DEC-S2009-016 - Full Case Report

EQUAL STATUS ACTS 2000-2008

Decision No   DEC-S2009-016

PARTIES

Ms Anastasia Lyamina

and

The Department of Education and Science

(represented by the Chief State Solicitor’s Office)

File Reference: ES/2007/070

Date of Issue:  6 March 2009

TABLE OF CONTENTS

Page 3                  Summary

Page 4                  Keywords and Delegation

Page 5                  Complainants Case

Page 7                  Respondents case

Page 14                Report of Hearing

Page 16                Conclusions of the Equality Officer

Page 26                Decision     

Equal Status Acts 2000 - 2008

Summary of Decision DEC-S2009-016

Anastasia Lyamina

V

Department of Education and Science

(represented by the Chief State Solicitor’s Office)

This dispute concerns a complaint by Anastasia Lyamina alleging that the Department of Education and Science failed to provide for her continuing education through English while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground.

At the Hearing, the respondents argued that the Department of Education and Science was not a “service provider” as defined by the Equal Status Acts. They claimed that the Department was not a provider of education but rather that its role was to “provide for education”. They also argued that, in bringing her claim against the Department of Education and Science, that the complainant has not pursued the correct respondent.  The respondents submitted that the appropriate respondent to this claim was the Board of Management of Pobalscoil Chorca Dhuibhne.

Having considered the arguments put forward by the respondents, the Equality Officer formed the opinion that the Department of Education and Science did fall into the category of a provider of a “service” as defined in the Equal Status Acts 2000 – 2008. However, having deliberated at length on the evidence before him, the Equality Officer found that the complainant had failed to identify the correct respondent and that the Department of Education and Science had not discriminated either directly or indirectly against the complainant.

.

Equal Status Acts 2000 - 2008

Decision DEC-S2009-016

Anastasia Lyamina

V

Department of Education and Science

(represented by the Chief State Solicitor’s Office)

Key words

Equal Status Acts 2000 - 2008  -   Direct discrimination, section 3(1)(a)   -    Indirect discrimination, section 3(1)(c)  -  Race ground, section 3(2)(h)   -  Supply of goods and services, section 5(1)   -   Failure to provide for the continuing education of a non-Irish student living in a Gaeltacht area

1          Delegation under the Equal Status Acts

This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on 10 July 2007.  In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, 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 – 2007. I commenced my investigation on the 18 September 2007 and, as required by Section 25(1), as part of my investigation held the hearing on 14 May 2008.

2          Progress of Investigation

On 18 September 2007, the complainant was requested to submit a detailed submission outlining the full background and circumstances of the complaint. This submission was received in early December 2007 and forwarded to the respondents on 7 December 2007 requesting that they submit a detailed counter-submission by 31 January 2008. The respondents’ counter-submission was only received at 7 pm on the evening prior to the Hearing. As a result, the complainant only received a copy an hour before the Hearing started on 14 May 2008.

The Hearing of the complaint proceeded as scheduled on 14 May 2008 with further correspondence between the parties and the Tribunal continuing until 23 January 2009.

3          Summary of Claim

This dispute concerns a complaint by Anastasia Lyamina against the Department of Education and Science alleging that the Department failed to provide for her continuing education through English while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground. The claim was notified to the respondents on 2 June 2007.

4          Summary of Complainant’s Case

4.1       The complainant moved to Annascaul, Co Kerry from Russia in 2005 with her mother. She was 13 years of age at the time. In February 2005 she enrolled in Meánscoil na Toirbhirte and was due to complete her Leaving Certificate there in 2010.  While Meánscoil na Toirbhite was classified as an A1 Lán-Gaeilge school in a Gaeltacht area, the Complainant nonetheless received tuition in all subjects except Business Studies through English up to Junior Certificate level with the help of teachers in the school who conducted their classes through the medium of both Irish and English to facilitate non-Irish students and those with a poor standard of Irish.

In 2005, Anastasia had been exempted by Meánscoil na Toirbhirte from studying the Irish language pursuant to the provisions of Circular Letter M10/94 issued by the Department of Education and Science. In 2007, she sat her Junior Cert Examination through English and successfully passed all 10 subjects undertaken (achieving honours in 4 Honours papers).

4.2       At the end of the school year 2006-2007, Meánscoil na Toirbhirte amalgamated with Scoil na mBráithre Chríostaí, to form the new Pobalscoil Chorca Dhuibhne.  Prior to amalgamation, Meánscoil na Toirbhirte and Scoil na mBráithre Chríostaí were designated as A1 all-Irish schools and, on amalgamation, the new school was also recognised by the Department of Education and Science as an A1 school. On amalgamation, however, the Trustees and Board of Management of the new school made a decision to implement a more stringent Irish language policy requiring teachers to conduct all classes strictly through the medium of Irish.

On learning of the new school’s strict All-Irish policy, the complainant’s step-father John Ferriter immediately became concerned about Anastasia’s future education believing that it would be seriously affected in light of the fact that she had never before studied the Irish language, but would now be receiving instruction for her Leaving Certificate through that language only. 

When Mr Ferriter approached the principal of Pobalscoil Chorca Dhuibhne on his daughter’s behalf, the school responded by stating, inter alia, that as a Gaeltacht school the language of Pobalscoil Chorca Dhuibhne was Irish, and, while additional support would be made available to students to assist them in acquiring the language, this could not be done by the provision of an English language ‘stream’, as same would not be consistent with the character or the statutory duty of the school. The Principal explained to Mr Ferriter that this additional support would involve Anastasia and other non-Irish speaking students receiving an intensive 4 day crash course in the Irish language prior to the beginning of the new school year.

As his daughter was still only learning the English language, Mr Ferriter considered that this offer was a wholly inappropriate response to the accommodation of non-Irish speaking students and, as no other viable alternative was available in the Dingle peninsula, he reluctantly enrolled his daughter in the Presentation Convent, Tralee, 25 miles away.

4.3       In support of his claim that the Department of Education discriminated against his daughter, Mr Ferriter makes the following points:

Ÿ    Anastasia has been denied a right to an education to which she is entitled to. The Department of Education and Science has discriminated against her by not providing for appropriate education through English in the Dingle peninsula for the complainant and other non-Irish speaking students.

Ÿ    The Department has not reviewed its policies to take account of the increasing diversity in Irish society, in particular the contradictory policies whereby non-Irish students like Anastasia are given exemptions from Irish as a subject but the only schools in their catchment areas are all-Irish schools.

Ÿ    Mr Ferriter maintains that Anastasia has also suffered indirect discrimination at the hands of the Department by virtue of its policy of locating all-Irish schools in Gaeltacht areas and its decision to approve the amalgamation of the two local Dingle schools without any consideration of the future needs of non-Irish speaking pupils.

Ÿ    When approving the amalgamation of the two schools, Mr Ferriter maintains that the Department took no account of the needs of his daughter and other non-Irish students resulting in them suffering indirect discrimination on the grounds of their race and national origin.

Ÿ    Both Meánscoil na Toirbhirte and Scoil na mBráithre Chríostaí provided instruction for many years in English yet received Higher Capitation Grants for all students from the Department of Education and Science without question, regardless of their ability to speak Irish.

5          Summary of Respondent’s Case

5.1       At the Hearing, the respondents argued that the Department of Education and Science was not a “service provider” as defined by the Equal Status Acts. They claimed that the Department was not a provider of education but rather that its role was to “provide for education”. They also argued that, in bringing her claim against the Department of Education and Science, that the complainant has not pursued the correct respondent.  The respondents submit that the appropriate respondent to this claim is the Board of Management of Pobalscoil Chorca Dhuibhne and that the Department has no case to answer in respect of the complainant’s complaint of discrimination therein.

5.2       In support of their case, the respondents make the following points:

1.                 Section 7 of the Equal Status Acts 2000-2008, which deals with discrimination by an “educational establishment”, defines an  “educational establishment” as “a preschool service within the meaning of Part VII of the Child Care Act 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds”.

2.                 Section 7 provides, inter alia, that;-

“(2) An educational establishment shall not discriminate in relation to—

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student.”

3.                 By definition, the Department is not and cannot be regarded as “an educational establishment”, and does not fall within the definition of same which is provided by Section 7(1) of the Act and set out above.  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 2000-2008.

4.                While the Minister for Education and Science carries out certain functions assigned to him/her by virtue of the provisions of, inter alia, Section 7 of the Education Act 1998, those functions relate only to providing for education rather than providing education itself.  The Minister is obliged, inter alia, to provide funding for schools, to monitor and assess the quality of the education system provided by schools, to lease land or buildings to any person for the purpose of establishing a school and to provide support services through Irish to recognised schools which provide teaching through Irish.  However, the Minister is not obliged to run or manage schools themselves and, indeed, has no power to do so.  Such functions fall to be fulfilled by the Board of Management of a school (see below).

5.                 In carrying out his/her aforementioned functions, Section 7(4)(a)(iv) of the Education Act 1998 provides that the Minister must have regard, inter alia, to “the practices and traditions relating to the organisation of schools or groups of schools and the right of schools to manage their own affairs in accordance with the Education Act and any charters, deeds, articles of management or other such instruments relating to their establishment or operation”.

6.                 As is clear from the foregoing provision, the right of schools to manage their own affairs in accordance with the Education Act and any relevant charters or deeds is expressly recognised by Statute.

7.                 In the current context, Pobalscoil Chorca Dhuibhne is managed by its Board of Management, which, pursuant to the provisions of Section 14 of the Education Act 1998, has been appointed by the Patrons of the school.  It is of considerable importance to note that pursuant to the said Section, the Board of Management is obliged to fulfil in respect of the school the functions assigned to the school by the Act.  The functions in question are set out in Section 9 of the Act, the provisions of which the respondents say are worth setting out in full:-

“A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to-

(a)   ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for,

(b)  ensure that the education provided by it meets the requirements of education policy as determined from time to time by the Minister including requirements as to the provision of a curriculum as prescribed by the Minister in accordance with section 30,

(c)   ensure that students have access to appropriate guidance to assist them in their educational and career choices,

(d)  promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school,

(e)   promote equality of opportunity for both male and female students and staff of the school,

(f)   promote the development of the Irish language and traditions, Irish literature, the arts and other cultural matters,

(g)  ensure that parents of a student, or in the case of a student who has reached the age of 18 years, the student, have access in the prescribed manner to records kept by that school relating to the progress of that student in his or her education

(h)  in the case of schools located in a Gaeltacht area, contribute to the maintenance of Irish as the primary community language,

(i)    conduct its activities in compliance with any regulations made from time to time by the Minister under section 33,

(j)    ensure that the needs of personnel involved in management functions and staff development needs generally in the school are identified and provided for,

(k)  establish and maintain systems whereby the efficiency and effectiveness of its operations can be assessed, including the quality and effectiveness of teaching in the school and the attainment levels and academic standards of students,

(l)    establish or maintain contacts with other schools and at other appropriate levels throughout the community served by the school, and

(m) subject to this Act and in particular section 15 (2) (d), establish and maintain an admissions policy which provides for maximum accessibility to the school.”

8.                 It is not the Department nor the Minister, who fulfils the many functions of a school detailed above, but rather it is the Board of Management of the school that does so.  The respondents submit that if it had been the intention of the legislature to provide that this Respondent should fulfil in respect of schools the functions assigned to them by the Education Act, it would specifically have provided for same.  Instead, they claim that the Act makes it entirely plain that it is the Board of Management of a school which is obliged to fulfil the functions in question, and indeed has a specific and recognised right to manage its own affairs in so doing.

9.                 A further express statement of the position in this regard can be found in Section 15 of the Education Act 1998 which provides that “it shall be the duty of a Board to manage the school on behalf of the Patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate education for each student at the school for which that Board has responsibility”.  Section 15 goes on to provide that a Board shall perform the functions conferred on it and on a school by the Act, which, as is clear from the functions set out at paragraph 13 above, would obviously include matters such the language policy to be implemented in a school, particularly in circumstances where schools in Gaeltacht areas are specifically mandated to contribute to the maintenance of Irish as the primary community language.

10.             It is also of particular importance to note that pursuant to Section 14(2) of the Education Act 1998, each such Board of Management “shall be a body corporate with perpetual succession and power to sue and may be sued in its corporate name”.  This Section clearly envisages that where any action is contemplated either by or against a school, the proper party to any such proceedings involving the school is the Board of Management.  In light of that fact, as well as the other matters set out herein, it is submitted that the Complainant’s action against the Respondent is entirely misconceived.

11.             It is submitted that, in light of the foregoing descriptions of the functions of both the Minister for Education and Science and of Boards of Management, it is entirely clear that responsibility for the management and running of Pobalscoil Chorca Dhuibhne falls squarely on the Board of Management of the school and not on the Minister or the Department for Education and Science.

12.             Clearly, the Respondent herein is not the school or educational establishment which is alleged to have discriminated against the Complainant, and neither does it manage or run the school in question.  Insofar as the Complainant may have any case in relation to any discrimination alleged to have been suffered by her with regard to her access to an educational institution, namely Pobalscoil Chorca Dhuibhne, such claim should be directed to the Board of Management of the said school, as it is the actions of the school which have caused the situation giving rise to the Complainant’s complaint, and not any actions on the part of this Respondent.

5.3       Powers of the Respondent vis-à-vis the Board of Management

The Respondents argue that it does not manage the school in question - nor indeed does it manage any other school - and neither does it have the power or authority so to do.  Furthermore, the Education Act 1998 does not give the Respondent or the Minister the power or authority to compel the school to change its teaching policies, or to implement different policies to those which it has chosen to implement in accordance with its obligations under the Education Act.  While the Department of Education and Science can engage in consultation with a school, and can seek to encourage a school to make accommodation for particular students, it does not have the power or authority to force a school to do so.  The authority of a school to decide on its own policies and methods of management is clearly set out in the Education Act and has already been referred to in detail above.  A school is entitled to decide on its own policies in accordance with the Act, and if such policies potentially discriminate  against any student in particular, it is a matter for the Board of Management to deal with and defend any complaint made in respect of same.

In light of the claim being brought by the Complainant against the Respondent herein, the respondent argues that it is not responsible for the decision to implement the Irish language policy of the school.

5.4       Jurisdiction of the Equality Tribunal in relation to the complainant’s claim

The respondent argues that, insofar as the Complainant contends in the submissions made on her behalf that “if the Department does not do the sensible and economic thing and run both an Irish and English stream through the new school, then the Minister must look at the possibility of providing a new school outside of the Gaeltacht” (Page 10, Paragraph 3 of the Complainant’s submissions), the Respondent submits that such an issue falls entirely outside of the claim to be determined herein by the Equality Tribunal.

The respondent states that, if the Complainant wishes to make the case that the Minister for Education and Science has failed in her duty to provide for an appropriate education for the Complainant in the area in which she lives (such a claim being strenuously denied by the Minister), then the Complainant is bringing her claim in the wrong forum entirely, as such a claim must be brought before the Courts in plenary proceedings.  The Equality Tribunal has no jurisdiction whatsoever to make any decisions, orders or findings in respect of such a claim.  The respondent maintains that the only matter before the Equality Tribunal is the question as to whether the Complainant has been discriminated against in accessing an educational establishment and, in that regard; the Respondent submits that it is not the appropriate Respondent in all the circumstances, as has been set out elsewhere herein.

6          Report of Hearing 14 May 2008

6.1       At the Hearing on 14 May 2008, the complainant’s stepfather, John Ferriter, described how Anastasia’s level of English was very poor when she arrived in Ireland in 2005 and how she had worked to improve her English over the past few years with the assistance of teachers in her school.

Anastasia had no understanding of Irish whatsoever and had been given an exemption from studying Irish because of her nationality. She was taught through English in all subjects except Business by the teachers in Meánscoil na Toirbhirte and successfully  sat all her Junior cert exams through English in 2007.

When it was announced that the new school would be strictly an All-Irish school, Anastasia was left with no option but to look elsewhere and ended up enrolling in the Presentation Convent Tralee.

6.2       At the Hearing on 14 May 2008, the Department of Education and Science was asked for some background information on how Lán Gaeilge schools operated the grants they received and the level of departmental monitoring that occurred.

On being asked for some background on all-Irish speaking schools and the general advantages to a school of being designated as an All Irish speaking school, the respondents explained that such schools received an additional 40% capitation for each of its pupils plus an additional teacher. There are over 100 designated Lán Gaeilge schools in Ireland.

When asked whether such a school was required to ensure that all classes are taught exclusively through Irish, the Department said that this was a matter for the school itself but that the Department would expect there would be some flexibility with regard to certain subjects where some element of English would be used. The Department does not, however, carry out any direct monitoring with regard to the manner in which subjects are taught in Irish speaking schools

6.3       The Department was not aware of any Lán Gaeilge school in the country having been penalised in the past 20 years for teaching subjects entirely through English or partly through English.

The Department was not aware that Anastasia's old school Meánscoil na Toirbithe had been teaching some non-Irish students through the medium of English in most subjects. The Department had not envisaged that this would happen in an A1 Level Irish school and accepted that such behaviour could have implications for the payment of higher capitation grants

Students who answer in Irish at the written examination in certain subjects may be given up to 10% in bonus marks in addition to the marks gained in the subject.

There is no requirement on students from All Irish schools to take the Irish version of the Leaving Cert and Junior Cert exams papers. On the day of the exam, candidates have the option of answering either in Irish or in English and are supplied with whichever version of the examination paper they choose.

6.4       The State Examinations Commission has complete responsibility for overseeing the Junior and Leaving Cert examinations and for supplying students with whichever language paper they choose to answer. Accordingly, the Department has no means of recording how many students country wide sat the Irish version of specific subject papers

When asked if there was any way of finding out how many Irish language pupils in Dingle took the English version of particular papers in 2007, the Department explained that these statistics were not available. (According to the State Examinations Board, individual markers award the bonus marks when correcting papers and only release the total marks obtained to the Board. Markers are not required to record the number of Irish language papers they have marked.)

6.5       The respondents stated that the Gaeltacht catchment area of the new Pobalscoil Chorca Dhuibhne covers 70% of the Dingle peninsula. The only non-Irish school in the peninsula was in Castlegregory but this would require two daily trips over the Conor Pass and accordingly could not be regarded as a viable option for Anastasia

At the end of the 2006/2007 school year, prior to amalgamation, the Department reported that 229 students were attending Meánscoil na Toirbhithe and a further 255 were attending the local Scoil na mBráithre Chríostaí. A total of 469 students enrolled in the new Pobalscoil Chorca Dhuibhne for the 2007/2008 year of which at least 12 were born outside Ireland

7          Conclusions of the Equality Officer

7.1       Jurisdiction to hear complaint

In considering the respondent’s claim that the Equality Tribunal does not have jurisdiction to hear this complaint as there are constitutional issues involved, I am of the opinion that the issues that are before me are not constitutional issues. My examination of the facts is confined to the application of the Equal Status Acts and the alleged contravention of these Acts by the Department of Education and Science. I am therefore of the opinion that the complainant is entitled to name the Department of Education and Science as a Respondent in this action and that I have jurisdiction to examine the facts of this case and to decide on the matter.

7.2       As mentioned above, this dispute concerns a complaint by Anastasia Lyamina against the Department of Education and Science alleging that the Department failed to provide for her continuing education while she was a student living in the Gaeltacht area of the Dingle peninsula. The complainant maintains that she was discriminated against both directly and indirectly by the Department on the race ground. The respondents deny these allegations stating that the Department only provides for education and that the correct respondent in the case is the Board of Management of the school.

7.3       To enable me to fully consider the allegation made, I propose to examine matters from the following perspective:

·        Firstly, I want to look at the question as to whether the Department of Education and Science falls into the category of “service provider” as defined under the Equal Status Acts.

• Secondly, if my finding is in the affirmative,I propose to proceed to consider whether the Department discriminated either directly or indirectly against the complainant contrary to the provisions of the Equal Status Acts 2000 – 2008.

7.4       In considering the respondents argument that the Department of Education and Science is not a “service provider” as defined by the Equal Status Acts and that the Department’s role is to “provide for education” rather than being a provider of education, I have had regard to provisions of the Education Act, 1998 referred to above and, in particular, I have noted the following extracts from various Sections of the Education Act, 1998:

“ Objects of the Act

6.—Every person concerned in the implementation of this Act shall have regard to the following objects in pursuance of which the Oireachtas has enacted this Act:

(a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;

(b) to provide that, as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;

(c) to promote equality of access to and participation in education and to promote the means whereby students may benefit from education;

(i) to contribute to the realisation of national policy and objectives in relation to the extension of bi-lingualism in Irish society and in particular the achievement of a greater use of the Irish language at school and in the community;

(j) to contribute to the maintenance of Irish as the primary community language in Gaeltacht areas;

(k) to promote the language and cultural needs of students having regard to the choices of their parents;

Functions of Minister

7.—(1) Each of the following shall be a function of the Minister under this Act:

(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,

(b) to determine national education policy, and

(c) to plan and co-ordinate—

(i) the provision of education in recognised schools and centres for education, and

(ii) support services.

(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:

(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;

(b) to monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education, having regard to the objects provided for in section 6 and to publish, in such manner as the Minister considers appropriate, information relating to such monitoring and assessment;

(d) to provide support services through Irish to recognised schools which provide teaching through Irish and to any other recognised school which requests such provision;

(f) to do all such acts and things as may be necessary to further the objects for which this Act is enacted.

(3) The Minister shall have all such powers as are necessary or expedient for the purpose of performing his or her functions.

and

(b) shall make all reasonable efforts to consult with patrons, national associations of parents, parents' associations in schools, recognised school management organisations, recognised trade unions and staff associations representing teachers and such other persons who have a special interest in or knowledge of matters relating to education, including persons or groups of persons who have a special interest in, or experience of, the education of students with special educational needs, as the Minister considers appropriate.”

7.5       From consideration of the above extracts from the Education Act, 1998, I consider that it is clear that the Minister and the Department have a pivotal role to play in planning and co-ordinating  the provision of education in recognised schools and centres for education. Indeed, the Act goes on to state that it shall be a function of the Minister to monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education.

In considering the Department of Education and Science’s role in the provision of education in Ireland, I have also had regard to its Mission Statement which describes the principal functions of the Department as follows:

·        The mission of the Department of Education and Science is to provide high-quality education, which will:

·        Enable individuals to achieve their full potential and to participate fully as members of society,and

·        Contribute to Ireland’s social, cultural and economic development.”

In pursuit of this mission, the Department has identified the following high-level goals:

·        “To promote equity and inclusion.

·        To promote quality outcomes.

·        To promote lifelong learning.

·        To plan for education that is relevant to personal, social, cultural and economic needs.

·        To enhance the capacity of the Department of Education and Science for service delivery, policy formulation, research and evaluation. “

In addition, in its Customer Service Charter the Department gives the following commitment under the heading Equality and Diversity:

“We aim to ensure equality of access to our services, accommodating those covered by the nine grounds identified in equality legislation”

Also, in its Statement of Strategy 2005-2007, the Department of Education and Science identifies itself as a provider of services.  As part of this, the Department pledges to “ensure the effective development and implementation of emerging policy and legislation in partnership with parents, teachers and school management, with a view to promoting access, quality, efficiency and accountability in education.”.

From all of the above, it appears clear that, without the Department of Education and Science, there would be no fundamental education structures in Ireland and I consider that the role it has identified for itself in its mission statement “to provide high quality education” and to “contribute to Ireland’s social, cultural and economic development” is a service it is offering to the citizens of Ireland.

On being asked to comment on the content of its Mission Statement, Customer Service Charter and Statement of Strategy, the respondents argued that these publications do not give rise to any legal obligations on behalf of the respondents as the said documents have no legal standing, were not drafted with any legal precision and merely reflected the Department’s aims, objectives and intentions in relation to a broad range of activities.

While I accept the respondent’s argument that the documents in question have no legal basis, I still consider that they provide an accurate and helpful assessment of the Department’s duties, functions and obligations in the context of its overall role in the provision of education. Accordingly, I consider that the three publications identified above do have persuasive value in the context of my overall decision.

Having taken the contents of the Education Act into consideration in addition to the content of the above-mentioned publications, 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 – 2008.

7.6       The Question of Direct or Indirect Discrimination

Having decided that the Department of Education and Science is a “service provider” under the provisions of the Equal Status Acts 2000 – 2008, I now propose to deliberate on whether Ms Lyamina was directly or indirectly discriminated against and, if so, whether the Department was responsible for any such discrimination.

In considering whether the complainant suffered direct discrimination, I find that there is no evidence to suggest that the Department treated her less favourably than any other student in providing her with education. Accordingly, I consider that the Department of Education and Science did not directly discriminate against Ms Lyamina in the matter.

7.7       In considering whether Ms Lyamina suffered indirect discrimination, I note that Section 3(1)(c) of the Equal Status Acts defines indirect discrimination as follows:

“where an apparently neutral provision puts a person ….at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.

In Ms Lyamina’s case, she claims that it was at the time of the amalgamation of the two schools, when tuition through English was withdrawn, that she found herself to be in a less favourable position than other students.

In relating Ms Lyamina’s case to the above definition of indirect discrimination, I consider that the apparently neutral decision to teach students of the new school solely through the medium of Irish did put Ms Lyamina at a particular disadvantage compared to other students and that this decision may have constituted indirect discrimination contrary to the provisions of the Equal Status Acts.

7.8       Having accepted that indirect discrimination may have occurred, the next step is to decide whether the correct respondents have been identified, in order that they might be afforded an opportunity to rebut the allegation on the basis that the provision was “objectively justified by a legitimate aim”.

In denying that they are the correct respondents in this matter, the Department makes the argument that, in bringing her claim against the Department of Education and Science, the complainant did not pursue the correct respondent.  The Department submitted that the appropriate Respondent to the claim was the Board of Management of  Pobalscoil Chorca Dhuibhne who ultimately made the decision as to how tuition was to be provided. 

The Department states that the authority of a school to decide on its own policies and methods of management is clearly set out in the Education Act and a school is entitled to decide on its own policies in accordance with the Act. If such policies potentially discriminate against any student in particular, the respondents claim that it is a matter for the Board of Management to deal with and defend any complaint made in respect of same. The Department says that it only becomes involved where an appeal is lodged under section 29 of the Education Act, 1998 against a decision of the Board of Management.

Having considered the above, I find that I am prepared to accept the Department’s claim that it is for the Board of Management to decide on its own policies and methods of management in the first instance and that the Department only has an appellant role in such cases.

7.9             Department’s Role in the Amalgamation of Schools

While I am prepared to accept that the Department was not responsible for the day-to-day management of Pobalscoil Chorca Dhuibhne, in order to establish whether indirect discrimination can be attributed to the Department, I believe that I still need to examine whether the Department had any role to play as a “service provider” in the amalgamation of the two local schools.

Accordingly, I now propose to examine the Department’s role in the amalgamation process of the Dingle schools to establish whether it played a primary or supporting role in the process and whether it had any input, at the amalgamation stage, into deciding the language through which subjects were to be taught in the new school.

As part of my deliberations on developments in the Dingle peninsula, I have taken cognisance of the Commission on School Accommodation’s report regarding the Amalgamation of Second Level Schools. At page 17 of the report the Commission states that “the desired outcome of an amalgamation is that students have improved access to educational programmes” 

At page 27, the report summarises the formal role of the Department of Education and Science in second level school amalgamations.  This includes the “decision in principle and Minister to decide on type of new school”.    Moreover, in Section E of the report, at page 51, the following recommendation is made:

“School type for the new school

2.     (a) The decision on the type of school for the newly amalgamated school should be informed by a range of considerations, including the outcomes of local consultation.

(b) If the patrons agree on the school type of the newly amalgamated school, the Minister for Education and Science should ratify the patron position.

(c) If the patrons agree in principle on an amalgamation but can not agree on the school type of the newly amalgamated school, the patrons should agree to refer the decision to the Minister for Education and Science on the basis that they will accept the Minister’s decision.”

7.10     Clearly from the above, the Minister for Education and Science has a role to play when amalgamations are being considered and this is in keeping with section 7(3)(b) of the Education Act 1998 which requires that the Minister “shall make all reasonable efforts to consult with patrons, national associations of parents, parents' associations in schools, recognised school management organisations, recognised trade unions and staff associations representing teachers and such other persons who have a special interest in or knowledge of matters relating to education, including persons or groups of persons who have a special interest in, or experience of, the education of students with special educational needs, as the Minister considers appropriate.”

However, the important point to note from the above extract from the Commission on School Accommodation’s report is the reference to the power of the Minister in the amalgamation process at 2(b) above which says “If the patrons agree on the school type of the newly amalgamated school, the Minister for Education and Science should ratify the patron position”. This to me indicates that the Minister is only required to make a decision in a case where there is disagreement at local level on the type of school to be provided. Otherwise the Minister simply ratifies the proposal.

7.11     In order to obtain clarity as to the role of the Minister in the amalgamation of the Dingle schools, in September 2008 I sought copies from the Department of all relevant documentation held in relation to the proposed amalgamation of the Dingle schools. This documentation was submitted in November 2008.

I have since examined this documentation in detail and have found the following:

• A new second-level school was originally discussed locally in 1986
• In 1987, following local consultation at all levels, it was agreed by an overwhelming majority that sanction should be sought from the Minister for Education for the amalgamation of the two local schools in Dingle into a single Catholic Voluntary School
• In 1989, the Minister gave her agreement in principle for the amalgamation
• In 1998, because of the development contribution required from the local community towards a Voluntary School, the local community met and agreed unanimously that the status of the new school be changed to a Community School which would result in the Department financing the development of the school rather than the local community
• In 1999, the Department, noting that the agreement of all relevant parties was now on record, confirmed its acceptance of the change of status of the new single school in Dingle to a Community School
• There is no evidence whatsoever in the documentation to suggest that the Department was involved in any discussions with regard to the Irish language policy to be adopted by the new school for the tuition of classes.

7.12     From the above, it appears clear to me that the Department simply ratified the decision of the local community with regard to the status of the new Dingle school and played no decision-making role in the process. In addition, I can see no evidence from the documentation submitted to suggest that the Department had any influence in the decision to teach classes solely through the medium of Irish. It would seem that this decision was taken by the Board of Management itself at a later stage.

Based on the foregoing, I find that the Department of Education and Science had no role to play in deciding how tuition was to be provided in the new school and, accordingly, I consider that it did not discriminate either directly or indirectly against the complainant.

8          Decision

I find that the complainant has not established a complaint of direct discrimination but has established a complaint of indirect discrimination in this instance. However, I also find that the complainant, in bringing the case against the Department of Education and Science, has failed to identify the correct respondent with regard to her allegation of indirect discrimination.

Accordingly, I find that the complaint against the Department of Education and Science fails.

Brian O’Byrne

Equality Officer

6 March  2009