DEC-S2008-050 - Full Case Report

Equal Status Acts 2000 to 2008 

EQUALITY OFFICER’S DECISIONS NO:  DEC-S2008-050

Surridge

V

ColáisteBhríde School

File No. ES/2004/0174

Date of Issue:  29 August 2008

DEC-S2008-050

Case Summary

Dispute

The dispute concerns a complaint, taken on behalf of the complainant, Mr. David Surridge, by the complainant’s mother, Mrs. Debra James, that he was treated contrary to section 7(2)(a) on the ground of his disability on 5 July 2004 by Coláiste Bhríde School (the respondent). The complainant’s mother alleges that the respondent imposed a condition of enrolment on the complainant.

Conclusion of the Equality Officer

The Equality Officer found that the complainant’s condition is within the meaning of section 2(1) of the act.

Having examined all the facts of the case, the Equality Officer found no evidence to support the complainant’s mother’s claim that an educational assessment was a pre-requisite for the complainant to be enrolled in the school. She found that the respondent had not treated the complainant any less favourably on the ground of his disability and that the complainant’s admission process was in line with the school’s own admission procedures. Further, the Equality Officer found that the respondent’s actions were reasonable within the circumstances of the case and that it had done so in order to comply with its obligations in relation to its equality commitments. 

Decision

The complainant has failed to establish a prima facie of discrimination on the disability ground. Therefore, this decision is in favour of the respondent.

DEC-S2008-050

Full Case Report

Keywords

Equal Status Acts 2000 – Discrimination, section 3(1)(c) – disability ground, section 3(2)(g) – educational establishments, section 7(1) – the admission or the terms or conditions of admission of a person as a student to the establishment, section 7(2)(a)

1. Delegation under the Equal Status Act 2000

1.1. Mr. David Surridge’s mother, Ms. Debra James, referred a claim on 9 August 2004 to the Director of the Equality Tribunal under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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. The investigation under section 25 began on 11 April 2008.  An oral hearing was held in Arklow on 16 June 2008.

2. Dispute

2.1. The dispute concerns a complaint, taken on behalf of the complainant by the complainant’s mother, Mrs. Debra James, that he was treated contrary to section 7(2)(a) on the ground of his disability on 5 July 2004 by Coláiste Bhríde School (the respondent). The complainant’s mother alleges that the respondent imposed a condition of enrolment on the complainant. While the complainant was under 18 at the time of the alleged incident, he – having reached adulthood - represented himself at the oral hearing. The respondent was notified of the complaint on 24 July 2004.

3. Case for the complainant

3.1. The complainant’s mother made contact with the respondent on 18 June 2004 to request an appointment to enrol her son, the complainant. The complainant, who for the previous seven years had been home-schooled, had wanted to participate in mainstream education in preparation for the Leaving Certificate Examination and, subsequently, admission to a third level institution. The complainant’s mother received instructions from the respondent to ring back on 21 June 2004 so that she could talk with the Deputy Principal, Mr. Pat Brennan. During this conversation, the Deputy Principal told the complainant’s mother that there would be a problem in identifying what year the complainant should be enrolled in as he had not completed any state exams. An appointment was arranged between the parties.  

3.2. A meeting between the Principal, Ms. Linda Dunne, the Deputy Principal, Mr. Pat Brennan, the complainant and his mother took place on 25 June 2004. At this meeting, the complainant’s mother was asked to fill in a form for children who had been educated outside the mainstream schools system. One of the questions on this form queried whether the student in question has any learning disabilities. The complainant’s parent replied that her son had been diagnosed with dyslexia. She submitted an educational assessment report, dated 1996, to the Principal. According to the complainant’s mother, the report was rejected by the respondent as being out of date.

3.3. The complainant’s mother also stated that she had requested the Principal to sign a Child Benefit form as the complainant was about to turn 16 and the benefit would cease unless her child was in full time education. She maintains that the Principal’s refusal to sign the form was an indication that the school was not going to enrol the complainant.

3.5. The complainant’s mother further stated that the school refused to give her the required form that would have enabled her to obtain school transport for her son. This refusal, she maintains, meant that her son was not able to avail of this service at the beginning of the school year.

3.6. On 28 June, the complainant’s mother received a phone call from the Principal to say that she had made an appointment for the complainant and his mother to meet with the Manager of another local educational service provider. The complainant’s mother was appalled that such a meeting had been arranged without her consent, especially as she had so emphatically rejected this educational establishment as an option for her son at the meeting on the 25 June 2004. The complainant’s mother indicated that her son had not dropped out of education but had been home-schooled and that she found this suggestion that he enrol with the said educational establishment extremely insulting considering that she thought it would be inappropriate for him. The complainant’s mother stated that the Principal had accused her of only wanting to enrol her son in mainstream education for financial reasons and that she had assured the complainant that an allowance would be payable in relation to his attendance with the said educational establishment. This persistent insistence by the respondent that the complainant enrol with a programme provided by the said educational establishment, the complainant’s mother maintains, further led her to believe that the school had no intention in enrolling the complainant. The complainant’s mother stated that she hung up three times during the conversation with the Principal.

3.7. The complainant’s mother suggests that the school’s offer of placing the complainant in 2^nd year was an attempt to humiliate and to devalue the education that the complainant had received at home. The complainant’s mother further argued that the Principal’s suggestion that the complainant might wish to consider enrolling with another educational service provider - coupled with the Principal’s arrangement of a meeting with the said educational establishment without her permission - was a further obstacle imposed on the complainant’s enrolment and was a source of great stress to them.

3.8. The complainant’s mother further submits that she received a letter from the respondent dated 5 July 2004. The letter stated:

“I have met with the Chairperson and Board of Management and from this meeting it was confirmed that in order for David’s application to proceed the following information will be required:

A current report from an educational psychologist to enable the school to make a decision on David’s educational needs and provision. This may also be needed in the future if additional resources are to be assessed in respect of David. The Department of Education and Science will only accept a current report from a recognised, qualified professional, i.e. a report that has been commissioned within the past three years. Unfortunately the 1996 date would be considered out of date.

… As regards the educational psychological assessment required it would expedite matters considerably if you were in a position to arrange this privately.”

The complainant maintains that the requirement for him to have this educational assessment before he was to be enrolled constitutes indirect discrimination as in his view there was no legitimate reason, other than administrative ones, for this assessment to take place. The complainant’s mother further argues that the reference to have an assessment privately done was a purposeful attempt to obfuscate her son’s enrolment as the Principal was aware of the financial constraints pertaining to the complainant’s mother (because of information given to the Principal at the initial meeting). The complainant’s mother stated at the hearing that she had contacted a number of private educational assessment providers and was told that it would take at least 9 months before she could obtain such a service. This, she maintains, caused both the complainant and her stress as it seemed that her son would not be able to enrol until such a date and, should there be a long delay, the school would not have any obligation to enrol the complainant as he would be over 18. The complainant also stated that an educational assessment could not be used to determine his ability in specific subjects - such as geography and history - and therefore was not a tool for indicating appropriate placement.

3.9. The complainant’s mother further stated that this condition has the potential of creating a dangerous precedent of schools insisting that a psychologist’s report is an enrolment requirement that may hinder other people with disabilities from accessing mainstream education.

4. Case for the respondent

4.1. The respondent maintains that it was made clear to the complainant’s mother that as she and her son lived in the school catchment area, he would be enrolled. The respondent denies that it dismisses home-schooling and stated that it caters for a number of student’s with disabilities. The complication that the complainant’s enrolment presented was that the respondent did not know which year would be appropriate for the complainant’s needs and abilities. This question arises from the fact that the complainant had been outside the formal education sector for 7 years.

4.2. The respondent maintains that as this was the first time that they had dealt with a person who had been home-schooled and had no formal education record, they needed to investigate the appropriate placement of the complainant. Students transferring from primary schools or from other educational establishments always have school reports and these can be used by the respondent to identify the correct placement of a student in the school hierarchy. The absence of such a report meant that the respondent had no way of knowing what the complainant’s educational attainment level was. It was stated at the hearing that a completed Junior Cycle is a standard benchmark for a student enrolling in the Senior Cycle. The respondent stated that in the absence of such a benchmark, it needed time to explore all options before any definite decision concerning the complainant’s placement was made.

4.3. The respondent maintains that at the first meeting of 25 June 2004 it was made clear to the complainant that there is a place for him. The only concern, the respondent stated, it had was in relation to the correct placement of the complainant. The respondent maintains that the reason for educational assessments is to meet the needs of students and such assessments will continue to be carried out for this reason.

4.4. The respondent stated that the suggestion about another educational establishment’s programme was in relation to a summer course. While the respondent categorically denies that she arranged a meeting with the Manager of said educational establishment, she does not dispute the fact that she had mentioned that educational establishment also ran a Leaving Cert programme to the complainant’s mother. The respondent maintains that it was only a suggestion intended to be helpful given that the complainant had been out of the mainstream education system for so long.

4.5. The respondent submitted its Admission Policy to the investigation. It referred to section 6 Procedures for Admission which clearly indicates that enrolment involves a ‘process’, that is, it involves more than just one meeting.

4.6. An independent witness, invited by the respondent, also gave direct evidence at the hearing. Mr. O’Carroll, Psychologist, National Educational Psychologist Service (NEPS), stated in direct evidence that he had been asked by the Principal to carry out an assessment on the complainant and a number of other students attending Coláiste Bhríde School. He categorically stated that the school had not in any way indicated that there was any condition associated with such an assessment and that he carried out the assessment purely to determine what supports, if any, should be made available to the complainant. He explained at the hearing that an educational assessment is required for the school to apply for additional resources from the Department of Education and Science. The witness stated in direct evidence that he carried out the assessment as he would on any other student and subsequently made the appropriate recommendations based on his findings. The witness stated that he would not carry out such an assessment if he thought that it was to be used for any other reason such as, for example, to exclude a person.

4.7. The respondent refutes any claims that it discriminated against the complainant on the grounds of his disability. The respondent also stated that it is important to note that this incident took place during the summer holidays and that many schools would not have afforded as much attention to the matter in similar circumstances. The assessment, for example, was organised within a period of a couple of weeks.

4.8. The respondent also states that the pertinent issue in relation to this complaint is the fact that the complainant was assessed within weeks of his application for enrolment being received by the school. This assessment was carried out by the school and there were no costs to the complainant. This, the respondent submits, renders the debate of how long it would have taken for the complainant to obtain such an assessment irrelevant. The respondent maintains that the educational assessment was carried out purely in the interest of the complainant and that should the respondent have failed to do so, the school may have been in breach of its commitments to equality and the equality legislation. 

5. Conclusion of the Equality Officer

5.1. In complaints of discrimination the onus rests with the complainant to establish the facts from which it may be presumed that prohibited conduct has occurred in relation to him. Should such facts be established it is then for the respondent to prove the contrary.

5.2. In making my decision I have taken cognisance of both written and oral submissions. The final submission was received on 28 June 2008.

5.3. Disability in the Act is defined in section 2(1) as:

a)      the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

b)      the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

c)      the malfunction, malformation or disfigurement of a part of a person’s body,

d)      a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e)      a condition, disease, or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbedbehaviour.

I accept that the complainant’s condition constitutes a disability within the meaning of section 2(1)(e).

5.4. The question that this decision must address is whether an educational assessment was a condition of the complainant’s admission and if so, whether such a condition is legitimate within the meaning of the Equal Status Act 2000. Indirect discrimination is defined in section 3(2)(c) the 2000 act as:

(i)                 a person is in a category of persons, who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii)               the person is obliged by the provider of a service (within the meaning of section 4(6) to comply with a condition (whether in the nature of a requirement, practise or otherwise) but is unable to do so,

(iii)              substantially more people outside the category than within it are able to comply with the condition, and

(iv)             the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

5.5. It became apparent during the hearing that there exists a large degree of different interpretations of the dialogue that took place between the parties. For example, the complainant’s mother maintains that the respondent had stated at the meeting of 25 June

2004 that the complainant could apply for a place in the school while the respondent stated that they had said that the complaint has a place in the school, the question that remained was in relation to his placement, that is, what year the complainants should enrol in. The complainant’s mother maintains that a letter she received from the Principal dated 5 July 2004 clearly indicates that there was a condition on his enrolment (the educational assessment) while the respondent interprets the same statement as referring to a process of admission rather than a condition of enrolment.

5.6. Section 4 the Equal Status Act, discrimination on the ground of disability, 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 the person avail himself or herself of the service.” 

The above imposes an obligation on any provider of goods and services, accommodation and education to provide such reasonable accommodation to a person with a disability subject to certain exemptions. As such, the school’s speedy actions in obtaining an assessment from the NEPS before the academic year would appear to be in line with the respondent’s obligation to comply with the above requirement. While the complainant’s mother submitted a letter from the Department of Education and Science indicating that no additional resources would be available for her son, I find that such a report is required for any consideration for extra resources to be allocated by the Department. Therefore I find that it is legitimate for a school wanting to provide the best possible service for its students to obtain such an assessment for the purposes of receiving special treatment or facilities. I also note that the respondent organised such an assessment for the complainant within a couple of weeks of their initial meeting. I find that such an assessment was organised by the respondent, had no cost implications for the complainant and was carried out by the NEPS purely for the interest of the complainant.  

5.7. In examining the complainant’s mother’s claim that the respondent made her believe that there was a condition on her son’s admission I find that I have not been presented with any evidence to prove the existence of such a condition. The complainant’s mother showed me a form during the hearing that she had been asked to fill in with her son at the meeting on 25 June 2004. This form contained a list of second year subjects and had been filled in by the complainant. I find that the fact that this form was filled in on the day makes it clear that the complainant was to be enrolled in the school, albeit not at the year that the complainant’s parent had requested. I also note that the respondent’s admission policy clearly states that the school reserves a 21 day time period after it has received all the relevant information about a prospective student for it to affirm admission which clearly indicates that such a decision is not made immediately. Having examined the facts before me I am satisfied that the school’s conduct in relation to the enrolment of the complainant was in line with the general admission procedures and that this also explains why the respondent would not immediately sign the complainant’s Child Benefit and school transport forms.

5.8. Further, I am satisfied that the reason why the school made no immediate decision in relation to the complainant’s placement (that is, what year the complainant should enrol in) had nothing to do with his disability. While I appreciate the reasons why the complainant and his mother would have concerns about him being potentially placed with students much younger than himself, I do not accept that this consideration took place because the complainant has dyslexia. The complainant’s mother stated at the hearing that her son should have been able to sit these exams at their initial meeting to prevent any confusion. The respondent replied to this by stating that it was impossible to organise such an exam without any preparation. I accept this as reasonable and note that the complainant was able to sit some state examination papers later in the summer and that the complainant was enrolled in 5^th year that September.

5.9. Having examined all the facts before me I have found no evidence to support the complainant’s mother’s claim that an educational assessment was a pre-requisite for the complainant to be enrolled in the school. I find that the respondent was eager to figure out the best way to incorporate the complainant in the school and to ensure that the complainant’s educational needs would be met.  I also note that it did so during the summer months and that it organised an educational assessment for the complainant is a very short period of time. I do concur with the respondent’s statement that a failure to obtain a current educational needs assessment report might have been in violation with the reasonable accommodation requirement in the equality legislation.  I also note that Dyslexia Association Ireland’s submission to this investigation on behalf of the complainant refers to a recent Department of Education and Science document “Inclusion of Students with Special Education Needs, Post Primary Guidelines”, section 2.4.1.:

“It is good practice for a school to seek all relevant information on a child with special education needs before their enrolment. This may be done as part of the admissions process … This information should not be normally used in any way, explicitly or implicitly, to determine whether the child is to be enrolled in the school. Access to such information can however enable the school to make suitable advance preparations for the admission of the student and, if necessary, to seek additional resources.” I am satisfied that the respondent engaged in good practice as described above and not in an attempt to exclude or obstruct the complainant.

5.10 While it is clear that the Principal had referred to another educational establishment and mentioned that it ran summer and other programmes to the complainant’s mother, I have not been presented with any evidence to suggest that the Principal did so for discriminatory reasons.

Decision

In accordance with section 25(4) I conclude this investigation and issue the following decision:

The complainant has failed to establish a prima facie of discrimination on the disability ground. Therefore I find in favour of the respondent.

______________

Tara Coogan

Equality Officer

29 August 2008