by all candidates.
It is not acknowledged that grade transcripts alone do not constitute the sole measure by which post graduate places are secured. This may be contrasted with leaving certificate grades which, of course, do constitute the sole measure by which eligibility for the majority of places at third level is decided.
In these circumstances, the comparison sought to be made is entirely unhelpful, if not invidious.
Conclusions of the Equality Officer
Prima Facie Case
I must first consider whether the existence of a prima facie case has been established by the complainant.
The matter referred for investigation turns upon whether or not the complainant was discriminated against in terms of Sections 3(1)(a), 3(2)(g), 4 and 5 of the Equal Status Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Where the disability ground is the basis for a complaint I am satisfied that the key issues to establish a prima facie case are as follows:
(i) Are the complainants covered by the discriminatory ground? (in this case have the complainants a disability?)
(ii) Is there evidence that they have been subject to a specific treatment by the respondent?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv)Did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainants' needs as students with a disability, which made it impossible or unduly difficult for them to sit the Leaving Certificate examinations and receive standard Certificates?
(v) Would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants have not got to satisfy all the issues above they need to satisfy test (i) (that they are covered by the disability ground) plus tests (ii) and (iii), or test (iv) (that is that the respondent has failed to provide reasonable accommodation in accordance with section 4 of the Equal Status Act).
If and when those elements are established the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. Where the complainants succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
Essentially this is the approach provided for in the Burden of Proof Directive (Council Directive 97/80/EC). In adopting this approach I am conscious that the Directive is not directly applicable to the complaint in hand under the Equal Status Act, 2000, but I consider that the Directive has persuasive effect in discrimination law. It is notable that the Labour Court and Equality Officers applied the practice of shifting the burden of proof in discrimination cases long before any European Community caselaw required them to do so (as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 (Equality Officer: Gibney), and that this was a consistent practice across a spectrum of cases 1. European Court of Justice caselaw did not address the issue of the shift in the burden of proof for the first time until the Danfoss and Enderby cases so this was not done purely in implementation of Community law. It seems to represent an indigenous development in Irish discrimination law, which was in advance of Community law. There is no reason why it should be limited to employment discrimination or to the gender ground. The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson and by the High Court in Conlon v University of Limerick . While these were both indirect discrimination cases, it seems that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred." In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: "when persons who consider themselves wronged..... establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination". In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: " This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. "
This shift in the burden of proof has now been formally adopted in the legislation in Section 38A(1) of the Equal Status Act 2000 (as inserted by the Equality Act 2004).
Section 3and 5
Direct discrimination and the Disability Ground
Section 5 states that a person shall not discriminate in providing a service whether its for consideration or otherwise and whether the service provided can be availed of only by a section of the public. I am satisfied that the service provided by the respondent to the complainants amounts to a service in terms of the Equal Status Act 2000. Secondary education and its assessment is a service which is available to the public or a section of the public. Education was evidently intended to be embraced by this legislation as it is mentioned in Section 4 and Section 7. Section 3 of the Equal Status Act, 2000 provides, inter alia:
3. -- (1) For the purposes of this Act, discrimination shall be taken
to occur where --
(a) on any of the grounds specified in subsection (2) (in this Act
referred to as ''the discriminatory grounds'') which exists
at present or previously existed but no longer exists or
may exist in the future, or which is imputed to the person
concerned, a person is treated less favourably than
another person is, has been or would be treated,
(2) As between any two persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are:
....
(g) that one is a person with a disability and the other either is
not or is a person with a different disability (the ''disability
ground''),
This suggests that discrimination shall be taken to occur where, on the grounds of a disability, a person is treated less favourably than another is treated. It is agreed by all parties that both complainants had a disability at the time of the provision of the Department's reasonable accommodation and the issue of the certificates which satisfies (i) above. It is agreed that the complainants sat their Leaving Certificate examination in 2001 and received annotated certificates which satisfies (ii) above. It is also agreed that other students were treated differently at the time of the issue of the certificates. What is at issue is the respondent's contention that the provision of accommodations to the complainants amounted to a considerable advantage over and above what was available to students who did not have a disability and that this advantage had to be balanced by annotation of their Certificates in order to redress the imbalance between students, to maintain the integrity of the certification system and for transparency purposes. The respondent argues that since the annotation of Certificates only arises where the considerable (usually termed unfair) advantage has been granted, any other treatment cannot be considered less favourable.
The Bundling of Reasonable Accommodation and Annotation
The respondent argues that the annotation arises only because the complainants have applied for and been granted reasonable accommodation. They argue that the annotation can only arise because the complainants have already been treated more favourably than others in the first place. While this arguably displays a fundamental misunderstanding of the reasonable accommodation provisions, Section 4, in the Equal Status Act 2000 in the first place it also assumes that once you provide some form of favourable treatment you are then at liberty to balance this treatment in whatever way is considered appropriate. It also assumes that Section 3 of the Equal Status Act 2000 cannot then be applied to that balancing treatment. It was also argued that Section 4 of the Equal Status Act 2000 cannot stand alone as a definition of discrimination. In my view, however, Section 4 extends the previous definitions of discrimination included in Section 3 by including the failure of a service provider to provide reasonable accommodation as defined. It does not require a link with Section 3. (See the treatment of Section 4 below.) There is an inherent contradiction in the respondent's argument in this regard since it is argued that Section 4 cannot stand alone while at the same time it is argued that the balancing treatment only arises as a result of Section 4 treatment and should be considered in that light only.
I am satisfied that the mere existence of an alleged reasonable accommodation in terms of Section 4 cannot rule out consideration under Section 3 of other treatments.
Comparator and Less favourable treatment
There are a variety of groups to which the complainants could be compared.
- Students without disabilities
- Students without disabilities and those with disabilities who do not require the exemption from assessment of spelling and grammar.
- All students who have had results adjusted
There is another group of students who have their results adjusted in a similar though different way to those who have applied for exemptions. When the complainants applied for their reasonable accommodation they were assessed on all aspects of their examination except spelling and grammar. Therefore they were assessed only on say 90% of the available marks. Their marks were then rounded up to represent a score out of 100%. With regard to those who sit their examinations through Irish, they are awarded up to an additional 10% for their achievement. However, no note of this is made on their certificates.
- All students who applied for reasonable accommodation. (Not all reasonable accommodations attract annotation.)
I am satisfied that the appropriate comparator is either a student without disabilities or a student with a different disability to that of the complainants and whose disability does not require exemption from a 'core element' of a course, or both.
The annotated certificates issued to the complainants are certainly different to the certificates issued in general by the respondent. Therefore those receiving the annotated certificates are being treated differently. The complainants argue that the issue of the certificates with the relevant notations is less favourable treatment in comparison with others. Certainly Complainant A was caused great embarrassment on the day of the results when all her friends wanted to know why her paper was different and what the notes meant when she had not previously revealed her disability. Complainant B described difficulties she perceived arising in an employment where her Leaving Certificate was submitted. In any event the complainants received certificates indicating their scores. The annotation of their certificates indicates that their score was not achieved in standard conditions. The note clearly implies that their score does not reflect the same achievement as it would for a student without the note.
I accept that employers who routinely use leaving Certificates as part of their recruitment process would quickly come to know that the only people with annotated certificates are people who had a disability of some sort at the time they sat the examinations. Those employers would be remiss if they failed to check what the annotation was about in order to ensure that the applicant could perform the job for which they had applied. Therefore in my view the annotation reveals details about the certificate holder which they may not have been otherwise obliged to reveal wherever it was not relevant. The Department has revealed information about the complainants in a manner which can lead to only one conclusion, that they were suffering from a disability at the time of the examinations. In such situations the decision to reveal their disability or not has been taken out of the hands of the complainants.
While the integrity of the certification system is vital, and is correctly something to be aspired to, the Department's position is entirely undermined in this regard when one considers the adjustment of marks given to those who sit their examinations through Irish. Those students are given an extra 10% in some subjects, 5% in some others. The Department was asked to provide samples of Leaving Certificates of students who sat their examinations through Irish. While the certificates submitted on request relate to the year 2005, these bear no indication that an adjustment has been made and they are not annotated in any way. Therefore an end-user is being misled as to the student's achievement in the subject at issue. The respondent argued that in the case of an Irish adjustment the student has been examined in all aspects of the subject and no one section has been omitted as is the case with spelling and grammar under their reasonable accommodation arrangements. However, these students are given extra marks which, although they show creditable expertise in Irish, bear no relation to the student's expertise in the subject being examined. While there has been advice that this practice of adjusting the marks of those who sit their examinations through Irish should be ceased, that is not at issue here. If a policy decision has been taken that such an increase in marks would increase the use of Irish I see no reason why it should be discontinued. What is at issue is the respondent's treatment of the marks adjustment. Where the marks are adjusted because the subject is taken through Irish no annotation is made with no apparent concern as to the end-user being misled. Where the marks are adjusted on foot of an application for reasonable accommodation because of a disability the certificate is annotated reflecting concern about misleading the end-user. If it is suggested that to annotate the certificates of those who have been granted extra marks for taking the examination through Irish would discourage its take-up then that simply re-enforces the arguments made by the complainants. It would also undermine the position taken by the Expert Advisory Group's suggestion that annotation would promote the use of accommodations. (This group is described below.) In any event a situation exists where some marks adjustments are annotated and some are not, reflecting an inconsistency in the respondent's approach.
I find that the complainants have established that they were less favourably treated than others without a disability and others with a different disability when their Leaving Certificates were annotated with regard to the aspects of the courses not assessed in terms of Section 3 and Section 5 of the Equal Status Act, 2000. (See Summary below.)
Section 4
Section 4 states:
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.
(6) In this section --
''provider of a service'' means --
(a) the person disposing of goods in respect of which section
5(1) applies,
(b) the person responsible for providing a service in respect of
which section 5(1) applies,
(c) the person disposing of any estate or interest in premises in
respect of which section 6(1)(a) applies,
(d) the person responsible for the provision of accommodation
or any related services or amenities in respect of which
section 6(1)(c) applies,
(e) an educational establishment within the meaning of subsection
(1) of section 7 in relation to any of the matters
referred to in subsection (2) of that section, or
(f) a club within the meaning of section 8(1) in respect of admission
to membership or a service offered to its members,
as the case may be, and ''service'' shall be construed accordingly;
''providing'', in relation to the special treatment or facilities to which
subsection (1) refers, includes making provision for or allowing such
treatment or facilities, and cognate words shall be construed
accordingly.
Section 4(5)
The respondent argued that Section 4(1) of the Equal Status Act 2000 falls to be construed in conjunction with Section 4(5). Section 4(5) is quoted above but essentially it states that Section 4 is without prejudice to Section 7(2)(a) (among others) of the Education Act 1998, which states:
(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;
This suggests that the requirement to provide accommodation in accordance with Section 4 of the Equal Status Act 2000 is without prejudice to Section 7(2)(a) which indicates (taking only the immediately relevant parts) that it shall be a function of the Minister to provide support services to students with disabilities as the Minister considers appropriate. Support services are defined in Section 2 of the Education Act 1998. However, Section 7(2) (a) is itself without prejudice to Section 7(1) which states:
7. -- (1) Each of the following shall be a function of the Minister under this Act:
(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,
(b) to determine national education policy, and
(c) to plan and co-ordinate --
(i) the provision of education in recognised schools and centres for education, and
(ii) support services.
This indicates (again taking only the immediately relevant parts) that it shall be a function of the Minister to ensure that support services are available, to each person resident in the State, which are appropriate to meeting the needs and abilities of that person.
The respondent referred me to Mr. Justice John McMenamin's judgement delivered on 15th June 2005 in respect of O'Carolan v Minister for Education and Science and others. The applicant had alleged that the Minister had breached a duty under Section 7(1)(a) of the Education Act 1998. The Judge stated: "It will be seen that Section 7(1)(a) provides for a function of the Minister. It does not impose a duty." The Judge goes on to find that even if it was a duty the proposals before him would have complied with any statutory duty imposed on the Minister under that Section. In that case however, what was in dispute was the selection of a service provider to respond to the specific needs of the appellant. In the cases before me no such customised accommodations or services relevant to the assessed needs of the complainants in particular are at issue.
In response the complainants argue that "In the judgement Mr. Justice McMenamin does not decide the question of whether the section imposes a duty on the Respondent to provide the level of services and the particularity of services being sought in that case as it was not necessary for him to do so in the particular constitutional framework. .... Furthermore, although it was not necessary for Mr. Justice McMenamin to decide the question in O'Carolan it is in fact quite clearly established that where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function."
I am satisfied that Section 7(2)(a) taken as required with Section 7(1) is not in conflict with Section 4 of the Equal Status Act, 2000. While the flow of the legislation is convoluted my interpretation is that the Equal Status Act, 2000 requires the provision of reasonable accommodation for students with disabilities, without prejudice to the function of the Minister to achieve this in a manner he considers appropriate, without prejudice to the function of the Minister to ensure that each person has available to them the support services appropriate to meeting the needs and abilities of that person.
While the respondent argued that the purpose of Section 4(5) is to preclude consideration of reasonable accommodation in respect of support services in education in any investigation under the Act, the complainants argued that the effect of the subsection is to remove the nominal cost provision in subsection 4(2) from such considerations. Wherever exemptions are included in the Act, these are generally specific for example those included in Section 6 and Section 14 (a). Had an exemption been intended, the section could simply have said that and I intend to take a purposive approach to this matter. I find that consideration of reasonable accommodation with respect to support services in education is not precluded by Section 4(5).
Section 4, General
While the term reasonable accommodation is not mentioned in the Act it is commonly used to refer to the requirements of Section 4. Considerable confusion has been created by the adoption of the term by the respondent to describe the accommodations they provide. It is a strongly held belief by those in the Department who attended the hearing that what they provide is reasonable accommodation in terms of the Act. This is contested by the complainants who argue that if the accommodations were in fact in line with what is required by the Equal Status Act, 2000 notation of certificates would not be required. (In addition they argue that a proper reasonable accommodation under the Act would require a different form of assessment of those with disabilities.) The difference of opinion arises from the belief in the Department that any reasonable accommodation given in fact confers an unfair advantage on the recipient. This, in my view, is to fundamentally misunderstand the purpose of Section 4. The purpose of reasonable accommodation is to provide for a situation where people with disabilities can avail of the service on an equal footing with those who have no disabilities. It is to remove a disadvantage rather than confer an advantage. It is to allow them to take part on a level playing field while allowing for their disability.
The Department has decided to offer certain fixed, that is inflexible, categories of accommodations and they require all students with disabilities to fit into one of these. Wherever an accommodation exempts the assessment of a core element of the course, they insist that these accommodations confer an unfair advantage on the students with disabilities over their counterparts without disabilities. The annotation of the certificates is said to balance this unfair advantage.
The respondent in this case has argued that the complainants have always had the option not to use the reasonable accommodation but that they elected to do so. However, just as a person in a wheelchair cannot reasonably be expected to elect to use 30 steps as a means of access, neither can a person with dyslexia be expected to elect to be assessed on the one aspect of their ability affected by the dyslexia when an alternative exists.
Does Section 4 stand alone?
It was argued that Section 4 cannot stand alone without Section 3 of the Equal Status Act 2000. I am satisfied that Section 4 provides for another quite different type of discrimination than that covered by Section 3. Section 3 provides for all situations where less favourable treatment arises. Section 4 provides for situations where treating a person with a disability the same way as you treat people without disabilities creates an inherent unfairness. These provisions are quite different and nowhere in Section 4 is there a requirement that Section 3 must first apply or vice versa. Neither is there provision for compliance with Section 4 providing a get-out-of-jail-free card with regard to any less favourable treatments arising under Section 3. Therefore, with regard to the five key issues I have adopted to identify whether or not a prima facie case has been established in the section called Prima Facie Case above, I am satisfied that the correct approach is that either numbers (i) along with (ii) and (iii) or numbers (i) and (iv) along with (v) would, in general, be sufficient to establish a prima facie case of discrimination. In this case, however, I find that it is necessary to look at both.
Impossible or Unduly difficult?
The respondent asks what was it about the service provided that made it impossible or unduly difficult for the complainants to avail of it. The complainants argue that because of their disability sitting the examinations without any accommodation would have been unduly difficult for them. I am satisfied, based on the evidence presented, that the complainants would have found the relevant examinations unduly difficult without accommodation. However, having availed of the reasonable accommodation in question the complainants were able to sit the examinations. So an accommodation was provided by the respondent which facilitated the sitting of the examinations by the complainants and their certificates were annotated. The latter arrangement has been dealt with under Section 3 of the Equal Status Act 2000. The former still begs the question does the accommodation provided amount to reasonable accommodation under the Act.
What should have been provided that was not?
The complainants argue that if reasonable accommodation was applied properly to people with disabilities the Department would be required to provide different methods of assessment to take account of the various disabilities. With regard to what nominal cost might be the Tribunal has always looked at the capacity of a respondent to meet such costs and has decided such issues on a pro rata basis with large organizations being expected to carry a larger nominal cost. No evidence of such costs was presented to me and in any event I have only the complaints relating to two complainants before me. I cannot go further to consider a type of class action on behalf of any person with a disability.
In their treatment of the O'Carolan case the complainants argued that :
"where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function."
They go on:
"This has been construed by the Courts in other contexts as requiring that all reasonable steps to give effect to the function are taken. The Tribunal is specifically referred to the decision of Mr. Justice Flood in the case County Meath VEC v. Joyce [1997] 3 IR 402 in this regard in which he found in relation to the Housing Acts that although no express statutory duty was created there was "an implied statutory function" which function was implied by reference to the purpose of the legislation and was required to be exercised in a reasonable manner to achieve the purpose of the legislation."
As I have found that Section 4 without prejudice to S7(2)(a) which is without prejudice to Section 7(1) is applicable, what remains to be addressed is whether or not the Minister provided reasonable accommodation or whether he has taken all reasonable steps to give effect to the relevant functions.
Although the complainants were able to sit their examinations once the accommodation was granted I am not satisfied that the accommodations available were in all respects appropriate. Given that the students applying for special accommodations are each individually assessed at present by the National Educational Psychological Service, (NEPS), to ensure they are eligible for the accommodation applied for, given also the respondent's fears of providing an accommodation which is greater than what is actually required by a student to avail of the service and given that the accommodations are not specifically meeting the needs of the individuals using the service, I am not satisfied that the respondent has done all that is reasonable to accommodate the needs of the complainants. However, the complainants were able to sit their examinations and provision was made to take account of their disability. Therefore it was neither impossible nor unduly difficult for them to take the examination.
I find that the complainants have failed to establish a prima facie case of discrimination in terms of Section 4 of the Equal Status Act, 2000.
Prima Facie Case - Summary
The annotation of the complainants' certificates indicates that their score was not achieved in standard conditions and implies that their score does not reflect the same achievement as it would for a student without the note. The annotation of the certificates is directly relevant to the complainants' disability in that it was applied because they had attempted to sit the examinations in a manner that took account of their disability. I am satisfied that the certificates, as issued, constitute less favourable treatment of the complainants when compared to others issued with certificates without annotation satisfying (iii) above. I find that the complainants have established facts from which it can be presumed that prohibited conduct has occurred and therefore they have established a prima facie case of discrimination on the disability ground in terms of Sections 3 and 5 of the Equal Status Act, 2000.
Respondent's rebuttal
The respondent has argued that the annotation is required to present a student's results accurately and to avoid misleading the end-user. It is a necessary balance to protect the integrity of the examination certification system. The Central Applications Office is possibly the largest single end-user of leaving certificates and that Office is provided with the Leaving Certificate results including the annotations when the information is transferred to them electronically by the respondent. However, it appears they ignore this information as an indicator of disability and collect that information from applicants directly. They do, however, accept the grade presented on the certificate without taking account of the mark adjustment indicated by the note. Therefore the CAO apparently does not require this information to be provided by the respondent. The respondent indicated during the hearing that no research has been done to assess whether or not the annotation is of use to other end-users or whether it achieves their goals of maintaining the credibility of the exam system. In the Expert Advisory Group's (see below) discussion document and report in relation to the assessment of candidates with special needs this annotation is posited. There is no supporting research or justification for it in either document. The Group's report was adopted by the Minister and has remained in practice since. When asked how many appeals against this annotation have been successful the respondent replied none. Therefore it appears that annotation has been adopted by the Department as best practice and although they advise that all aspects of the process can be appealed, the practice of annotating certificates is absolute and has never successfully been appealed. This position appears to be without foundation or supporting research other than the assertion that it maintains the integrity of the system.
The respondent has failed to present any evidence in support of their assertion that the annotation is necessary to maintain the integrity of the certification process. They have failed to present any evidence that the annotation actually achieves this goal.
Annotations arose as a result of the adoption of the Report of the Expert Advisory Group on Certificate Examinations by the Minister for Education as policy. This Group had originally been established in 1997 and it was asked by the Minister in 1998 to prepare a discussion paper on special arrangements for students with special needs. A Discussion paper was prepared which originally mentioned the annotation and in January 2000 a report was submitted to the Minister. The Report stated that "Most, but not all, submissions were opposed to indicating on certificates that candidates had taken an examination under special circumstances." No mention is made as to whether the remainder who did not express opposition were in favour of annotation or whether they simply did not reference it. It is not clear why a group of individuals making up the expert group who were initially considered expert in relation to the certificate examination in standard circumstances were also considered expert in respect of examinations taken in special circumstances. Nor is it clear why that group did not need to include new members with expertise in dealing with the assessment of students with special needs to take account of any inherent biases in relation to standards of assessments normally applied and when, or indeed whether, these can be waived.
In their report the Group laid down inter alia the following principles:
"3. Special arrangements should not put the integrity, status or reputation of the examination at risk.
5. Special arrangements are designed to assist a candidate in demonstrating his or her achievements in an examination setting. They are not designed to compensate for a possible lack of achievement arising from a disability.
6. Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
10. A candidate's disability may be such that it is not possible for him or her to participate in a particular mode of assessment (an aural examination for a candidate with severe hearing impairment), in which case it should be open to a candidate to apply for an exemption from part of the assessment procedure.
11. An alternative procedure is not acceptable where the purpose of an examination would be compromised by its use (e.g. reading a test of reading comprehension to a candidate with a specific reading difficulty).
12. When an element or elements of an examination have been waived, so that the purpose of the examination regarding that element or elements has not been met, or the method of examining has been significantly altered, this should be indicated by the presence of an explanatory note on the candidate's certificate of results."
The Respondent's submission in referring to this report states:
"Under the heading "Treatment and Reporting of Candidate Performance" the Expert Advisory Group stated that those submissions that expressed the view that certificates should not carry an annotation concerning special arrangements seemed to be based on the view that annotation on a certificate always works to the disadvantage of a candidate. The Report went on:
"This, however, is not the case. A scheme in which annotation is applied to certificates can serve to expand the capacity for special arrangements. Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required."
The Report concluded in relevant part: "It should be noted on certificates of results if an element or elements of an examination have been omitted or the method of examining has been altered in a substantial way." While this conclusion, and the reasoning underpinning it, is disparaged on Complainant B's behalf in the Complainant's submissions, no countervailing expert opinion is relied upon in doing so."
While it is correct to say that the complainants did not present countervailing expert opinion, it is also true to say that the respondent has not presented any expert evidence to show how annotation is intended to achieve the goals set it such as maintaining integrity if the examination system and maintaining equality of treatment among students. As previously mentioned, neither has there been any surveys or research into how end users view these goals. It appears that the assertion was made by the Expert Group, without reasoning, after their research into the processes in place in other jurisdictions that certificates should annotated where considered appropriate. No explanation is available as to how annotation could serve to expand the capacity for special arrangements. I have mentioned above that the CAO does not appear to use the footnotes to the certificates as an indication that the holder requires special provision and collects this information from the applicants directly for passing on to the relevant university or college. Indeed the statement "Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required" appears to suggest that the Expert Group were under the impression that the footnotes were to be used as an indicator that the certificate holder was a person with special needs. This in turn suggests that even though they felt the footnote could indicate a disability they still felt that it should be highlighted. (It should be noted that the Expert Group Report was submitted to the Minister in January 2000 while the Equal Status Act was enacted in October 2000.)
Principle 6 above states :
Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
This is a central theme throughout the respondent's documents wherever this matter is dealt with. My own reading of these references were such that it was intended that no accommodation should provide the recipient with an unfair advantage but that where their disability was such that an accommodation would allow them to start on an equal footing then no unfairness would arise. In other words the removal of a disadvantage would be acceptable. However, it was clear at the hearing that some accommodations given are considered to confer an unfair advantage to the recipient. This principle as is worded, combined with the respondent's position about unfair advantage, seems to leave no room for the offering of accommodations in situations where equal treatment would produce an inherent unfairness. I find that this is in direct contradiction with Section 4 of the Act.
In July 2001 the Task Force on Dyslexia, appointed by the Minister for Education and Science to consider the issue of dyslexia, delivered its report. It included the following two recommendations:
Establishment of an Appeals Procedure
In the short term
17) The Department of Education and Science should establish an independent procedure to deal with appeals instigated by parents of children with learning difficulties arising from dyslexia who are dissatisfied with the response of the system to their children's needs.
Provision of Reasonable Accommodations in State Certificate
Examinations
In the short term
18) In light of recent equality legislation, the Department of Education and Science should refer to the Director of Equality and the National Disability Authority the practice of appending explanatory notes to the certificates of candidates with specific learning difficulties, including those arising from dyslexia, who are granted certain accommodations in state examinations.
In respect of recommendation 17, the following is what was included in the respondent's Circular S11/2000 introducing the new exemptions in paragraph 5 headed "Changes to the Appeal procedures":
...The Minister has decided that in future the entire [appeal] group should be drawn from outside the Department. The remit of the appeal group will cover appeals against all elements of a decision regarding special arrangements including any proposed inclusion of an explanatory note on an examination certificate. The appeal group will be required to consider all cases in light of principles set out by the Expert Advisory Group."
Also in respect of recommendation 17, the following is what is currently available on the respondent's website in respect of all appeals relating to accommodations:
In cases where a school/parent or candidate is dissatisfied with any aspect of the Commission's decision in relation to an application for reasonable accommodations, they have access to an independent appeals forum. All members of the appeals group are drawn from outside the Commission. The remit of the appeals group covers appeals against all elements of a decision taken by the Commission, including any proposed inclusion of an explanatory note. All appeals are considered in light of the principles set out by the Expert Advisory Group.
The 'Commission' refers to the State Examinations Commission which is the non-departmental public body under the aegis of the Department of Education and Science that has taken over responsibility for examination arrangements which were formally handled by the Department. Both statements above indicate that the appeal process is independent with regard to its personnel. However, since all appeals are considered in the light of the principles of the Expert Advisory Group, and since no appeals relating to annotation have been successful when considered in this light, it would appear that the group is not independent in relation to its operation since it appears to abide by what I believe is simply an unreasoned assertion in the Report that any exemption should be indicated by the inclusion of an explanatory note. This suggests a failure to observe the rules of natural justice and audi alteram partem in particular. I note that this process relates only to applicants who are disabled.
Recommendation 18 suggested revisiting the annotation issue given the Equal Status Act, 2000. The Department stated that they were at all times content that the issue was in accordance with the Act and no reconsideration of the matter took place.
Section 5 (2) (h)
The subsection states:
"5. -- (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
(2) Subsection (1) does not apply in respect of --
................
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,"
A reading of Section 5 leads to the understanding that it provides for the more favourable treatment of persons belonging to a category of persons in order to promote the interests of that category of persons in a bona fide manner so long as the differences in treatment are necessary to promote their special interests. One would expect complaints in respect of such treatment to originate from persons not in the category since they would by definition be treated less favourably. Could differences in treatment as mentioned in the
Section be intended to include less favourable treatment? While a literal interpretation would suggest that it could, it would be nonsensical since the less favourable treatment would have to be provided for the principal purpose of promoting the special interests of persons in the category.
However, the respondent has presented this as a defence in respect of the claims from the complainants and the category of persons to which they belong.
Throughout this decision I have not accepted that the bundling of what is allegedly more favourable treatment with other treatment can provide cover for less favourable treatment. However, it is my view that it is irrelevant whether the annotation and accommodation be looked at separately or bundled together for the purposes of this Section since neither can be said to have promoted the interests of students with dyslexia or disabilities. The accommodation could arguably be seen as a facility which allowed the complainants sit their examinations without undue difficulty. The complainants did not request that their special interests be promoted. They simply requested access to a service available to others in such a way as would remove any undue difficulty for them arising from their disability. It is difficult to see how the ordinary meaning of the words could be stretched to perceive that facility as a promotion of their interests. In addition, no evidence was presented to show that it is reasonably necessary to annotate certificates in order to promote their special interests were these seen to apply. I am satisfied that Section 5 (h) does not provide a defence for the respondent in this case.
Section 14
14.- Nothing in this Act shall be construed as prohibiting -
(b) preferential treatment or the taking of positive measures
which are bona fide intended to --
(i) promote equality of opportunity for persons who are,
in relation to other persons, disadvantaged or who
have been or are likely to be unable to avail themselves
of the same opportunities as those other persons, or
(ii) cater for the special needs of persons, or a category
of persons, who, because of their circumstances, may
require facilities, arrangements, services or assistance
not required by persons who do not have those
special needs.
This provision is similar in thrust to that of Section 5(2)(h) in so far as it provides for more favourable treatment of certain persons and, again, one would expect complaints to which it relates to originate with persons not receiving the more favourable treatment. As mentioned above I have not accepted that the bundling of what is allegedly more favourable treatment with other treatments can provide cover for less favourable treatment. The wording of the Section is so specific as to leave little room for misinterpretation. It deals with preferential treatment or the taking of positive measures for the promotion of equality of opportunity of disadvantaged persons or the catering for special needs of persons. The relevant persons in this regard are the complainants. The issue of annotated certificates cannot be seen as a positive measure and does not promote equality of opportunity for them nor does it cater for their special needs. I do not accept that this Section provides a defence for the less favourable treatment of those whose interests it aspires to protect. I find that Section 14 does not provide a defence for the respondent in this case.
I am satisfied that the respondent has failed to rebut the prima facie case of discrimination on the disability ground which the complainant's have established.
Decision DEC-S2006-077
The schemes and processes introduced by the Department over the past number of years to take account of the many disabilities which may present in students taking the certificate examinations should be recognised. These indicate a recognition by the Department of the difficulties faced by these students and a willingness to address them. Indeed their efforts were explicitly recognised by the complainants' representatives. However, the case was presented in accordance with statute and I am required to issue a decision.
I find that the respondent has discriminated against the complainants in terms of Sections 3 (1), 3(2)(g) in relation to the provision of services in terms of Section 5(1) by annotating their Leaving Certificates with a reference to the aspects of the courses not assessed.
I hereby make the following order in accordance with Section 27 of the Equal Status Act, 2000:
- The respondent is hereby directed to pay each of the complainants €6000 as compensation for the discrimination.
- The respondent is hereby directed to issue new Leaving Certificates to the complainants without the relevant notations.
- The respondent is hereby directed to ensure that all aspects of its appeal process conform with the rules of natural justice, in particular audi alteram partem, instead of adhering rigidly to the principles set out by the Expert Advisory Group regardless of the appellant's case.
- The respondent is hereby directed to formally investigate the feasability, with a view to its implementation, of creating and implementing a system which can create an individually suited accommodation or group of accommodations which meet the needs of each particular student applying for accommodation, based on their individual assessment, rather than the current practice of assessing each applicant student to grant access to a pre-existing accommodation.
- The respondent is hereby directed to ensure that the range of accommodations which is available at present for students with disabilities continues to be available. This Decision should not serve to justify any regression in relation to the situation which already prevails.
Bernadette Treanor
Equality Officer
3rd November 2006