DEC-S2009-051 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC–S2009-051

PARTIES

Mrs. Cr (on behalf of her daughter Miss. Cr)

(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)

File Reference: ES/2008/0074                

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

This complaint was referred to the Director of the Equality Tribunal on 30^th June, 2008 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 complainant claims that she has been discriminated against by the respondent on the grounds of her 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

2.1             The complainant, Miss. Cr, who is aged 13 years, has a learning disability 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 Junior Certificate/Leaving Certificate Applied to its students.  The complainant commenced her primary education in mainstream school when she was aged 5 years but she experienced serious difficulties because of her learning disability.  Following an assessment by a clinical psychologist whilst in senior infants the complainant was transferred to the special needs school in March, 2003 at the age of 7 years.  She has made significant progress during her time at the special needs school and is currently exceeding all expectations.  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. 

2.2             The complainant is currently following a Holistic Life Skills Educational Programme. However, her full educational potential has not been assessed and it remains an open question as to whether she has the ability to complete the Junior Certificate and/or Leaving Certificate Applied programmes.  Given the strides that she has made, active consideration is being given as to how to maximise her potential at the school by the time she is eighteen years of age and it has been made clear that for her to participate in a formal programme of education (such as the Junior Certificate/Leaving Certificate Applied) to conclusion, she will be required to skip parts of the normal curriculum in order to make up time.  In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level) although educationally she would have benefited from another two years following the primary school programme.  It has been necessary to follow this course of action to ensure that the complainant will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years. 

2.3             The complainant’s mother claimed that her daughter needs the maximum amount of time available in the special school and that she will not be ready to leave the school by the time she has reached eighteen years of age.  It was submitted that she would benefit greatly from having the option of spending an additional or repeat year in the senior cycle.  However, the option of an additional year is not automatically available to her as would be the case of a student in mainstream education because of the respondent’s requirement that she transfer to adult services upon reaching the age of eighteen years.  

Submissions made on behalf of the Complainant

2.4             The complainant 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 complainant 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 complainant in the present case is being treated less favourably because of disability rather than her 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 complainant 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 complainant 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 complainant within the meaning of section 3(1)(c) of the Equal Status Acts.  The complainant claims that there is sufficient evidence before the Tribunal to enable it to make a finding that she has 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.  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

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

·        The respondent submitted that students with the same type or category of disability as the complainant 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 complainant has not demonstrated that her disability is different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school.  It was submitted that the complainant has not adduced sufficient evidence (i.e. expert psychological evidence) to establish that her disability is of such a nature that would prevent her from being educated in a mainstream school with the appropriate supports.  Accordingly, it was submitted that the complainant has failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that she is a person 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 complainant 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 complainant’s education was not appropriate that she could succeed in establishing discrimination.

·        It was also submitted that even if the complainant’s 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 bring a complaint before the Tribunal under the Equal Status Acts.

·        The respondent denies that the policy in question is either directly discriminatory against the complainant within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainant 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 complaint, regarding the jurisdiction of the Tribunal to investigate the present complaint 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 regarding the locus standi of the complainant to refer a complaint under the Equal Status Acts

Respondent’s submission

4.2             The respondent submitted that the complainant does not have the locus standi to refer a complaint under the provisions of the Equal Status Acts.  It submitted that the complainant has based her complaint on a policy that does not currently affect her 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 complainant until she is required to leave school or such requirement is imminent.  It was submitted that the present complaint is premature, in that the complainant is currently in school and is being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects her.  In addition to the complaint being premature in time there is nothing to suggest that the complainant 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 case, 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 her 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 complainant, does 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 she is already suffering the effects of the policy.  In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level), although educationally she would have benefited from another two years following the primary school programme.  It has been necessary for the complainant to follow this course of action in order to ensure that she will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years.  It was submitted that the requirements of the policy have placed the complainant in a situation whereby she has been moved prematurely from primary education into the senior cycle in order to maximise her ability by the time that she will be required to leave the special school she is attending. 

4.5             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.  It was submitted that this section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present case i.e. an apprehended refusal of permission to remain in the school when the complainant has 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 complainant 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 case, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which she has reached her 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

4.6             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 case, the complainant must bring her claim 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 complainant 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 her 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.

4.7             The respondent does not own, manage or govern the school which is being attended by the complainant and which actually delivers the education which is complained of in this complaint.   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.

4.8             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 complaint against the respondent is fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.         

Complainant’s submission

4.9             The complainant accepts 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 complainant 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 complainant attends, 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. 

4.10         The complainant 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 complainant 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 complaint.

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

5.2             In considering this issue, I note that the complainant transferred from mainstream education to the special school which she is presently attending in March, 2003 at the age of seven years having completed junior and senior infants in the mainstream school.  The complainant moved from the primary cycle to the secondary cycle of her education in September, 2008 when she 12 years of age.  The complainant’s evidence was that a decision was taken (by her parents in consultation with her teachers and School Principal) that she should be fast tracked prematurely into the secondary/senior cycle in order to ensure that she would have the maximum amount of time available in secondary education before she was required to leave the school in compliance with the requirements of the policy.  I have also taken note of the complainant’s mother’s evidence that she felt there was no option but to take this decision despite the fact that her daughter (because of her disability) would have benefited from spending more time in the primary cycle. 

5.3             Based on the evidence presented, I am satisfied that the effects of the policy have already had an impact on the education of the complainant in terms of the period of time within which she has been afforded in the primary cycle of her education.  I accept the complainant’s evidence that it would have been more beneficial for her to have spent a further period of time in the primary cycle of her education.  I am satisfied that the reason the decision was taken to truncate her primary education was as a direct consequence of the requirement of the policy which dictates that she will have to leave the special school which she is attending at the end of the year in which she reaches her eighteenth birthday. 

5.4             I have also noted the complainant’s 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 complainant in terms of her 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 the complainant does 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

5.5             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 the 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 the provisions of section 7(2)(b) which states 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. 

5.6             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. 

5.7             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.  Having regard to the foregoing, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.

5.8             Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegation of discrimination that has been made by the complainant in the present case. 

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 she can rely in asserting that prohibited conduct has occurred in relation to 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 the complainant has a learning disability and I am therefore satisfied that she is a person 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 complainant, as a student who attends a special school, to leave the school in the year in which she will reach her eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts. 

6.3             In order for me to determine whether the complainant in the present case has been subjected to less favourable treatment within the meaning of the Equal Status Acts, in terms of the implementation of the policy in question, it is necessary to make the appropriate comparison between the complainant and that of her 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 complainant who attends a mainstream secondary school.          

6.4             I do not accept the respondent’s argument that the complainant in the present case fails to satisfy the requirements of section 3(2)(g) of the Acts on the basis she cannot demonstrate that she has 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 complainant.  I am satisfied that the reason the complainant attends a special school is as a direct consequence of the special educational requirements that arise because of her disability.  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 complainant that attend mainstream schools. 

6.5             I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against her 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 but 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. 

6.6             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 to complete the Junior Certificate, two years to complete the Leaving Certificate/Leaving Certificate Applied with the option of a transition year).  I am also satisfied that a student who is participating in mainstream secondary 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.  Having regard to the foregoing, I am satisfied that the implementation of the policy which requires the complainant to leave the special school she is attending at the end of the year in which she reaches her eighteen birthday, in circumstances where no such requirement is enforced upon a student attending mainstream secondary education, is sufficient to raise an inference of less favourable treatment on the grounds of her disability within the meaning of the Equal Status Acts.  In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.

Respondent’s Rebuttal

6.7             In considering whether the implementation of this policy upon the complainant, as a student who attends a special school, amounts to discrimination on the grounds of her disability, 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 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 complainant 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.  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. 

6.8             I would make an important distinction between students who are pursuing a programme of education leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied/FETAC) and those who are not in terms of deciding whether the application of the policy in question is discriminatory against students who attend special schools.  It was not disputed that the Junior Certificate curriculum normally takes a period of three years to complete and the Leaving Certificate/Leaving Certificate Applied curriculum takes a further period of two years to complete irrespective of whether a student is attending a mainstream secondary school or a special school.  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 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 programme of education leading to certification (e.g. the Leaving Certificate Applied) by the time he/she has reached the age of eighteen years and thereby placing these students at a disadvantage when compared to their counterparts in mainstream education.  I am of the view that all students who are pursuing such accredited courses, irrespective of whether or not they are attending mainstream education or special schools, should be afforded similar facilities in terms of the duration of time that is made available to them to complete these accredited courses. 

6.9             However, in considering this issue further, I have also taken into consideration that a student (such as the complainant) who attends a special school and who participates in a non-accredited course of education is not subjected to the same requirements in terms of having to complete an accredited curriculum or course of education within a defined period of time.  In the present case, the complainant commenced the secondary/senior cycle of her education in September, 2008 and she is currently participating in a Holistic Life Skills Education Programme which has been specifically tailored to cater for her individual educational requirements.  Based on the evidence presented, I am satisfied that this programme of education has been and will continue to be reviewed and updated on a regular basis (by means of her Individual Education Plan) until she is required to leave the special school at the end of the year in which she reaches her eighteenth birthday and thereby providing her with an education to meet her individual needs.          

6.10         The respondent’s evidence was that the policy which requires the complainant to leave the special school at this juncture 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 noted 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.  I accept that this 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. 

6.11         Having regard to the foregoing, I am satisfied that the requirement for the complainant to leave the special school at this juncture will not by necessity result in the termination of her education as it is the case that appropriate measures and facilities have been put in place to accommodate the further educational requirements of such students after they have completed their educational programmes at the special school.  In the present case, I have not been presented with any expert or professional evidence from which I could reasonably conclude that it will not be in the best interests of the complainant to transfer to adult services at the end of the year in which she has reached her eighteenth birthday.  In the circumstances, I find that the implementation of the policy which requires the complainant to leave the secondary school at the end of the year in which she reaches her eighteenth birthday does not amount to discriminatory treatment on the grounds of her disability within the meaning of the Equal Status Acts.  Accordingly, I am satisfied that the respondent has successfully rebutted the inference of discrimination against the complainant on the grounds of her disability.

Reasonable Accommodation

6.12         The parties also made submissions, both in writing and at the oral hearing of the complaint 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 case.  Accordingly, I am satisfied that it is not necessary for me to consider this complaint 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 complainant has 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 and that the respondent has succeeded in rebutting the inference of discrimination.  Accordingly, I find in favour of the respondent in the present case. 

Enda Murphy

Equality Officer

5th August, 2009