DEC-S2009-013 - Full Case Report

Equal Status Acts, 2000-2008

Decision DEC-S2009-013

Ms. Erika Hendrick (deceased)

(Represented by Ms. Aisling Flynn and Ms. Madge O’Callaghan, Ballyfermot Advocacy service on behalf of the Estate of the late Ms. Hendrick)

-v-

National Learning Network t/a Roslyn Park College

(Represented by Mr. Paul Marren, of Martin E. Marren Solicitors)

File ref: ES/2004/0133

Date of Issue:27^th February 2009

TABLE OF CONTENTS

Summary of Decision

Equal Status Acts 2000 - 2008

Decision DEC-S2009-013

Ms. Erika Hendrick (deceased)

(represented by Ms. Aisling Flynn and Ms. Madge O’Callaghan, Ballyfermot Advocacy service on behalf of the Estate of the late Ms. Erika Hendrick)

-v-

National Learning Network t/a Roslyn Park College

(represented by Mr. Paul Marren, of Martin E. Marren Solicitors)

Dispute

This dispute concerns a complaint by Ms. Erika Hendrick (deceased) that she was discriminated against by the respondent on the Disability ground in terms of Sections 3(1)(a), 3(2)(g) and 4(1), contrary to Section 7(2) of the Equal Status Acts, 2000 to 2004. The complainant, Ms. Hendrick, died following the referral of this complaint to the Tribunal. 

Issue of Jurisdiction

The respondent raised a number of issues regarding the jurisdiction of the Tribunal to investigate this complaint. The Equality Officer made the following findings in relation to these issues of jurisdiction, namely that:

·     The present complaint under the Equal Status Acts has survived the death of the complainant, Ms. Hendrick and that her parents, on behalf of her estate, are entitled to continue to pursue the complaint. 

·     The complaint could proceed to hearing and that the Tribunal has the jurisdiction to investigate and hear the substantive allegations of discrimination made by the complainant in the present case.

Complainant’s case

The complainant, a wheelchair user, was a student at Roslyn Park College between 2002 and 2004.  The complainant claims that during her time at the College she was discriminated against by the respondent on the disability grounds as she was not provided with the opportunities to access the particular skills specific courses of her choice. She also maintains that the respondent failed to provide her with special measures and facilities in order to accommodate her needs during that time.   

Respondent’s case

The respondent stated that it provides educational training courses for people with disabilities and it claims that it did not discriminate against the complainant during her time at the College. It claims that the complainant was given an opportunity to access the courses she expressed an interest in pursuing and that it provided the necessary supports and structure to facilitate her.

Decision

The Equality Officer found that a prima facie case of discrimination had not been established by the complainant on the disability grounds in terms of sections 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts, 2000 to 2008.  Accordingly, the Equality Officer found in favour of the respondent in the matter.

Equal Status Acts 2000 - 2008

Decision DEC-S2009-013

Ms. Erika Hendrick (deceased)

(represented by Ms. Aisling Flynn and Ms. Madge O’Callaghan, Ballyfermot Advocacy service on behalf of the Estate of the late Ms. Erika Hendrick)

-v-

National Learning Network t/a Roslyn Park College

(represented by Mr. Paul Marren, of Martin E. Marren Solicitors)

Key words 

Equal Status Acts 2000 to 2008 -   Direct discrimination, section 3(1)(a)  -     Disability ground, section 3(2)(g) - Reasonable accommodation, section 4(1) - Educational establishments, section 7(2).

1. Delegation under the Equal Status Acts, 2000 to 2008

1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 1^st June 2004. On the 13^th June, 2008 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts 2000 to 2008, the Director delegated the case to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 3^rd December, 2008.

2. Summaryof claim

2.1 This claim concerns a complaint by Ms. Erika Hendrick (now deceased since the complaint was referred to the Tribunal) that she was discriminated against by the respondent on the disability ground in terms of section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts 2000 to 2004.

3. Background to the case

3.1 The complainant, Ms. Erika Hendrick, was a student at Roslyn Park College between September 2002 and April 2004. Roslyn Park College is a training centre for people with disabilities and is part of the National Learning Network (NLN), which is the training division of the Rehab Group[1]. All the students attending courses with the National Learning Network have a disability or multiple disabilities. The majority of the courses are funded by FAS and their purpose is to assist people with a disability with a view to employment or to further education.

3.2 Students attending Roslyn Park College are required to take an aptitude type assessment called Course Samples, prior to acceptance onto skill specific courses in the College. These assessments are called Course Samples. They are primarily designed to assess the students’ aptitude and suitability for a course by allowing them to test themselves against a sample of the course content.

3.3 Prior to Ms. Hendrick’s attendance at Roslyn Park College she studied at the NLN Swords Centre for two years, where she successfully completed a European Computer Driving Licence (ECDL) course. Also, after her time at Roslyn Park College she applied for and was accepted onto a Business Administration course with NLN Phibsboro in July 2004 where she studied until her untimely passing in September 2005. The case is being pursued by the complainant’s parents on behalf of their daughter’s estate.

4. Summary of Complainant’s Case

4.1 The complainant, Ms. Hendrick, suffered fromAtaxia Telangiectasia, which is a rare debilitating condition that affects, inter alia, the person’s mobility and motor responses; as a consequence Ms. Hendrick was a wheelchair user. The complainant has stated in her written submissions, that she was discriminated against by the respondent between October 2003 and 20^th March 2004 on the disability ground contrary to Section 7 of the Equal Status Acts 2000 – 2004 in terms of Section 3(1)(a), 3(2)(g) and Section 4(1) of the Acts. 

4.2 The complainant started in Roslyn Park College at foundation level, in September 2002, with a view to moving into one of the skills specific courses. She maintains that she applied for, and was initially offered a position on to a Digital Photography Course; however, the position failed to materialise and she was in effect refused access to the course. She also stated that she was refused entry on to an IT & Computer Maintenance Course on the basis that the College assumed that she was “too slow, inaccurate and unable to meet course deadlines”. She also claims that she attempted a course sample for a Business Administration course and never received any feedback on this test.

4.3 The complainant claims that the respondent failed to explore alternative arrangements with her, such as looking at the possibility of modifying equipment, for example, which would help facilitate her gaining access onto the skills specific courses of her choice. She maintained that the College assumed that she would not benefit from assistive technology or other forms of support, and accordingly, instead of providing assistance to her, she was actively discouraged by the respondent from attempting course samples. She claimed that the College made no effort to take into account her particular individual learning needs and did not provide the adequate resources and supports to facilitate her in successfully completing the course samples, which in turn, would have allowed her access onto the skills specific courses.

4.4 The argument was made that the College assessment criteria of course sampling discriminated against the complainant and generally any disabled person with mobility difficulties as the tests in some specific courses required a certain level of manual dexterity. The complainant claimed that the respondent failed to provide her with reasonable accommodation by not providing the appropriate aids such as the aid of a personal assistant in the course sampling tests which would have benefited her with parts of the test that required higher levels of mobility.

4.5 Finally, the complainant maintains that the respondent asked her to leave the College without any guidance and without any written notification after claiming that she did not meet their criteria.

5. Summary of the respondent’s case – Jurisdiction issues

5.1 The respondent raised a number of issues, both in its written submission and at the hearing regarding the substantive issue and the jurisdiction of the Tribunal to investigate the complaint which can be summarised as follows:

·        The respondent submitted that there is a legal impediment preventing this matter proceeding to full investigation and hearing, in that the complaint of Ms. Hendrick has not survived her death by reason of section 7 of the Civil Liability Act 1961. It submitted that the ‘complainant’ is specifically defined by the Equal Status Acts and as the legislation does not make provision for the survival of a complaint upon their death, the case cannot proceed and the Tribunal has no jurisdiction to hear and consider same. 

·        The respondent submitted that there is an impediment in the taking of direct evidence from the complainant’s side, as the complainant is unable to provide direct oral evidence to the Tribunal. Also, the respondent is placed at a considerable disadvantage as the complainant’s written submissions and other evidence arising during the course of the hearing cannot be tested as part of the hearing process, therefore preventing a fair hearing.

·        The respondent submitted that there is an issue in relation to the determination and the nature of any redress that the Tribunal can make in the circumstances of finding in favour of the complainant.

6. Summary of the respondent’s case – Substantive issues

6.1 The respondent stated that the College provides educational and vocational training courses for people with disabilities and that the whole ethos of the College is one of mutual co-operation with students so as to successfully help them meet their training needs. The courses are provided to assist people with disabilities with a view to future employment or to further education. The College maintains that they operate an adult educational model where the students take personal responsibility for their own educational paths and identify their requirements and the necessary supports for progression in the College. It is the responsibility of each student to identify their needs and to make them known at the initial entrance interview, so to allow for a joint effort between the student and college to address any specific requirements.

6.2 The respondent uses a course sampling methodology to assess student’s suitability for a preferred course choice. It said that not all colleges in the National Learning Network used the same assessment methodology at the time; however, it maintains that it is recognised as a good practice model, where more and more colleges are now using it for student assessment. The respondent claims that course sampling gives the students the opportunity to experience practical aspects of the course before they go on to actually take the course itself. Also, it gives the course tutors a practical assessment of the candidates’ capabilities at an early stage.

6.3 The respondent maintains that at the initial interview the complainant was informed that acceptance into the College at the foundation level was not in itself an offer on to any skill specific course, and that she would have to complete a course sample to get into the skills specific course of her choice. The respondent claims that the complainant never identified any specific requirements or highlighted any additional supports or assistance that she would or may require in her educational path. The respondent was aware of the complainant’s recent attendance and success at a sister college in the National Learning Network and therefore she was familiar with an adult college environment, particularly as she was known to some of the College staff who had worked with her in NLN Swords and recognised her as a very confident, determined and independent person.

6.4 The respondent maintains that the College tutors would often discuss the various course options and choices available to students at the foundation level. It claims that it too discussed the complainant’s options with her and that each and every course sample requested by the complainant was made available for her to take. It claims that it did not actively discourage the complainant from taking various courses and that all courses were discussed with the complainant as per normal with all students.

6.5 The respondent stated that every year it receives a higher number of applications than there are places available. It was unable to provide exact details of the number of applicants for the period but it states that it receives in the region of 1000 plus applications per year where 500 to 600 hundred people would then be interviewed for some 250 to 280 college places. The respondent stated that the Digital Photography Course is one of the most popular courses in the College and it attracts somewhere between 100 to 150 applications per year whereas, only 20 (circa) applicants would pass the course sample. The respondent maintains that one third (circa) of all applicants that take the course sample in the IT Maintenance & Computer course would fail the assessment. The entry standard for this course is set high, as this particular course is a FETAC[2] level 6 graded course, whereas most of the other courses offered by the college are FETAC level 5, therefore the standard required is very high.

6.6 The respondent maintains that the complainant was given an opportunity to take the three course samples that she had identified and requested. It claims that;

·        In relation to the Digital photography course, that the assessment concentrated on the various skills required for the course including the inherent creativity of the students. The complainant failed the course sample and it was the professional opinion of the course tutor that the complainant did not have the overall skills-set to successfully take on the course and no additional assistance, including the help of a Personal Assistant would be of benefit to her in this situation.

·        In relation to the IT and Computer Maintenance course, the course sample was divided into three parts, including a test of the students manual dexterity to work with the physical computer hardware, inter alia, the physical lifting and moving of computers and computer components. The complainant was facilitated to take part in the “ability to use a PC” test, however was not successful in the requirements here. It was the course tutors professional opinion that based on all the presenting factors, including her performance in the course sample, and following an interview with the complainant, that she would have difficulty with the course. He also felt that there was no additional assistance that he could prescribe to facilitate her, including the use of a personal assistant, as the practical parts of the course were an integral part of the whole course learning experience.

·        In relation to the course sample in the Business Studies (administration) course, the respondent produced a copy of a letter from the College’s Business Studies Department dated the 9^th April 2004 addressed to the complainant informing her that she was unsuccessful in her attempt at the course sample. The letter also offered some additional help and information on other courses available and invited the complainant to contact the department if she wished.

6.7 The respondent refused to accept that it made no effort to help the complainant or that it failed to provide reasonable accommodation. It referred to the following points,

·        The respondent maintains that it was they who identified specific IT equipment and aids that might be of assistance in the development of the complainant’s IT skills. These items were provided for the complainant to practice to help develop her computer skills.

·        It claims that it sought to modify the Digital Photography course to allow the complainant work on one/two modules of the course, that were of interest to her, in an attempt to provide her with an opportunity to work on and develop those skills.

·        It claims that it allowed the complainant stay in the College over the maximum time allocated for the student. It extended the period of time to allow her explore further educational options with the assistance of the tutors at the foundation level.

·        It claims that it is an adult learning College, where it tends to carry out business directly with the students. However, the College on her request agreed to meet with the complainant’s parents on two occasions in an effort to assist the complainant.

·        It also maintains that the final months of the complainant’s time at the College was spent helping her to prepare for leaving the College. She had been informed that her time in the College was coming to an end and it assisted her to explore other educational options that might better suit her skill-set.

7. Conclusions of the Equality Officer in relation to the issue of jurisdiction following the death of the complainant

7.1 I will first consider the jurisdictional issues 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.  The respondent has submitted that the present complaint has not survived the death of the complainant, and therefore, the Tribunal does not have jurisdiction to investigate and hear the complaint.  In considering this issue, I have taken cognisance of a recently published decision of this Tribunal in DEC-S2009-0004 - Hegarty (deceased) -v- Area Development Management Ltdwhere the Equality Officer had to decide whether a complaint brought under the Equal Status Acts 2000 – 2008 is governed by the provisions of the Civil Liability Act 1961, in circumstances where the complainant has died before the investigation has been completed.

7.2 In considering this issue, the Equality Officer considered a UK decision, Harris –v- Lewisham & Guy’s Mental Hospital Health NHS Trust [2000] 3 ALL ER 769, in which the Court of Appeal in England overturned the Employment Appeal Tribunal’s ruling that a race discrimination claim taken under the Race Relations Act, 1976 does not survive the death of the Applicant.  In this judgment the Court of Appeal had occasion to refer to the English equivalent of section 7 of the Civil Liability Act, 1961, namely section 1(1) of the Law Reform (Miscellaneous Provisions) Act, 1934. The Equality Officer, having considered the case, was satisfied that an action or complaint of discrimination brought under the provisions of the Equal Status Acts constitutes a ‘cause of action’ on behalf of the complainant within the meaning of section 7 of the Civil Liability Act, 1961.  The Equality Officer noted the comments of Mummery LJ. in the Harris[3] case at paragraph 7 where it was held that, “There is no provision in the 1976 Act precluding a complaint of the kind made by Mrs. Andrews from being a cause of action or from devolving on her estate.  The NHS Trust relied on section 53(1) which restricts proceedings for breach of the 1976 Act to those provided by the Act.  That subsection does not exclude or disapply the provisions of the 1934 Act […] The death of Mrs. Andrews does not mean that they have ceased to be proceedings under the 1976 Act. Mrs. Harris, as personal representative, is entitled to continue the subsisting proceedings under that Act as a result of the vesting in the estate of the cause of action under that Act.”

7.3 The Equality Officer concluded that “Having regard to the foregoing, I am satisfied that there is no provision in the Equal Status Acts that precludes a complaint of the kind made by [the complainant] from being a cause of action or from devolving on his estate.  Furthermore, I am satisfied that the death of [the complainant] does not mean that his complaint of unlawful discrimination ceased to be proceedings under the Equal Status Acts.  In the circumstances, I find that the present complaint under the Equal Status Acts has survived the death of the complainant, […] and I am satisfied that Mrs. Hegarty  is entitled to continue to pursue the complaint in her capacity as the Executrix of his Estate.  Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the present complaint.” I have taken the abovementioned decision into consideration and I note that the issues raised are identical to those that are presented before me for consideration. Having considered the decision, I agree with the conclusions of the Equality Officer in the Hegarty (deceased) -v- Area Development Management Ltd case and as the issues are identical to the case before me for consideration, I am satisfied they also apply in this case. Accordingly, I find that the complaint survives the death of the complainant, Ms. Hendrick, for that of her estate and that the Tribunal does have jurisdiction to proceed with the investigation and hearing.

7.4 I will now deal the respondent’s claim that the passing of the complainant has presented a difficulty for the respondent receiving a fair hearing, as the complainant is not present to provide direct evidence to the Tribunal. I am satisfied that it has long been established that a Tribunal may deviate from the rules of evidence applicable to that of a court of law as part of its investigation, and it may act in an informal basis when circumstance impose upon it to proceed in that way. I refer to Kiely v The Minister for Social Welfare (No. 2) [1977] I.R. 276 were at 281 Henchy J. stated that “Tribunals exercising quasi judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like –but they may not act in such a way as to imperil a fair hearing or a fair result”, and also in Goodman v Hamilton [1992] 2 IR 542: Costello J. stated at 565: “There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures …………”.     Although I agree that the absence of the complainant to provide direct evidence added to the difficulty with the presentation of evidence and the testing of evidence thereafter. I am satisfied that it did not place the respondent’s case in any particular disadvantage as compared to the complainant’s case. Accordingly, I am satisfied that the process was not compromised to the effect that the absence of the complainant resulted in an unbalanced and unfair hearing, which could be conceived as to place the respondent at unfair disadvantage.

7.5 I will now consider the jurisdictional issues raised by the respondent in relation to the nature of any redress that the Tribunal can make in the circumstance of finding in favour of the complainant. At paragraph 7.3 above, I have found that having considered Sections 6 and 7 of the Civil Liability Act 1961, that the complaint survives the death of the complainant for the benefit of the estate. However, I note that Section 7(2) states that:

“Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness”(emphasis added)

Accordingly, I am satisfied that under Section 7(2) that the damages recoverable exclude exemplary damages including damages for any pain, suffering or a reduction in quality of life and happiness of the person for the benefit of that persons estate.

Section 27 of the Equal Status Acts 2000 to 2008 provides for the type of redress that the Director may provide following a decision in favour of the complainant. Section 27(1) states that:

“Subject to this section, the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a)        an order for compensation for the effects of the prohibited conduct concerned; or

(b)        an order that a person or persons specified in the order take a course of action which is so specified.”

Accordingly, I note that the provisions of Section 27(1) may include, but are not limited, to damages as set out in Section 7(2) of the Civil Liability Act. Accordingly, I find that the Tribunal does have jurisdiction to proceed with the investigation and hearing in the present case as there is an option to order different types of redress, should I find in favour of the complainant.

8. Conclusions of the Equality Officer in relation to the substantive issues

8.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant.  Section 38(A) of the Equal Status Acts, 2000 to 2004 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, written and oral, made to me by the parties to the case. 

8.2 Therefore, the question that I must decide upon is whether the respondent discriminated against the complainant on the disability ground within the meaning of Section 3(1)(a) and 3(2)(g) of the Equal Status Acts 2000- 2004. I must also consider whether the respondent failed to provide the complainant special measures and facilities to accommodate her needs in as a person with a disability within the meaning of Section 4(1) of the Acts.

Discriminatory Treatment

8.3 I am satisfied that the respondent is a College that provides educational courses for people with disabilities with a primary view of leading them to employment or, at least, to further education. It was presented to me at the hearing and I accept that the College has a limited budget and receives far more applications for courses than there are positions available. I note that it uses an aptitude type assessment to determine an applicant’s suitability for access onto the limited course positions. I am satisfied that the complainant had a meeting with the College when she started and there was no guarantee made to her that acceptance into the College at foundation level would automatically lead to acceptance on to a specific course. Therefore, I conclude that the complainant would have understood that she would have to be assessed for suitability into any of the skill specific courses and that there was no certainty of a place.

8.4 I am satisfied that the College’s Foundation level allows new students to become familiar with the College surroundings and it also gives the students and tutors time to discuss the various choices that are available and the various skills-set required. Having regard to the evidence adduced at the hearing I am satisfied that this is a consultative process. I am satisfied that the complainant outlined three different courses in which she was interested in pursuing, and I have not been presented with any evidence to show that she was actively discouraged from taking the course samples of her choice. I have been presented with evidence that the complainant was given an opportunity to attempt course samples in these subjects. I am satisfied that she did not perform well on these tests and consequently she was not offered a position in those courses as a result of her performance.

8.5 I am satisfied that the complainant was not subjected to less favourable treatment than another person in similar circumstances on the grounds of her disability in terms of the manner in which the responded treated her while she was a student at the College. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts 2000 - 2004.

Reasonable Accommodation

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

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

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

8.7 I note from the evidence presented that the respondent places the onus on the students to identify any additional requirements or supports they may need to succeed in the College. I am satisfied from the evidence adduced that the complainant was very independent and well capable of dealing with the College by herself. I was presented with her educational record and I conclude that she was familiar with the requirements for an adult college environment. I am satisfied from the evidence presented that the complainant failed to identify any additional assistance or requirements at the initial interview that would aid her in her education path through the College and I have not been presented with any evidence from which I could conclude that during her time at the College she subsequently identified and requested additional supports that would be of assistance to her. However, I am satisfied that while she was attending the College, at the Foundation level, the respondent’s staff proposed and provided her with assistive equipment with a view to improving her Information Technology skills and therefore, enhancing her chances in progression onto a skills specific course.

8.8 I am satisfied that the complainant was primarily interested in the Digital Photography Course and her failure to secure a place on this course appears to have been quite frustrating for her and I accept this may have resulted in some difficulty and a strain on her relationship with the respondent. I note from this point onward an obvious erosion of the communication lines and understanding between the parties. The evidence from the complainant suggests she was accepted onto and then subsequently refused access to the Digital Photography Course whereas, the respondent has produced evidence that she failed the course sample. The evidence adduced at the hearing suggest that the College attempted to offer her a modified version of the course if, and when, the course tutor could facilitate her, while in the interim, she worked on some basic elements of the course with the foundation level tutor. I am satisfied from the evidence adduced that acceptance onto this course is very difficult, as it receives far more applications than there are places. I note from the evidence adduced that the course tutor also uses the course sample to adjudge a student’s inherent creative talents. I am satisfied from the evidence presented to me at the hearing that the course tutor’s opinion was that the complainant did not possess the inherent skills for the course and that no level of additional support or assistance would have made a difference in this case.

8.9 I am satisfied that the complainant was given an opportunity to attempt a modified course sample in relation to her computer skills for the IT Computer & Maintenance course. I note she was not asked to perform the physical part of the test, including the movement and assembling of computer hardware. I am mindful that the course is graded at FETAC level 6 and a high proportion of students who have tried the course sample do not pass it. However, I note that she performed poorly in her computer skills assessment and it was the course tutors professional opinion, (of some 10 years working with people with disabilities on this course), that the complainant would have difficulties completing the course. It was presented to me that this decision was taken following a consideration of the complainant’s suitability for the course including a discussion that the course tutor had with the complainant about her course choice and finally her performance in the course sample. Again I am mindful that the course received many more applications than there are places available. I am satisfied that the course tutor’s decision not to offer the complainant a place on to the course was based on a number of factors following his professional assessment of what is the required level needed to take the course.

8.10 I am satisfied that the complainant was given an opportunity to attempt the Business Studies (administration) course sample. I note that the course sample was taken shortly before the complainant left the College and from the evidence presented I note the complainant performed poorly in the course sample attempted. I also note that the complainant’s upset in relation to this course related to the respondent’s failure to give any feedback on her performance on the course sample. However, the respondent produced a copy of a letter from the College’s Business Studies Department dated the 9^th April 2004, addressed to the complainant, informing her that she was unsuccessful in her attempt at the course sample. I also note that this letter also offered some additional help and information, which is consistent with the internal tutor’s report of the complainant’s performance in the course sample that was presented as evidence. I note that the College later refer to this letter in another correspondence to the complainant, dated 16 May 2004, where it stated that a copy of the letter and the results of the course sample were enclosed. Accordingly, I am satisfied that the College did attempt to contact the complainant and inform her of her performance in the course sample taken.

Final conclusions

8.11 Based on the evidence presented, I am satisfied that acceptance onto a skill specific course was not guaranteed when the complainant joined the College at the foundation level. I am satisfied that the complainant was aware that acceptance onto one of the courses requires discussions with the tutors and successfully taking an aptitude type assessment based on the relevant course material, all of which in turn are taken into account for the overall determination of who is offered the limited places available. I am satisfied that the complainant was aware of these requirements. I am also satisfied that she was given an opportunity to attempt three course samples of her choice, in which she did not perform sufficiently well to merit acceptance onto those courses. I am satisfied that the respondent attempted to provide support and assistance to the complainant during her time in Roslyn Park College. I am also satisfied that she was aware that her time in the College was limited and that other options outside of the College were being explored with her foundation level tutor in her last few months in the College.

8.12 Having regard to the foregoing I therefore find, for the aforementioned reasons, that the respondent did not fail in its obligations to do all that is reasonable to accommodate the needs of the complainant as a person with a disability in accordance with the provisions of Section 4 of the Acts.

9. Decision

9.1 I find that a prima facie case of discrimination has not been established by the complainants on the disability ground in terms of sections 3(1)(a) and 3(2)(g), and section 4(1) of the Equal Status Acts 2000 - 2004 and, accordingly, I find in favour of the respondent in the matter.

James Kelly

Equality Officer

27^th February 2009