DEC-S2008-031 - Full Case Report

Equal Status Acts, 2000-2004

Equality Officer Decision DEC-S2008-031

Mrs. C (on behalf of her daughter J)

-v-

Mrs. L, The Proprietor of a Montessori School

Keywords

Equal Status Acts 2000-2004 - Section 2(1) - Direct discrimination, Section 3(1)(a) - Disability  Ground, Section 3(2)(g) – reasonable accommodation, Section 4 - discrimination by an educational establishment, Section 7(2)

Delegation under the Equal Status Acts, 2000-2004

This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004.  In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to me, Enda Murphy, 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 Acts, 2000 to 2004.  The hearing of the case took place on 2^nd April, 2008.  The final correspondence between the Equality Officer and the parties concluded on 4^th May, 2008.

1.            Dispute

1.1             This dispute concerns a complaint by Mrs. C that her daughter, J, was discriminated against by Mrs. L, the proprietor of a Montessori School on the disability groundin terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2004 and contrary to Section 7(2) of those Acts.

2.            Summary of the Complainant’s Case

2.1             Mrs. C states that her daughter J, who suffers from a developmental delay and a speech and language disorder, was enrolled in the respondent’s Montessori school in April, 2004 when she was aged three years and five months.  J was due to commence attendance at the school in September, 2004 for fifteen hours per week.  Mrs. C. and the respondent discussed J’s disability at the initial enrolment meeting and during the course of the discussion Mrs. L referred to the difficulties involved in acquiring the services of a Special Needs Assistant/Pre-School Assistant (hereinafter referred to as an SNA) to support a child with a disability in a pre-school.  Following this discussion Mrs. C decided to enquire about the possibility of obtaining an SNA to support her daughter at the respondent’s school.  Mrs. C had absolutely no knowledge regarding the procedures for acquiring an SNA and sought advice in this regard from her General Practitioner who referred J to a clinical psychologist for an assessment which confirmed that she had a developmental delay and a speech and language disorder.  Mrs. C also sought advice from the clinical psychologist about the procedures for acquiring an SNA and the matter was referred to the Mid-Western Health Board for further inquiry. 

2.2             Whilst this process was ongoing, Mrs. C claims that she endeavoured to keep the respondent apprised at all times of the efforts that were being made to acquire an SNA for J and she attempted to contact the respondent on a number of occasions in August, 2004 to keep her informed of her efforts in this regard.  However, Mrs. C had difficulty in making contact with the respondent and on 23^rd August, 2004 she left a message on the respondent’s telephone answering machine informing her that she had spoken to a clinical psychologist and was making enquiries about obtaining an SNA for J.  The respondent subsequently contacted Mrs. C by telephone seeking information about the person that had been appointed.  Mrs. C assured the respondent that an SNA had not been appointed at that stage and informed the respondent of the efforts she had been making in this regard.  Mrs. C submitted that the respondent demonstrated a very negative attitude towards J and showed continuous resistance to the efforts that were being made to acquire an SNA on the basis that she did not want someone she didn’t know coming into her school.  Mrs. C claims that the respondent stated on a number of occasions that J didn’t require the support of an SNA as it was her opinion that J’s difficulties were only related to the verbalising of words.  The respondent also indicated that the issue of an SNA for J would have to be brought to the attention of the parents of the other children that attended the school. 

2.3             Mrs. C’s daughter commenced attendance at the respondent’s Montessori school as originally planned on 1^st September, 2004.  At a pre-arranged meeting between Mrs. C. and the respondent at the school on 8^th September, 2004, the respondent expressed concerns about the prospect of an SNA being appointed without any involvement or consultation on her part.  Mrs. C again informed the respondent about the attempts that she had been making to acquire the assistance of an SNA and gave details of the people with whom she had been in contact regarding this matter.  Mrs. C sought to re-assure the respondent at this meeting that an SNA had not been appointed or sanctioned for the post at that stage. 

2.4             Mrs. C was subsequently referred to the Mid-West Family Support and eventually to Enable Ireland in her efforts to obtain the assistance of an SNA and she claims that she informed the respondent of the details.  On 22^nd September, 2004, Mrs. C was notified by Enable Ireland that J would be assessed at home the following day for the purpose of obtaining an SNA and she immediately contacted the respondent to inform her of this and to confirm that J would not be in attendance at the Montessori school the following day.  During this assessment, Mrs. C informed Ms. R of Enable Ireland about the concerns the respondent had outlined in relation to the appointment of an SNA for J and she requested Ms. R to contact the respondent to clarify matters and to keep her up to date with developments.  Mrs. C’s husband brought J to the Montessori school on 24^th September, 2004 and the respondent had a number of questions for him regarding Enable Ireland.  Mrs. C spoke to the respondent on the telephone later that evening and she requested information about Ms. R of Enable Ireland and the role that she had in the process of appointing an SNA.  The respondent expressed concerns about a stranger coming into her Montessori school and accused Mrs. C of having known about the SNA since April and of deliberately withholding this information from her.  Mrs. C attempted to convince the respondent that she was only doing her best for her daughter and that she had kept the respondent apprised of the situation at all times. 

2.5             On 27^th September, 2004, after much intensive effort, Mrs. C was notified by Enable Ireland that J had been allocated nine hours of pre-school support per week in the respondent’s Montessori school.  Mrs. C was advised to inform Enable Ireland if she had already identified an appropriately skilled person for this position or alternatively that Enable Ireland would be in a position to source the SNA.  Mrs. C was delighted with the news and informed the respondent of this development when she brought J to the Montessori school on 28^th September, 2004 and she also brought all of the relevant documentation, including the psychologist’s report and other correspondence which she had been requested to provide by the respondent.  The respondent reacted angrily to this news and accused Mrs. C of deceiving her and having known all along about the appointment of an SNA.  Mrs. C claims that the respondent became very upset and agitated and stated that she had failed to follow proper procedures during the course of her attempts to obtain the services of an SNA.  The respondent told Mrs. C that she didn’t want a stranger in her school and instructed the complainant to get off her property immediately.  Mrs. C, who was very upset by the incident, left the premises with her daughter and she informed her husband about what had happened when she got home.  Mrs. C’s husband went to the respondent’s Montessori school at approx. 12:30 p.m. that afternoon and spoke to the respondent in an effort to resolve the situation.  However, the respondent indicated that it was far too late for a resolution and stated that she would call the Gardai in the event that Mrs. C came back onto her property. 

2.6             Mrs. C spoke to the respondent on the telephone on 29^th September, 2004 and the respondent indicated that she would agree to take J back into the school for nine hours a week with someone of her choosing as the Pre-School Assistant.  Mrs. C submitted that she could not allow her daughter back into such a hostile environment given the nature of the incident that had occurred the previous day.  The respondent’s husband subsequently contacted Mrs. C’s husband by telephone and suggested that both parties should meet as he wished to resolve the matter before it went too far, however the complainant’s husband failed to make further contact.  The complainant claims that the actions of the respondent amounted to discrimination against her daughter on the ground of her disability.

3.            Summary of the Respondent’s Case

3.1             The respondent, Mrs. L, is the proprietor of a Montessori School which has been in existence since 1999.  Mrs. C’s daughter, J, was enrolled in the respondent’s Montessori school in April, 2004 and on enrolment Mrs. C confirmed to her that J had a speech and language delay.  The respondent informed Mrs. C at this stage, that although she was not qualified in this particular area, she had previously worked with children who had speech and language delays and would therefore do her best for J also.  The respondent was not notified at this stage that J had a disability nor did Mrs. C mention the prospect or possibility of acquiring the services of an SNA to assist J in the Montessori school.  The first occasion that the respondent received any indication about the possibility of an SNA being appointed to assist J in the Montessori school was when Mrs. C contacted her by telephone on 23^rd August, 2004.  The respondent felt that this was very short notice given the close proximity to the start of the new school year and she was also dissatisfied that she had not been consulted or included in the process up to that point in time.  The respondent was not opposed to the appointment of an SNA for J, however she was frustrated by the late notice, lack of awareness around the entire situation and not being informed of decisions that would affect the running of the school.  The respondent also had a duty of care to the other children that attended the school and to their parents and she informed Mrs. C that, although she would not be divulging the specifics of the situation, that it would be necessary to inform other parents why there was a second adult on the premises.  The respondent requested Mrs. C to provide her with all relevant information, documentation and records relating to J as she had not been made fully aware up to that point about the child’s history or of the specific nature of her disability.  The respondent required this information so that she could provide the best possible care for J and also in order to comply with HSE regulations and obligations.  The respondent also requested Mrs. C to keep her informed of any further developments in relation to the appointment of an SNA and she assured Mrs. C that she had J’s best interests at heart and that she would do her best for J in every possible way.           

3.2             J commenced attendance at the respondent’s Montessori school on 1^st September, 2004 and during the period in which she attended was afforded full access without reservation to all of the school’s facilities.  Mrs. C and her husband acknowledged on a number of occasions the progress that J had made since she first commenced attendance at the school.  The respondent claims that despite a number of requests, Mrs. C failed to provide the information about J or the SNA which had been sought.  As a result the respondent arranged a meeting with Mrs. C on 8^th September, 2004 in order to discuss this issue and Mrs. C was requested to bring along all relevant documentation and information about J and the attempts that were being made to acquire an SNA.  Mrs. C failed to bring this documentation to the meeting and indicated that she was not very adept at keeping documentation although she did mention the names of a few organisations and individuals with whom she had been in contact about the SNA but was unable to provide specific contact details.  Mrs. C gave an undertaking to provide the respondent with all relevant documentation and details in this regard and she agreed to write the contact details of the relevant people into a notebook that was to be used by both parties for the purpose of recording information about J.  The respondent claims that she empathised with Mrs. C and fully understood that it was a difficult time for both her and her husband but she still required all relevant information about J.  It was imperative that the respondent be included in the process of appointing an SNA, as she too was to play a significant role in J’s development, education and integration for the duration of her attendance at the Montessori school.   

3.3             During the weeks that followed the respondent repeatedly sought this information from Mrs. C, however it was not forthcoming. The respondent denies that she received prior notification from Mrs. C that J would be absent from school on 23^rd September, 2004 because an assessment was being carried out by Enable Ireland as part of the process to appoint an SNA.  The respondent claims that Mrs. C’s husband dropped J to school the following day and informed her that J was absent from school on this date because of a tummy bug.  The respondent only became aware of this assessment and its relevance upon discovering a note, in the notebook that both parties shared, which averred to this assessment being carried out.   The respondent contacted Mrs. C by telephone on 24^th September, 2004 and sought information about the assessment and details of the person who had carried it out.  The respondent also sought the permission of Mrs. C to contact those involved in the decision making process about the appointment of an SNA as she had been totally excluded and isolated from the process up to that stage and felt that others were controlling what was to happen in her Montessori school.  Mrs. C was unable to provide any specific details about the person who had carried out the assessment, however she agreed to provide this information the next day that J attended school. 

3.4             When Mrs. C brought J to school on 28^th September, 2004 she informed the respondent that a Pre-School Assistant (SNA) had been sanctioned for J for nine hours per week.  The complainant had a folder in her possession on this occasion which she claimed contained documentation relating to J and the appointment of an SNA.  Despite repeated requests this was the first occasion that Mrs. C had produced any documentation in relation to J or the SNA, however the respondent was not afforded sight of the documentation at this meeting.  The respondent informed Mrs. C that she was not opposed to the appointment of an SNA for J but indicated that she should have been included in the process from the outset.  Mrs. C accused the respondent of having a negative attitude towards J and of discriminating against her daughter.  As both parties were becoming upset at this stage and in light of the fact that the conversation was being conducted in the presence of the school children, the respondent suggested to Mrs. C that she return after school to discuss the matter further.  Mrs. C indicated that she would not be returning later and after threatening to report the respondent to the appropriate authorities, she then took her daughter and left the premises.  The respondent emphatically denies that she ordered Mrs. C to leave the premises or that she indicated she would call the Gardai.  Mrs. C’s husband returned to the school at 12:30 p.m. that day and had a discussion with the respondent regarding the incident that morning. The respondent informed Mrs. C’s husband during this discussion that she wasn’t opposed to the appointment of an SNA for J and assured him that she still had a place in the Montessori school. 

3.5             The respondent subsequently spoke to Ms. R in Enable Ireland and outlined what had happened with the complainant on 28^th September, 2004.  The respondent informed Ms. R that she was agreeable to the appointment of an SNA to assist J for nine hours per week in the school and requested her assistance to contact Mrs. C in order to resolve the matter and to put measures in place for the appointment of the SNA.  Mrs. C contacted the respondent by telephone on 29^th September, 2004 and informed her that she would be having nothing more to do with J and would be reporting her to the appropriate authorities for discriminating against her daughter.  The respondent’s husband subsequently contacted Mrs. C’s husband and suggested that the parties arrange a meeting with a view to resolving the matter, however, the Mrs. C’s husband failed to accept the offer of a meeting.                           

 4.            Conclusions of the Equality Officer

4.1             At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination.  In order to do so the complainant must satisfy three criteria.  (1) It must be established that she is covered by the relevant discriminatory ground i.e. in this case that she has a disability. (2) It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled or who had a different disability.  If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if its defence is to succeed. 

Discriminatory Treatment

4.2             The first test set out above is whether the complainant, J is covered by the disability ground, i.e. is she considered disabled according to the definition of disability set down by the Equal Status Acts, 2000-2004.  In the Act

“disability” means—

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

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

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

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

(e)   a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;[1]

In considering this issue, I note that the complainant was assessed by a senior clinical psychologist and it was concluded in the report submitted in evidence that she had a “general developmental delay and a specific speech and language disorder”.  Accordingly, I am satisfied that this condition constitutes a disability within the meaning set out above and therefore that the complainant has a disability within the definition of the Act.  This fact satisfies the first of the three criteria set out above.

4.3             The second test that of whether the incident complained of actually occurred is my next consideration.  It is not disputed by either party that J had been in attendance at the respondent’s Montessori school for approx. four weeks during September, 2004 and that her attendance was terminated following an incident between the complainant and the respondent on the school premises on 28^th September, 2004.  There is a clear conflict in the evidence between both parties regarding the precise nature of the events that occurred during this incident.  However, for the purposes of satisfying the second test, I am satisfied that an incident did in fact occur on this date which resulted in the termination of J’s attendance at the school. 

4.4             I will now examine whether J was subjected to less favourable treatment on the grounds of her disability in the circumstances.  The respondent claims that she was not provided with any specific details regarding J’s disability when she was enrolled in the Montessori school in April, 2004, although she does accept that Mrs. C did in fact inform her at that juncture that J had a speech and language delay.  I am satisfied that the respondent had absolutely no reservations in accepting J into her Montessori school at this time, and furthermore, that there is no evidence to suggest that she was afforded anything other than the same level of professional care and attention by the respondent as the other children that attended the school during this period.  In this regard, I note the undisputed evidence of the respondent that J’s parents commented on a number of occasions that they were very satisfied with the progress their daughter had been making during the course of her attendance at the respondent’s Montessori school.  Mrs. C claims that she discussed the possibility of acquiring the services of an SNA with the respondent at the initial enrolment meeting whereas the respondent claims the first occasion that the complainant mentioned anything about the appointment of an SNA was on 23^rd August, 2004.  The respondent claims that she was not opposed to the appointment of an SNA to assist J in her school and submits that her difficulties and frustration arose at being totally excluded from the process by Mrs. C and not being afforded the opportunity to have any input into matters that would have a direct impact on the operation of her Montessori school. 

 4.5             Having regard to the evidence presented, I accept that there does not appear to have been a clearly defined or documented procedure in place at that time to provide guidance to a person who was seeking to acquire the services of an SNA, and I accept that Mrs. C was referred to a number of different organisations during the course of her attempts to acquire the services of an SNA to assist J at the respondent’s school.  However, notwithstanding the difficulties and the apparent complexities that Mrs. C was confronted with in her efforts to obtain the assistance of an SNA, I am satisfied, that in the circumstances, it was not unreasonable of the respondent, in her position as proprietor of the school and having regard to the professional responsibility that was being entrusted upon her to care for J, to expect that she would be included in the process and kept informed of developments whilst the process was ongoing. 

4.6             Based on the evidence presented, I find that the respondent was not made aware or informed of Mrs. C’s intention to obtain the services of an SNA to assist J at the school until 23^rd August, 2004.  I am satisfied that when the respondent was notified of this by Mrs. C on 23^rd August that she actively sought to be included in the process.  In this regard, I have noted that the respondent requested Mrs. C, on a number of different occasions during the period 23^rd August and 28^th September, 2004, to provide all relevant documentation regarding J’s disability and to keep her appraised of the situation with regard to the appointment of an SNA.  I fully accept that it was a difficult time for Mrs. C and that she was at all times attempting to act in the best interests of her daughter.  However, I am of the opinion, that if the respondent was to be entrusted to play a significant role in the development of J, whilst in her care, it was of paramount importance that she be kept fully appraised of the situation and of the circumstances surrounding J’s needs and requirements.  I note that the respondent attempted to put measures in place to facilitate this exchange of information, such as the keeping of a joint notebook with Mrs. C to record information and messages about J.  Having regard to the evidence adduced, I find that Mrs. C, whether intentionally or not, failed to include the respondent in the process or to keep her fully appraised of the efforts that were being made to acquire the services of an SNA to assist J in the school.  I also find that Mrs. C was less than forthcoming in the provision of essential information about the process, which in my opinion, was not unreasonable for the respondent to seek given the circumstances that pertained. 

 4.7             There is a clear conflict in evidence between the parties regarding the precise nature of the incident that occurred on 28^th September, 2004 when Mrs. C informed the respondent that she had received confirmation that an SNA (Pre-School Assistant) had been sanctioned to assist J for nine hours per week at the school.  Mrs. C, on the one hand, claims that this was a very acrimonious meeting and that the respondent became very irate when informed about the sanction for the SNA and as a result instructed her to remove her daughter from the school.  The respondent, on the other hand, admits that she expressed her dissatisfaction to Mrs. C at being excluded from the process and that both parties became upset during the course of the discussion that ensued on this date.  The respondent claims that she suggested to Mrs. C that she return to the school at 12:30 that day in order to discuss the matter further when both parties were less emotional and she emphatically denies that she instructed Mrs. C to take her daughter off the premises.  The respondent submitted that J still had a place in the school regardless of the incident that occurred on this date. 

4.8             In the circumstances, taking all of the evidence provided into consideration, I find, on the balance of probabilities, the respondent’s evidence to be a more compelling account of this incident and whilst it is clear that both parties became emotional and upset during the course of this incident, I am satisfied that the respondent neither issued an instruction that J be removed from the school or that she gave any indication to the effect that J no longer had a place in the school.  In coming to this conclusion, I note that Mrs. C’s husband visited the respondent’s school at 12:30 that day in order to discuss the matter and this would appear to corroborate the respondent’s account of the circumstances surrounding the incident.  I do not believe that Mrs. C’s husband would have returned to the respondent’s school in order to discuss the matter further, if the circumstances of the incident that had transpired earlier that day were as alleged by Mrs. C. 

4.9             I also note that the respondent contacted Ms. R in Enable Ireland on 29^th September, 2004 to inform her that she was agreeable to the appointment of an SNA (Pre-School Assistant) to assist J in her Montessori school.  The respondent also sought the assistance of Ms. R to arrange a meeting with the complainant in order to discuss the matter and to make the appropriate arrangements for the appointment of the SNA.  However, Mrs. C subsequently contacted the respondent to confirm that J would not be returning to the school.  I also note the undisputed evidence that the respondent’s husband subsequently attempted to contact the complainant’s husband in an effort to arrange a meeting between the parties to discuss the matter (albeit there is a conflict in the evidence as to the date on which this contact was initiated).  I am satisfied that this telephone call was made in good faith by the respondent’s husband and that it amounted to a further attempt to resolve the matter.  Based on the foregoing, I am satisfied that the respondent was not opposed to the appointment of an SNA to assist J at her Montessori school and that she made all reasonable efforts to try and resolve the matter with Mrs. C following the incident that occurred on 28^th September, 2004.  I find, therefore, that the respondent did not treat J less favourably than any other child under her care on the grounds of her disability.  Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.

Reasonable Accommodation

4.10         In the case of disability in considering whether discrimination has occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person.  Section 4 of the Equal Status Act states as follows:

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

4.11         I will now examine the treatment of the complainant in the context of Section 4 of the Act which deals with the provision of special facilities for a person with a disability.  The question to be addressed is whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”.  This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate the needs of a child with a disability, and that it did not provide her with special facilities to meet those needs.  In the present case, I am of the view that the provision of special treatment or facilities in the context of Section 4 of the Act would have placed an obligation on the respondent to provide all reasonable assistance to Mrs. C in her attempts to obtain or source the services of an SNA to assist J in her Montessori school, and in circumstances where sanction was obtained for the appointment of such a person, there would also be an obligation on the respondent to facilitate the appointment and integration of this person into her school so that the appropriate assistance could be provided for J. 

4.12         Based on the evidence presented, I am satisfied that it was not possible for the respondent to provide any assistance to Mrs. C in her attempts to obtain the services of an SNA, purely for the reason that she had not been included in the process from the outset or kept fully informed of the efforts that were being made in this regard.  I am satisfied that the respondent was not opposed to the appointment of an SNA and that she actively sought to be included in the process of acquiring an SNA for J which is evidenced by the numerous attempts she made to obtain information about the process from Mrs. C.  I am further satisfied that the respondent did not receive notification that an SNA (Pre-school Assistant) had been sanctioned until her meeting with Mrs. C on 28th September, 2004 and I am also of the view that the her frustration and annoyance at this juncture in being excluded from the process was understandable given the circumstances that pertained.  However, notwithstanding this frustration and annoyance, I conclude, for the reasons that I have already set out in para. 4.9 above, that the respondent made all reasonable efforts to resolve the situation that had arisen with the complainant following the incident on 28^th September, 2004 and that she was willing to facilitate the appointment of a person once she had been notified that sanction had been received for the position.  I am satisfied that the complainant was made aware of the respondent’s willingness to facilitate the appointment of a person to assist J at the school but that she decided, of her own volition, to withdraw J from the school.  I therefore find, for the aforementioned reasons, that the respondent did not fail in its obligations to do “all that is reasonable to accommodate the needs of a person with a disability” in accordance with the provisions of Section 4 of the Act.

5.            Decision

5.1             On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(g) and 4(1) of the Equal Status Act, 2000 and accordingly, I find in favour of the respondent.

Enda Murphy

Equality Officer

20^th May, 2008