DEC-S2009-050 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC–S2009-050

PARTIES

Mrs. Kn (on behalf of her son Mr. Kn) - Case Ref: ES/2007/0005 and ES/2008/0049,

Mrs. Kh (on behalf of her son Mr. Kh) - Case Ref: ES/2008/0071,

Mr. Kr (on behalf of his son Mr. Kr) - Case Ref: ES/2008/0072

and Mr. & Mrs. Hy (on behalf of their daughter Miss. Hy) - Case Ref: ES/2008/0073

(represented by Ms. Siobhan Phelan B.L. on the instructions

of the Equality Authority)

and

The Minister for Education & Science

(represented by Mr. David Keane B.L. on the instructions

of the Chief State Solicitor)

Date of Issue: 5th August, 2009

Keywords

Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) - Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)

Delegation under the Equal Status Acts, 2000 to 2008

These complaints were referred to the Director of the Equality Tribunal on 8^th January, 2007 and  14^th April, 2008 (in the case of Mr. Kn) and on 30^th June, 2008 (in the cases of Mr. Kr, Mr. Kh and Miss. Hy) under the Equal Status Acts, 2000 to 2004.  On 31^st October, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director 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, 2000-2004 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 31^st March, 2009 and 1^st April, 2009.  Final correspondence with the parties following the hearing took place on 21^st May, 2009.

1.            Dispute

1.1             The complainants claim that they have been discriminated against by the respondent on the grounds of their disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday.

2.            Summary of the Complainants’ Case

Complaint of Mrs. Kn (on behalf of her son Mr. Kn) - Case Ref. Nos. ES/2007/0005 and ES/2008/0049

2.1             The complainant, Mr. Kn, who is aged 16 years, has a learning disability and a language disorder and attends a special needs school.  This school caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Leaving Certificate Applied to its students.  The complainant has a twin sister who attends a mainstream school and both children started primary school on the same day.  However, it became apparent at an early stage that the complainant had special needs and he was transferred to a special school in September, 2003 where he has made significant progress.  In November, 2005 the complainant’s mother became aware that special schools had received a communication from the Department of Education & Science to the effect that children who reach the age of 18 years should be obliged to leave the school at the end of that school year (referred to hereinafter as the “policy”).  The implications of this policy for the complainant were immediately apparent for his mother.  Although it was intended that both her children would follow a secondary school curriculum to Leaving Certificate standard, the complainant was facing the challenge that he would not be permitted to return to his school in the academic year following his eighteenth birthday, notwithstanding that he may have reached the final year of a Leaving Certificate programme.  Whereas his twin sister, attending a mainstream school, would be permitted to complete her Leaving Certificate cycle without restriction. 

2.2             The complainant commenced first year in the senior cycle (i.e. secondary level education) in September, 2007.  However, as a result of the policy, it was decided that he would have to complete his Junior Certificate in a two year period rather than the normal period of three years and consequently, he was due to sit his Junior Certificate examinations in June, 2009.  This course of action was deemed necessary to ensure that the complainant will have completed his Leaving Certificate Applied Programme in the year in which he reaches his eighteenth birthday.   Accordingly, notwithstanding that the complainant may wish to repeat his Leaving Certificate or complete the programme he will be treated differently to his sister in identical circumstances because as a student in a mainstream school she will have the option of remaining on in school.  It was submitted that the complainant, who has a disability, has been subjected to a less favourable educational experience while his sister, who has no disability, will be permitted without any impediment to complete her Leaving Certificate in the year in which she is nineteen.  It was submitted that the decision to truncate the complainant’s education has proved very challenging and upsetting for him but the school and his parents have no alternative but to pursue this course to guarantee that he will be permitted to remain in school until the year in which he sits his Leaving Certificate Applied in light of the respondent’s policy.

Complaint of Mrs. Kh (on behalf of her son Mr. Kh) - Case Ref: ES/2008/0071

2.3             The complainant, Mr. Kh, who is aged 14 years, has dyspraxia and also attends a special needs school.  The complainant commenced education in his local mainstream school but encountered significant difficulties and consequently, lost time in completing the primary school programme as he was required to stay back whilst in mainstream education.  The complainant transferred to a special school in September, 2006 following a psychological assessment and is due to commence his secondary education in September, 2009.  The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday.  As a result of this policy, the complainant will be required to skip a year in the secondary school cycle in order to complete the cycle by the year in which he will be eighteen years of age. 

2.4             The view of the complainant’s teachers and parents is that he will be forced to enter the senior cycle before he is ready, if he is to be assured the possibility of sitting his Applied Leaving Certificate which it is felt that he has the potential to successfully complete.  Because of the implications of the policy, it is planned that the complainant will move from sixth class in primary education directly into second year of the secondary school cycle.  The consensus between the complainant’s parents and teachers however, is that to equip him for employment and independent living in accordance with his real potential, he must complete the Leaving Certificate Applied Programme.  The stark reality is that he would benefit from extra time, not less, to enable him to achieve his potential within the education system and successfully complete his Leaving Certificate.  The consequence of the current policy is that achievements made in building his self-esteem will be lost and he will be subjected to pressure over and above that which should be acceptable.  The complainant’s sister, who is 20 months younger, is also due to commence her secondary education in September, 2009 in a mainstream school.  It was submitted that she will have the option of completing her secondary cycle in six years whereas the complainant, who has a disability and would benefit from more and not less time, will be obliged to complete his secondary cycle in four years as a result of the respondent’s policy.

Complaint of Mr. Kr (on behalf of his son Mr. Kr) - Case Ref No. ES/2008/0072

2.5             The complainant, Mr. Kr, who is aged 17 years, has learning disabilities and also attends a special needs school.  The complainant commenced his primary education in mainstream school but it quickly became apparent that he was struggling and he fell behind and required assistance.  He attended a special education facility for a number of years whilst at primary school before transferring back to his local mainstream school where he completed sixth class.  Due to the delay in completing the primary cycle where he was required to stay back, he commenced his secondary education at the special needs school at the age of 14 in September, 2006.  The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday.  As a result of this policy, the complainant was forced to skip first year in secondary school and commence immediately in second year.  This caused him to be subjected to pressure over and above the normal pressures for a disabled student who has learning difficulties.  However, despite this the complainant successfully completed his Junior Certificate in two years and is now following the Leaving Certificate Applied curriculum.  

2.6             The complainant was caused to skip first year in the secondary cycle as this was the only conceivable way of enabling him to complete the Leaving Certificate cycle by the year in which he reaches his eighteenth birthday.  It was submitted that it is the shared and emphatic view of his teachers and parents alike, that if the complainant is to achieve his potential of employment and independent living, he must complete his Leaving Certificate Applied programme.  The considered view of the professionals working with the complainant is that he has the ability to complete the programme and having completed the programme he will be in a position to confirm that he has the standard minimum educational qualification for most employment in the State.  It was submitted that the respondent’s policy has a present and serious impact on the complainant and that he has been subjected to additional pressures as a result of this policy.  

Complaint of Mr. & Mrs. Hy(on behalf of their daughter Miss. Hy) - Case Ref No. ES/2008/0073

2.7             The complainant, Miss. Hy, who is aged 18 years, has a mild learning disability and attends a special needs school.  She commenced education in her local mainstream school but encountered significant difficulties in terms of her education and consequently, she transferred to a special school in September, 2001 (having completed third class in a mainstream primary school).  The complainant has made significant progress in terms of her education in the time that she has attended the special school and she is currently following the Leaving Certificate Applied Programme, having completed the Junior Certificate Programme in three years.  The complainant is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit the Leaving Certificate Applied examination.  The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday.  As a result of the respondent’s policy she lingers under the very significant apprehension that she will not be allowed to return to the special school that she attends to complete the Leaving Certificate Applied Programme.  This is very disruptive to her studies and causes anxiety and heightened insecurity. 

2.8             It was submitted that the complainant is a student with the capacity to complete the Programme and she has the potential to successfully sit her Leaving Certificate Applied.  It was further submitted that if the complainant is deprived of an opportunity to do so, or is undermined in her ability to do so by the respondent’s policy, the lifelong implications for her and her ability to live independently and secure employment may be compromised.  The complainant submitted that the respondent has indicated in correspondence to the complainant’s representative dated 19 June, 2008 that it will be necessary for her to transfer to adult services at the age of eighteen years.  It was submitted that a formal application has been made to the respondent on behalf of the complainant for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied.  However, she is still awaiting formal confirmation as to whether this permission will be granted.  It was acknowledged that the respondent has indicated in its written submissions (in relation to the present complaint) that the complainant would be granted permission to remain at the school beyond her eighteenth birthday, however the respondent has not formally communicated this decision to her. 

Submissions made on behalf of the Complainants

2.9             The complainants also put forward a number of submissions, both in the form of written submissions and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:

·        It was submitted that the anomalous position arising from this policy is that children in mainstream schools who are older by reason of staying back a year or completing a transition year, who seek to repeat their final examinations notwithstanding that they are over 18 years of age, are automatically eligible to do so without permission or approval from the Department of Education & Science whereas a student in a special school is only entitled to remain in the school until the end of the school year in which he/she reaches the age of 18 years and may only continue in education with the permission of the Department, irrespective of whether the student has sat their Leaving Certificate or not. 

·        It was submitted that education is an area in which there has been significant and relevant recent legislative activity and the relevant legislation governing schools and the provision of education is the Equal Status Acts, 2000 to 2008, the Education Act, 1998, the Education (Welfare) Act, 2000, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005.  The complainants submitted that the respondent has not identified any statutory requirement within the aforementioned legislation for the restriction implemented by it on access to educational services of children in special needs schools as compared to these in mainstream schools.  Accordingly, it appears that the difference in treatment complained of in this case is based on policy and not on a statutory provision.  It was submitted that as a non-statutory policy relating to the provision of a service, it falls subject to scrutiny under the provisions of the Equal Status Acts and the fact that there may be no positive duty to compel the State to provide free education to young adults above the age of eighteen years, does not absolve the State through its agents from a duty not to discriminate.

·        It was submitted that the provision of education is a service for which the respondent bears overall responsibility and it is clearly a service that comes within the scope of the Equal Status Acts, 2000 to 2008.  When governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services[1].  It is quite clear that these steps have not been taken in this jurisdiction in light of the policy which is applied to students in special needs schools and not to students in mainstream schools.

·        Whilst there are additional obligations on service providers and educational establishments to provide reasonable accommodation to person’s with a disability within the meaning of Section 4 of the Equal Status Acts, it was submitted that the complainants in the present cases are being treated less favourably because of disability rather than their special needs being accommodated and accordingly, the reverse of reasonable accommodation is taking place.

·        It was submitted that the implementation of this policy does not and cannot affect students who do not have a disability.  The complainants claimed that it is an inevitable consequence of the fact that a child who attends a special needs school has a disability and the only way that these pupils would be granted admission to a special needs school is on foot of a psychological report having been carried out.  It was submitted therefore that the implementation of this policy only affects students with a disability who attend a special needs school.      

·        It was submitted that the alleged discrimination in the present case is a clear case of direct discrimination within the meaning of Section 3 of the Equal Status Acts as the policy in question only affects students with disabilities who attend special needs schools.  The complainants submitted that it is not sufficient to get around the prohibition on discrimination (that is provided for in section 3 of the Acts) to argue that students with disabilities who attend mainstream schools are not subjected to the requirement that they leave the school at the end of the year in which they have reached their eighteenth birthday. 

·        It was also submitted that the policy in question constitutes indirect discrimination against the complainants within the meaning of section 3(1)(c) of the Equal Status Acts.  The complainants claim that there is sufficient evidence before the Tribunal to enable it to make a finding that the complainants have been subjected to both direct and indirect discrimination.

3.            Summary of the Respondent’s Case

3.1             The respondent stated that special schools are classified by the Department of Education and Science as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday.  Following their departure from the special school the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years.  The respondent may and does provide funding in respect of the education component of such provision, which generally occurs through the Vocational Educational Committees.  The policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications.  These considerations include the appropriateness of adults being educated in an environment with young children and associated child protection issues.  The respondent stated that it is important to note the fact that if adults were not in general required to leave special schools, they may block places which would otherwise be available to children with educational needs.  It was submitted that the resource implications of this would be that the Minister would have to provide additional special schools or special school placements. 

3.2             The Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen years and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/Health Services Executive.  This policy permits pupils to remain in the special school beyond their eighteenth birthday on the application of the school.  It was submitted that the respondent simply restated this policy by way of letter to all special schools early in 2008 as it had become aware that schools were retaining pupils beyond the age of eighteen years without prior approval from the Department.  The types of situations where such an application is made and granted are where the relevant pupil is pursuing a course of study for an examination or qualification and same will not be completed before the end of the school year in which the pupil reaches their eighteenth birthday.  The issues which are considered by the respondent upon receipt of whether the retention of the pupil on the school will hinder enrolment of a younger pupil; whether the pupil is pursuing a course such as FETAC/Leaving Certificate Applied; whether the pupil will transfer to adult services after completion of their additional year in school and finally, whether a transition programme will be implemented by the school during the school year to ensure a successful transition.  Other issues which may be considered by the Department’s Inspectorate include the age and peer appropriateness of the pupil remaining in the school; whether there is space in the school; whether permitting the pupil to remain in the school would deprive another child of a place in the school and whether the educational benefit to the pupil remaining in the school outweighs the benefit to the pupil of transferring to a post-school placement. 

3.3             When an application is approved the pupil remains in the school on an ex-quota basis meaning that the school does not receive additional resources for the pupil.  However, in reality and practice that has no impact on the level and quality of education of the pupil.  In recent years due to the emphasis on inclusion and the greater number of children with special educational needs attending mainstream schools the numbers attending special schools have fallen.  The respondent has not withdrawn or reduced staffing resources in the special schools notwithstanding this decrease in number and in effect, some special schools are now staffed and resourced over and above the levels of support originally envisaged.    

Submissions made on behalf of the Respondent

3.4             The respondent also put forward a number of submissions, both in its written submission and at the hearing of the complaints, regarding the substantive issue which can be summarised as follows:

·        The respondent submitted that students with the same type or categories of disabilities as the complainants attend mainstream schools.  It was submitted that the same rules and policy that apply to non-disabled students in mainstream schools also apply to the disabled students that attend a mainstream school i.e. students with a disability in a mainstream school are automatically permitted to remain in school beyond the year of their eighteenth birthday.  It was therefore submitted that the students in special needs schools are not being treated differently because of their disability but rather because of the type of school they attend, which is subject to the election or choice of their parents. 

·        The respondent submitted that the complainants have not demonstrated that their respective disabilities are different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school.  It was submitted that the complainants have not adduced sufficient evidence (i.e. expert psychological evidence) to establish that their disabilities are of such a nature that would prevent them from being educated in a mainstream school with the appropriate supports.  Accordingly, it was submitted that the complainants have failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that they are persons with a different disability than a person with a mild intellectual disability who attends a mainstream school.     

·        It was submitted that it is not sufficient in order to succeed in a claim under the Equal Status Acts to show that the complainant is being treated differently than another person even if that difference of treatment arises from one of the grounds enumerated in the Acts, and this is particularly so in the field of education.  The mere fact that a complainant is being treated differently or that provision for education is made in a different way does not mean that the complainant is being treated unfavourably.  In the area of special educational needs, provision must be differentiated according to the specific needs of each individual[2].

·        It was submitted that the test in the education field is whether provision is being made for an appropriate education for the individual and not whether that provision is the same as other pupils.  Thus, it would only be if the complainants could establish that the provision which was being made for the appropriate comparator pupils in mainstream schools was appropriate and that the provision which was being made for complainants’ education was not appropriate that they could succeed in establishing discrimination.

·        It was also submitted that even if the complainants’ case was that by reason of the Departmental policy of which complaint is made, provision is not being made for an appropriate education, that issue is one to be litigated as an alleged breach of the respondent’s duties under the Constitution, the Education Act, 1998, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005.  It was submitted that it would be strange if the Oireachtas had enacted detailed and considered educational legislation which could in fact be circumvented by bringing a complaint before the Tribunal under the Equal Status Acts.

·        The respondent denies that the policy in question is either directly discriminatory against the complainants within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainants within the meaning of section 3(1)(c) of the Acts.

4.            Issues of Jurisdiction

4.1        The respondent also raised a number of issues, both in its written submission and at the hearing of the complaints, regarding the jurisdiction of the Tribunal to investigate the present complaints under the Equal Status Acts, 2000 to 2008.  The submissions made on behalf of both parties in relation to the issues of jurisdiction can be summarised as follows:

Issue of locus standi of the complainants to refer complaints under the Equal Status Acts

Respondent’s submission

4.2             The respondent submitted that the complainants do not have the locus standi to refer a complaint under the provisions of the Equal Status Acts.  It submitted that the complainants have based their complaints on a policy that does not currently affect them and even if the Tribunal were to find that the policy amounts to discrimination within the meaning of the Acts, it does not affect the complainants until they are required to leave school or such requirement is imminent.  It was submitted that the complaints are premature, in that the complainants are currently in school and are being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects them.  In addition to the complaints being premature in time there is nothing to suggest that the complainants will not be permitted to remain in school when the time comes and an application is made by their school in this regard. 

4.3             The respondent submitted that the definition of discrimination in section 3(1)(a) of the Equal Status Acts does not incorporate a situation of apprehended discrimination or an act of discrimination that may occur at some point in the future.  It was submitted that, in the present cases, the Tribunal is being asked to address a hypothetical situation in relation to what may or may not occur by reference to what the position may or may not be in law when the complainant has reached his eighteenth birthday.  The respondent submitted it is well established that the Courts do not entertain hypothetical situations, nor should the Tribunal, for issues which are at this point in time, mute.  It was submitted that the Equal Status Acts effectively prohibits discriminatory acts and permits complaints to be made where it is alleged that discriminatory acts have occurred, however there is nothing in the text of the Acts which would suggest that complaints can be made where discriminatory acts are apprehended or anticipated on a contingent basis.  The respondent submitted that it would be a revolutionary proposition if the Equal Status Acts were capable of addressing apprehended discrimination, and if this had been the intention of the Oireachtas, in enacting the legislation, the provision for such a contingency would have made explicitly clear in the wording of the Acts.     

Complainant’s submission

4.4             It was submitted that the complainants, do in fact, have the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2008 on the basis that they are already suffering the effects of this policy.  Both Mr. Kn and Mr. Kr have been placed in a situation whereby they are obliged to complete their secondary education in a truncated period of time as compared to students who are attending mainstream school.  As the policy dictates that the complainants must leave the school in the year in which they reach their eighteenth birthday, the school and their parents have taken steps to truncate their programme with the result that they have been caused to skip a year of their secondary education.  As a result, both of the complainants find themselves in a position whereby they must complete the Leaving Certificate Programme in a shorter time frame than a student who attends a mainstream school i.e. the complainants have only four years in the senior cycle to complete their Leaving Certificate whereas a student who attends a mainstream secondary school, has six years.  The decision to truncate their education has proved very challenging and upsetting for the complainants, who have special needs and therefore would benefit from more time rather than less in completing the programme, but the school and their parents have no alternative but to pursue this course to guarantee that they will be permitted to remain in school until the year in which he sits his Leaving Certificate. 

4.5             In the case of Miss Hy, she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit her final examinations.  It was submitted that a formal application has been made to the respondent on her behalf for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied.  However, she is still awaiting formal confirmation as to whether this permission will be granted.  It was submitted that the policy has already had a negative impact upon her in terms of the stress and anxiety to which she has been subjected as a result of the uncertainty as to whether or not she will be allowed to remain at the school in order to complete her Applied Leaving Certificate. 

4.6             In the case of Mr. Kh, he is due to commence his secondary education in September, 2009 at the age of 14 years.  It was submitted that he will be forced to enter the senior cycle (i.e. secondary education) before he is ready and if he is to be assured of the possibility of sitting his Leaving Certificate Applied which it is felt that he will have the potential to successfully complete.  Because of the implications of the policy, it is planned that the complainant will have to move from sixth class in primary education directly into second year of the secondary school cycle (as he will have only four years available to him in the secondary cycle before he is required to leave the special school).  It was submitted that the policy has already had an impact on his education in terms of the plans that have to be put in place in order to ensure that the complainant will be allowed to complete his Leaving Certificate Applied by the end of the school year in which he reaches his eighteenth birthday.

4.7             It was submitted that the wording contained within the definition of discrimination in section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future.  This section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present cases i.e. an apprehended refusal of permission to remain in the school when the complainants have attained the age of 18 years.  It was submitted that this argument is supported by the language used in the definition of discrimination at section 3(1)(a)(iii) where the wording “may exist in the future” is used in relation to the discriminatory grounds.  The complainants submitted that the wording within this section is drafted with the intention that it have a very wide scope in combating discrimination, and it was submitted that it applies to the situation that pertains in the present cases, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which he has reached his eighteenth birthday.   

Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts

Respondent’s submission

4.8             The respondent submitted that the Department of Education & Science is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education.  The respondent submitted that section 7 is the only provision within the Equal Status Acts which governs discrimination in the education sphere and therefore, in order to succeed in the present cases, the complainants must bring their claims within this section of the Acts and demonstrate that the respondent, in exercising its functions in relation to education falls within section 7 of the Acts.  It was submitted that in order to do so, the complainants must show that the respondent is an “educational establishment” within the meaning of section 7(1) of the Acts and that it is discriminating against the complainant in one or more of the areas set out in section 7(2) of the Acts.  It was submitted that the respondent is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7(1) of the Acts.  In light of that fact, the respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts.

4.9             The respondent does not own, manage or govern the school which is being attended by the complainants and which actually delivers the education which is complained of in these complaints.   Instead, it claims that the Education Act, 1998 makes it entirely clear that it is the Board of Management of a school which is obliged to fulfil these functions, and indeed has a specific and recognised right to manage its own affairs in doing so.  The respondent referred to the Crowley case[3] in which the relationship between a national school, its teachers and the Department of Education and Science was considered by the Supreme Court.  There it was noted that the obligation of the State under Article 42.4 of the Constitution was “to provide for” free primary education and not to supply it directly.  It was submitted that the respondent does provide funding to the schools which are delivering the complainants’ education in order to provide for that education but that does not constitute the provision of a service within the meaning of the Equal Status Acts or render the respondent an educational establishment within the meaning of the Acts.

4.10         Even if it is incorrect in its submission that section 7 of the Equal Status Acts is the sole provision governing discrimination in education, the respondent does not fall within any of the remaining meanings of “provider of a service” contained within section 4(6) of the Acts.  The respondent does not provide education, so even if the delivery of education constitutes the provision of a service (other than in the sense of section 4(6)(e) of the Acts) this is not one that is provided by the respondent.  The respondent is, therefore, not providing a service within the meaning of section 5(1) and is not “a provider of a service” within the meaning of section 4(5) of the Acts.  It was therefore submitted that the present complaints against the respondent are fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.         

Complainant’s submission

4.11         The complainants accept that the respondent is not an “educational establishment” within the meaning of section 7 of the Equal Status Acts, 2000 to 2008.  However, it was submitted that the provision of education services within the meaning of the Equal Status Acts is not strictly confined to those services that are provided by “educational establishments” within the meaning of section 7 of the Acts.  The complainants submitted that the role of the respondent as a service provider within the education sphere is clearly defined in the Education Act, 1998[4] and it was contended that the Minister has a very important role in the control and management on a day to day basis of the school that the complainants attend, which includes, for example, the responsibility for the employment and payment of teachers, the examination and certification system, the evaluation of schools and regulation of school activities through the issue and dissemination of Departmental circulars. 

4.12         The complainants submitted that the definition of the word “service” in section 2 of the Equal Status Acts is extremely broad and the Tribunal should give this provision as wide an interpretation as possible in order to achieve the aim and purpose of the legislation i.e. as a social and remedial statute to promote equality and prohibit discrimination[5].  The complainants also submitted that it is clear from the wording included in the long title of the Equal Status Acts that it is remedial legislation that was adopted to address social injustice and consequently, it should be interpreted in a broad manner.  Accordingly, it was submitted that the Minister for Education & Science is clearly a service provider in the education sphere within the meaning of section 5 of the Equal Status Acts. 

5.     Conclusions of the Equality Officer in relation to the issues of jurisdiction

5.1             Firstly, I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaints.

Locus standiof the Complainants to refer a complaint under the Equal Status Acts

5.2             In considering this issue, it was not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level (with the option of completing a transition year) and a further two years at Leaving Certificate level.  In the present cases, it was decided that both Mr. Kn and Mr. Kr would have to complete their secondary education in a four year period rather than the normal period of five years to ensure that they would have completed the Leaving Certificate Applied Programme in the year in which they have reached their eighteenth birthday (i.e. in order to comply with the requirements of the policy). 

5.3             Having regard to the foregoing, I am satisfied that the effects of the policy have already had an impact on the education of both Mr. Kn and Mr. Kr in terms of the period of time within which they will be afforded in order to complete their secondary education.  I accept that the complainants, in effect, will not have to apply to the Minister for permission to remain in the school until they have reached their eighteenth birthday.  However, it is clear that the uncertainty as to whether or not they would be allowed to remain at the special school in order to complete the Applied Leaving Certificate, if such an application were necessary at that juncture, has resulted in the decision to skip a year in order to ensure that their secondary education will be completed in compliance with the age requirements of the policy.  I am therefore satisfied that the policy has already had a direct impact on both Mr. Kn and Mr. Kr in terms of the duration of time which they have been afforded in order to complete their secondary education. 

5.4             In the case of Miss Hy, I note that she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete this programme she will be aged 19 years before she is due to sit her Leaving Certificate Applied examinations.  It was not disputed that students are in general afforded a two year period to complete the Leaving Certificate Applied/Leaving Certificate curriculum irrespective of whether they are attending a special school or a mainstream school.  Having regard to the terms of the policy, it is clear that the complainant, upon commencing the Leaving Certificate Applied Programme in September, 2008, would have done so in the absence of any assurance or guarantee that she would be permitted to remain in the school in order to complete this course of education.  I am satisfied that the terms of the policy had been clearly communicated to her (by virtue of correspondence received from the respondent) prior to her commencement of this programme of education.  I am therefore satisfied that the effects of the policy had a direct impact upon the complainant at that juncture and that it continues to do so on an ongoing basis as it is clearly the case that she will have to apply for permission to remain at the school in order to complete her Leaving Certificate Applied Programme.

5.5             In the case of Mr. Kh, I note that he is due to commence his secondary education in September, 2009 at the age of 14 years.  It is planned that the complainant will commence the Junior Certificate Programme at this juncture.  I am satisfied that I have not been presented with any evidence from which I could conclude that he will not be in a position to commence the Junior Certificate Programme at this juncture.  It is clear that the complainant will be 19 years of age by the time he has completed the five year cycle of education that is normally afforded to students within which to complete the Junior Certificate and Leaving Certificate Applied Programmes.  Having regard to the implications of the policy, I am therefore satisfied that the complainant can say with certainty at the present point in time that he will not be afforded the normal period of five years within which to complete the Junior Certificate/ Leaving Certificate Applied Programmes.

5.6             As a consequence of this situation, I accept the complainant's evidence that it has been necessary to make a decision that he will have to move from sixth class in primary education directly into second year of the secondary cycle in order to ensure that he will have completed the Leaving Certificate Applied by the end of the year in which he will reach his eighteenth birthday.  I also accept the complainant's evidence that it has been necessary to make this decision at the present juncture despite the fact that he would benefit from an additional year of education in the primary cycle.  Based on the foregoing, I am satisfied that the requirements of the policy have already had an impact on the complainant's education both in terms of the duration of time that he has been afforded in the primary cycle and the duration of time which he will be afforded in the secondary cycle.   

5.7             I have also noted the complainants’ submission that the definition of discrimination within section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future.  As I have found that the policy in question has already had a direct impact on the complainants in terms of their education, I am therefore not required to consider the merits or otherwise of this argument any further in order to decide the substantive issue in question in the present cases.  Accordingly, I find that all of the complainants do have the locus standi to refer a complaint under the Equal Status Acts, 2000 to 2008.

Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts

5.8             The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2008.  I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts and that his role is to “provide for education” rather than being a provider of education.  In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which state that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and section 7(2)(b) which provides that it “shall be a function of the Ministerto monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education”.  I am of the view that these provisions clearly indicate that the Minister has a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education. 

5.9             I accept the respondent’s argument that it is not an educational establishment within the meaning of section 7 of the Equal Status Acts, however, I cannot accept that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do not constitute a service within the meaning of section 2 of the Equal Status Acts.  “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”.  I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts.  Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts. 

5.10         I have also taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science[6] in which this very issue was decided upon.  In this case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts. 1998 and he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State.  I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” .  In considering this matter, I fully concur with the findings of the Equality Officer on this issue in the aforementioned case.  Accordingly, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.

5.11         Furthermore, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants in the present cases. 

6.            Conclusions of the Equality Officer in relation to the substantive issue

6.1             The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant.  Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.  In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. 

Discriminatory Treatment

6.2             In the present case, it was not disputed that all of the complainants have learning disabilities and I am therefore satisfied that they are persons with a disability within the meaning of section 2(1) of the Equal Status Acts.  Therefore, the question that I must address in the present case in whether or not the requirement that is imposed upon the complainants, as students who attend a special school, to leave the school in the year in which they reach their eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts. 

6.3             In considering this issue, I am of the view that it is important to take into consideration the nature of the educational services that are provided by special schools to its students in comparison to the services that are provided by mainstream secondary schools.  In this regard, I note that special schools are classified by the Department of Education & Science as primary schools and they provide a wide range of holistic educational programmes that are designed to meet the individual needs of the students and that these schools do not focus exclusively on preparing students to acquire certification in terms of State examinations.  The special school which is attended by the complainants caters for children with mild learning disorders, and in addition to the provision of holistic educational programmes, it also provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students.  However, the decision as to whether or not a particular student pursues a curriculum that leads to certification is very much dependent on the individual ability of the particular student and it is therefore the case that a certain proportion of students who attend special schools will be deemed not to have the requisite academic ability to pursue such a course.  This is in contrast to the services which are provided by secondary schools operating in the mainstream educational sphere whose primary objective is to prepare students to acquire accreditation in terms of state examinations such as the Junior Certificate, Leaving Certificate/Leaving Certificate Applied.   

6.4             I have taken note of the evidence of Mr. A, the School Principal (of the special needs school that the complainants attend) that the issue of preparing students to acquire certification in terms of accredited State examinations came into effect for special schools following the introduction of the Leaving Certificate Applied curriculum in 1995.  It is clear that the introduction of courses leading to accreditation, such as the Junior Certificate/Leaving Certificate Applied, to the post-primary curricula of special schools at that juncture made it possible for students attending these schools to pursue courses that were also available to students attending mainstream secondary schools.  I am of the view that the introduction of such accredited courses to the secondary level curricula of special schools at that juncture would have resulted in the emanation of two different categories of students in terms of their ultimate secondary level educational objectives, firstly, those students who pursue an accredited course of education (such as the Junior Certificate/Leaving Certificate Applied) and secondly, those students who pursue non-accredited individual programmes of education. 

6.5             I am of the view that it is important to note that Mr. Kn, Mr. Kr and Miss Hy are all currently pursuing an accredited course of education, i.e. the Junior Certificate/Leaving Certificate Applied at the special school which they attend.  In the case of Mr. Kh, he will be commencing the Junior Certificate Programme at the special school which he attends in September, 2009.  I would therefore make an important distinction between the two aforementioned categories of students who attend special schools in terms of deciding whether the application of the policy in question in the present cases is discriminatory.  I believe that it is necessary to make such a distinction as the implications of the policy will potentially have different consequences for both of these categories of students. 

6.6             Based on the evidence presented, it would appear to be the norm that students who are attending special schools (as a result of their disability) would normally commence their secondary education at a more advanced age than their counterparts in mainstream education.  It is therefore highly unlikely that such a student will have completed a five year programme of education leading to certification (e.g. the Junior Certificate and Leaving Certificate Applied) by the time he/she has reached the age of eighteen years.  This is in contrast to the situation that pertains in the case of a student who attends a special school and who is pursuing a non-accredited programme of education.  This category of student would normally pursue an individually tailored course of education and is therefore not subjected to the same requirements in terms of having to complete an accredited curriculum within a defined period of time in order to comply with the requirements of the policy. 

6.7             In the present cases, it was not disputed that the school (which the complainants attend) was aware of the terms of the policy upon the introduction of accredited courses.  However, it would appear that it did not strictly adhere to the requirement to apply for permission to retain a student after he/she had reached eighteen years of age and a certain amount of discretion was exercised by the school in terms of the application of this policy.  I note that it was only when the terms of the policy were re-stated in a Tuairisc Scoile (a School Report carried out by the Department of Education & Science) in May, 2005 that the implications of the policy were formally brought to the attention of the Parents Association by the School Principal, Mr. A.  I am satisfied that the potential implications of the policy came more acutely into focus for the parents/teachers of students who were pursuing or intending to pursue accredited secondary level educational courses (such as the Applied Leaving Certificate) at this juncture and following the receipt of subsequent correspondence from the Department of Education & Science which outlined the requirement of schools to comply with the policy. 

6.8             I am satisfied that this increased level of awareness of the policy and the uncertainty as to whether any extension to remain in the special school would be granted, if requested, resulted in decisions been taken which resulted in both Mr. Kn and Mr. Kr skipping a year of their secondary education in order to ensure that they will have completed their respective courses of education by the end of the year in which they reached the age of eighteen years and thereby comply with the requirements of the policy.  In the case of Mr. Kh, it has also resulted in a decision that it will be necessary for him to move from sixth class in the primary cycle directly into second year of his secondary education in order to ensure that he will have completed his accredited course of education by the end of the year in which he reaches the age of eighteen years.  I fully accept that the policy provides the facility whereby students can apply for permission to remain at the school for a further year in order to complete their respective courses and the evidence adduced confirms that the respondent has not to date refused any such application on behalf of a student who was pursuing a course of education leading to certification. 

6.9             However, I am satisfied that the option of applying for an extension was of little reassurance to the complainants when decisions were being taken as to when they should commence their respective accredited courses of education given that the permission to grant any such extension was entirely at the discretion of the Department of Education & Science and there was no guarantee that any such application would be acceded to, if it were to be made at some stage in the future.  Having regard to the foregoing, and taking into consideration that the complainants have a learning disability and the respective ages at which they commenced or will commence their secondary education, I am satisfied that the requirement to leave the school at the end of the year in which they will have reached their eighteenth birthday puts them at a distinct disadvantage and presents serious, if not insurmountable, difficulties in terms of their ability to complete a course of education leading to a certification (such as the Junior Certificate/Leaving Certificate Applied) by the time they have reached this age. 

6.10         In order for me to determine whether the aforementioned disadvantage to which the complainants have been subjected in terms of the implementation of the policy in question constitutes discriminatory treatment within the meaning of the Equal Status Acts, it is necessary to make the appropriate comparison between the complainants and that of their counterparts in mainstream education.  It is also necessary for me to decide whether the alleged discriminatory nature of the policy constitutes direct discrimination within the meaning of section 3(1)(a) or indirect discrimination within the meaning of section 3(1)(c) of the Acts.  In considering this issue I note that the “disability ground” is defined in section 3(2)(g) of the Equal Status Acts as “that one is a person with a disability and the other either (my emphasis) is not or is a person with a different disability”.  I am of the view that the appropriate comparator in this case is either a student without a disability or a student with a different disability than the complainants who attends a mainstream secondary school.  Given the nature of the educational services that are provided by mainstream secondary schools it is the case that the comparator will also be a student who is pursuing a course of education leading to accreditation (i.e. the Junior Certificate or the Leaving Certificate/Applied Leaving Certificate).     

6.11         I do not accept the respondent’s argument that the complainants in the present cases fail to satisfy the requirements of section 3(2)(g) of the Acts on the basis that they cannot demonstrate they have a different disability than a person with a mild learning disability who attends a mainstream secondary school.  I am of the view that it is absolutely irrelevant, when deciding upon the appropriate comparator in this case, that there are also students who attend mainstream schools who have learning disabilities similar or identical to that of the complainants.  I am satisfied that the reason the complainants attend a special school is as a direct consequence of the special educational requirements that arise because of their respective disabilities.  It is clearly the case that a special school will cater only for students who have a disability and who have been professionally assessed as requiring the services of such a school.  Therefore, the policy in question in the present case only affects students with a disability who attend special schools and it does not affect either student’s without a disability or with a different disability to the complainants that attend mainstream schools. 

6.12         I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against the complainants within the meaning of sections 3(1)(a) and 3(1)(c) of the Acts.  As I have already stated, I am satisfied that the policy only affects students with a disability who attend special schools and that it does not affect students attending mainstream schools.  I am therefore satisfied that the terms of the policy i.e. the requirement for students attending special schools to leave the school at the end of the year in which they reach eighteen, does not constitute “an apparently neutral provision” within the meaning of section 3(1)(c) of the Acts, rather it is a provision which directly affects a specific category of persons, namely disabled students who attend special schools.  I therefore find that the issue as to whether or not the policy in question is discriminatory falls to be decided within the provisions of section 3(1)(a) of the Equal Status Acts i.e. direct discrimination. 

6.13         In making the apposite comparison in this case, it is not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level with the option of completing a transition year and a further two years at Leaving Certificate level (in some cases the student will be also be facilitated in repeating the final year of the Leaving Certificate programme).  It is also the case that a student in mainstream education is not required to have completed his/her secondary education by the end of the year in which he/she has reached their eighteenth birthday.  I accept that the Leaving Certificate Applied may not be available in every mainstream secondary school. However, in the mainstream schools where it is, the students who pursue this course are automatically entitled to avail of the same facilities in terms of the duration of time allowable to complete their studies, as those students who pursue the standard Leaving Certificate programme.  Having regard to the foregoing, I am satisfied that the policy which requires the complainants (as students who are pursuing or intend to pursue an accredited course which is also available in mainstream secondary education) to leave the special school at the end of the year in which they reach their eighteen birthday, in circumstances where no such requirement is enforced upon students who attend mainstream secondary education, clearly amounts to less favourable treatment on the grounds of their disability within the meaning of the Equal Status Acts. 

6.14         I have carefully considered the respondent’s evidence that the implementation of the policy is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications.  I have also taken into consideration that the Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/HSE.  In considering this defence, I accept that the policy may be entirely appropriate in the situation of a student at a special school who has reached the age of eighteen years and who is not pursuing an accredited course of education such as the Leaving Certificate Applied.  In such cases it may well be beneficial and in the best interests of that particular student (depending on their individual circumstances) to transfer from the special school to adult services at the end of the year in which he/she has reached the age of eighteen years.  However, I cannot accept that the policy serves the best educational or developmental interests of students, such as the complainants, who are pursuing an accredited course of education at a special school.  I cannot see any merit in a policy that could preclude such a student from completing an accredited programme of education in the school environment which has developed their ability and confidence to complete such a programme.

6.15         Based on the evidence presented, it is clear that the policy at issue in the present cases had been in existence for a considerable period of time prior to the introduction within special schools of courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied).  I am of the view that the indiscriminate application of this policy for all students who were attending special schools became untenable at that juncture and it should have been reviewed in order to ensure that students in special schools who were completing courses leading to accreditation were afforded similar facilities to their counterparts in mainstream education in terms of the duration of time that they are allowed to complete these courses.  In the circumstances, I find that the complainants have been subjected to less favourable treatment than their counterparts in mainstream education on the grounds of their disability in terms of the requirement that they should leave the special school at the end of the year in which they have reached their eighteenth birthday.  Accordingly, I find that the complainants have succeeded in establishing a prima facie case of discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.

Reasonable Accommodation

6.16         The parties also made submissions, both in writing and at the oral hearing of the complaints regarding the issue as to whether or not the policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts.  Having regard to the totality of the evidence adduced, I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present cases.  Accordingly, I am satisfied that it is not necessary for me to consider these complaints in the context of section 4 of the Acts. 

7.            Decision

7.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.  I find that the complainants have established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts in terms of the requirement that is imposed upon them by the respondent to leave the special school at the end of the year in which they have reached their eighteenth birthday and that the respondent has failed to rebut the inference of discrimination.  

7.2             I hereby make the following order in accordance with section 27(1)(a) of the Equal Status Acts:

·        The respondent is hereby directed to pay both Mr. Kn (Case Ref. Nos. ES/2007/0005 and ES/2008/0049) and Mr. Kr (Case Ref No. ES/2008/0072) the sum of €4,000 and to pay Miss Hy (Case Ref No. ES/2008/0073) the sum of €2,000 for the effects of the discriminatory treatment in this case.  In the case of Mr. Kh (Case Ref. No. ES/2008/0071), I do not consider an order for compensation to be appropriate.  In making this decision, I have taken into consideration that Mr. Kh is due to commence his secondary education in September, 2009 and having regard to the order which I have made in paragraph 7.3, I am satisfied that it will result in him being afforded the same duration of time to complete the Junior Certificate/Leaving Certificate Applied Programmes as his counterparts in mainstream education. 

·        In deciding upon the quantum of the awards in the cases of Mr. Kn, Mr. Kr and Miss Hy, I have taken into consideration that Miss Hy’s period of education in the secondary cycle has not been truncated to date and she has not been forced to skip a year out of the normal cycle that is afforded to a student who is pursuing the Leaving Certificate Applied Programme.  However, I am satisfied that the policy in question has resulted in a great deal of stress and anxiety to her in terms of the uncertainty as to whether she will be allowed to complete this programme of education in the special school which she presently attends.  This is in contrast to the situation that pertains in the cases of Mr. Kn and Mr. Kr, both of whom have been forced to skip a year of their education in the secondary cycle in order to ensure that they will have completed the Leaving Certificate Applied Programme in compliance with the respondent’s policy.  I am of the view that this course of action has had a serious impact on their education, especially in light of the fact that they are students with a disability who would benefit with being afforded a longer period of time to complete their respective courses of education than their counterparts in mainstream education; however, the policy in question has resulted in a situation whereby they have been forced to complete their secondary education in a truncated period of time.

7.3             In accordance with the provisions of section 27(1)(b) of the Equal Status Acts, the respondent is hereby directed to review the policy that requires students who are attending special schools to leave the school at the end of the year in which they reach their eighteenth birthday with a view to ensuring that students in special schools who are pursuing courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied) be afforded the same duration of time to complete these courses as their counterparts in mainstream education.      

Enda Murphy

Equality Officer

5th August, 2009