THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2009-041
PARTIES
Mrs. A. (on behalf of her son, B)
and
A Childcare Facility
(Represented by P.J. O’Driscoll & Sons Solicitors)
File Reference: ES/2007/0072
Date of Issue: 29th June, 2009
Equal Status Act 2000-2008
Equality Officer Decision
DEC-S2009-041
Mrs. A (on behalf of her son, B)
-v-
A Childcare Facility
(Represented by P.J. O’Driscoll & Sons Solicitor)
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) – Family Status Ground, Section 3(2)(c) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Discrimination by an Educational Establishment, Section 7(2)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 17th July, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 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 10th June, 2009.
1. Dispute
1.1 Mrs. A claims that her son was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 7(2) of the Equal Status Acts, 2000 to 2008 on the basis of its refusal to enrol him in its childcare facility unless he was assisted on a full-time basis by a personal assistant. Mrs. A. also claims that the respondent has discriminated against her on the grounds of her family status in terms of Section 3(2)(c) of the Acts.
2. Summary of the Complainant’s Case
2.1 The complainant’s son has moderate Cerebral Palsy which affects him physically and as a result he is unable to walk without aids or to move about independently. However, intellectually he is on a par with other children his age. The complainant, Mrs. A, sought to secure a place for her son in the respondent’s crèche in March, 2007 when he was aged 20 months for three full days each week i.e. from the hours of 9:30 a.m. to 5:00 p.m. She spoke with the respondent on the telephone on two separate occasions and during the course of these conversations she provided information to the staff member regarding the nature of her son’s disability. Following these telephone conversations, the complainant visited the crèche with her son for a pre-arranged meeting at the premises on 23 March, 2007. On this occasion the complainant met with Ms. X, Crèche Manager, and she was provided with a comprehensive tour of the premises and its facilities. During the course of these discussions, Ms. X informed the complainant that a place would not be available for her son in the crèche until he was two years of age. Ms. X also informed the complainant that the respondent had recently adopted a policy whereby it could not accept a child with special needs into the crèche without a full-time personal assistant.
2.2 The complainant advised Ms. X that she had already been in contact with the Health Service Executive prior to this meeting and it was likely that her son would be provided with a personal assistant in order to assist him at the childcare facility for 5 hours per week. The complainant informed Ms. X that her son would not require a personal assistant on a full-time basis in order to attend the crèche; however, Ms. X responded that the crèche would not accept him for any hours where he did not have a personal assistant. The complainant stated that the Health Service Executive does not provide a full-time personal assistant for any child with her son’s specific needs and she submitted that the cost to her of funding a personal assistant for the additional hours, in addition to the crèche fees, would have been totally prohibitive. The complainant claims that the respondent failed to carry out any objective assessment or to seek an external professional assessment of her son’s specific needs when coming to the decision that he would require a full-time assistant in order to attend the crèche. It was submitted that the respondent is maintaining a “blanket” policy for children with special needs in terms of the requirement that it will only accept such a child with a full-time assistant regardless of the nature of the individual child’s needs. The complainant claimed that this policy is discriminatory and that it presents serious barriers to any child with special needs who may wish to attend the crèche. The complainant stated that her son was subsequently enrolled at another childcare facility which he attends for three full days each week and where he is assisted by a HSE funded personal assistant for 9 hours per week. She stated that her son is very happy in this crèche and that this childcare facility did not invoke any requirement that her son should be assisted on a full-time basis in order to attend.
3. Summary of the Respondent’s Case
3.1 The respondent’s crèche was established in October, 2006 and it catered for approx. 30 children at the time of the alleged incident of discrimination in March, 2007. The respondent stated that it caters for all children, including those with additional and special needs, and it works in close partnership with parents, special needs assistants and professional organisations to ensure that these children are fully integrated into the life of the crèche. The respondent submitted that it accepts children on the basis of availability in the crèche and the ability to meet each child’s requirements while ensuring compliance with its statutory obligations under the Child Care Act, 1991 and Child Care (Pre-School Services) Regulations, 1996 (as amended). These Regulations set down the staff to child ratio requirements to ensure that an appropriate level of care is provided to all children in a childcare facility which at the time of the alleged incident of discrimination were as follows:
Under 12 months – 1:3
1 to 2 year olds – 1:6
2 to 3 year olds – 1:6
The respondent submitted that a childcare facility must also take into consideration each individual child’s needs and if a child has additional needs, the childcare unit must satisfy itself that the above ratios do not leave any child with less than the appropriate level of care required. Where one child requires extra attention, it is not sufficient to maintain the above ratios as all other children in the room would not receive the appropriate care.
3.2 The respondent accepts that the complainant sought a place for her son in its crèche in March, 2007 and she informed the Crèche Manager, Ms. X, that he had Cerebral Palsy and was physically (but not intellectually) affected by this disability. The respondent stated that it was not in a position to offer a place in the crèche to the complainant’s son until he turned two years of age as there were already three children with Special Needs in the one to two year old room and it was operating to its full capacity within that age group at that juncture. The respondent offered the complainant’s son a place at the crèche in the two to three year old room in July, 2007 when he would have turned two years of age; however, having considered the nature of his special needs and the number of children currently in the crèche at that time (including those with Special Needs), it was felt that the complainant’s son would require a full time assistant to allow him to obtain the maximum benefit from attending the crèche. The respondent was also mindful that the children with Special Needs who were attending the crèche in the one to two year old room at that juncture would be moving into the two to three year old room in or around the time that the complainant’s son would turn two years of age. The respondent submitted that if it had accepted the complainant’s son without any additional support staff it would have not have been in a position to provide the required level of care to all children of the other within that group.
3.3 The respondent submitted that it was not the duty of the crèche to have an independent assessment carried out of the complainant’s son’s special needs prior to agreeing or refusing to accept him in the crèche and it claims that the complainant was best placed to provide an assessment of her son’s special needs. The respondent accepted the complainant’s assessment of her son’s disability and having regard to the fact that he was not able to physically move on his own without assistance, it concluded that it was reasonable to require that he have a full-time personal assistant assigned to him while attending at the childcare facility, as the crèche was not in a position to provide one to one assistance. The respondent submitted that it would have been necessary to employ an additional staff member if it was to be in a position to provide the appropriate level of care to the complainant’s son and the other children that would have been in that group. The respondent claims that the cost of employing another member of staff in order to accommodate the complainant’s son would have amounted to more than a nominal cost within the meaning of Section 4 of the Equal Status Acts. The respondent totally denies that it has discriminated against either the complainant on the grounds of her family status or against her son on the grounds of his disability.
4. Conclusions of the Equality Officer
4.1 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.
Disability Ground
4.2 In the present case, the complainant’s son has Cerebral Palsy and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. I am satisfied that the respondent’s childcare facility i.e. being a pre-school service within the meaning of Part VII of the Child Care Act, 1991 is an “educational establishment” within the meaning of section 7(1) of the Equal Status Acts. It is clearly stated within the provisions of section 7(2) of the Equal Status Acts that an educational establishment shall not discriminate in relation to the admission or the terms or conditions of admission of a person as a student to the establishment. Therefore, the question that I must decide in the present case is whether or not the complainant’s son was subjected to discrimination on the grounds of his disability within the meaning of section 7(2) of the Equal Status Acts in terms of the conditions which the respondent sought to impose upon his admission to its childcare facility.
4.3 In considering this issue, I have taken note of the Child Care Act, 1991 (as amended) and the Child Care (Pre-School Services) Regulations, 2006 which make legislative provision for the operation of childcare facilities, such as the respondent’s crèche, and this legislation clearly places an obligation on the service provider to take all reasonable measures to safeguard the health, safety and welfare of the children attending the service (section 52 of the Child Care Act refers). It is clear that any failure by a service provider such as the respondent to adhere to its obligations in this regard could have very serious consequences both for the service provider in question and the children under its care. I have noted that Mrs. A disputed the respondent’s contention that her son required a full-time assistant in order to attend the crèche and she claims that the respondent came to this conclusion in the absence of any objective or independent assessment of her son’s specific needs. I am satisfied that there was no obligation on the respondent under the Child Care Act to have an independent assessment carried out of the complainant’s son’s special needs prior to making a decision as to whether he would be granted a place in its crèche. I am of the view that the Mrs. A was in the best position to provide such an assessment of her son’s special needs. I accept the respondent’s evidence that it came to the conclusion that the complainant’s son would require the assistance of a personal assistant on a full-time basis having taken into consideration both Mrs. A’s own assessment of her son’s disability and its existing obligations to provide the required level of care for the children already enrolled in the crèche. In the circumstances, I find that the respondent was not acting in an unreasonable manner in arriving at this conclusion but rather it was attempting to ensure that it would be in a position to comply with its obligations under the Child Care legislation to provide the required level of care to all of the children under its care.
4.4 In order to decide whether the complainant’s son was subjected to discrimination on the grounds of his disability in terms of the condition which the respondent sought to impose upon his admission to its crèche i.e. the requirement that he be assisted by a personal assistant on a full-time basis, I have taken cognisance of the provisions of section 7(4)(b) of the Equal Status Acts which states:
“7(4) Subsection (2) does not apply -
(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously
detrimental effect on, the provision by an educational establishment of its services to
other students”
I am of the view that the respondent can only rely upon this exemption if it can demonstrate that the admission of the complainant’s son to the crèche without the assistance of a personal assistant on a full-time basis would have made it impossible or have had a seriously detrimental effect on its ability to provide the required level of care to the children that were already enrolled at the crèche.
4.5 In that context, I am of the view that there was an obligation upon the respondent, when deciding whether or not to grant a place in the crèche to the complainant’s son, to ensure that it would have adequate staffing resources and facilities in place to fully cater for his special needs without compromising the level of care and attention available to the other children already in its care. Based on the evidence presented, I am satisfied that the respondent was operating to its full capacity in July, 2007 in terms of the staff to child ratios (within the aged two to three years group) that it was obliged to adhere to under the Child Care legislation. I have also taken into consideration the respondent’s evidence that the three children with Special Needs who were already attending in the one to two years age group were due to move into the two to three years age group around the time that the complainant’s son turned two (in July, 2007). In the circumstances, I am satisfied that it is reasonable to conclude that if the respondent had admitted the complainant’s son without the assistance of a personal assistant on a full-time basis that this would have placed excessive pressure on the staffing resources available to it at that juncture with the result that it would not have been in a position to provide the required level of care and the standard of service that it was obliged to provide to the other children that were already under its care. Having regard to the provisions of Section 7(4)(b) of the Equal Status Acts, I find that the respondent did not subject the complainant’s son to discrimination in the present case in terms of its requirement that he be assisted on a full-time basis by a personal assistant in order to be granted a place in its crèche. I therefore cannot accept the complainant’s contention that the respondent was operating in a discriminatory manner in terms of its policy regarding the admission of children with Special Needs to its crèche. Based on the evidence presented, I am satisfied that the respondent was operating an inclusive policy for all children irrespective of whether the child was disabled or not and this is evidenced by the fact that it was already providing care for a number of children with Special Needs when the complainant sought to enrol her son in the crèche.
Reasonable Accommodation
4.6 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 Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question …”.
Therefore, the question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant’s son, as a person with a disability, by providing special treatment or facilities. In considering this issue, I note the respondent claimed that it could only provide a place for the complainant’s son in its crèche subject to the condition that he would be assisted on a full-time basis by a personal assistant. I am therefore satisfied that the special facilities which the respondent would have had to provide in order to facilitate the complainant’s son’s attendance at its crèche would have amounted to the provision of an additional member of staff i.e. a personal assistant to provide assistance for him whilst he attended the facility.
4.7 In considering this issue, I note that the complainant, Mrs. A had already been in contact with the Health Service Executive prior to her initial meeting with the respondent and she had informed it of the likelihood that her son would be provided with a personal assistant in order to assist him at the childcare facility for 5 hours per week. I am also mindful of the fact that the Mrs. A sought to have her son enrolled in the crèche for three full days each week and consequently, there would still have been a substantial shortfall between the number of hours which would have been covered by the HSE funded personal assistant and the additional hours that would have to be covered by the respondent. Section 4 of the Acts also provides that where the provision of special treatment or facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. In considering the issue of nominal cost, I am of the view that the cost of providing another member of staff in an organisation of that size would have amounted to more than a nominal cost. In the circumstances, I am satisfied that the cost of providing the special facilities which the complainant’s son required would have amounted to more than a nominal cost within the meaning of section 4 of the Equal Status Acts. Having regard to the foregoing, I find that the respondent did not fail in its obligation under Section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.
Family Status Ground
4.8 The complainant also claims that she was discriminated against by the respondent on the family status ground. Section 2(1) of the Equal Status Acts defines family status, inter alia, as meaning:
“family status means being pregnant or having responsibility –
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, …”
In the present case, the complainant is the parent of a child under the age of 18 years who sought to have her child enrolled at the respondent’s crèche and I am therefore satisfied that the family status ground is applicable to her in this case. Having regard to the fact that the alleged discrimination in the present case relates to access to a childcare facility, it is clear that all of the other parents/guardians who availed of or wished to avail of this service would have the same family status as the complainant i.e. they would also be the parent/guardian of a child under the age of 18 years. I am satisfied that the reason the respondent insisted upon the requirement for the complainant’s son to be assisted by a personal assistant on a full-time basis in order to attend its crèche was related to the special needs that arose because of his disability and that it was not in any way attributable to her family status. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(c), 3(2)(g) and 4(1) of the Equal Status Acts.
Enda Murphy
Equality Officer
29th June, 2009