DEC-S2009-031 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC–S2009-031

PARTIES

Mrs. A (on behalf of her son B)

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

of the Equality Authority)

and

A Boys National School

(represented by Mr. Niall Beirne B.L. on the instructions

of Mason Hayes + Curran Solicitors)

File Reference: ES/2005/0124

and ES/2006/0014

   Date of Issue: 15^th May, 2009

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2009-031

Keywords

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

Delegation under the Equal Status Acts, 2000 to 2008

These complaints were referred to the Director of the Equality Tribunal on 23^rd May, 2005 and 23^rd January, 2006 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 12^th December, 2008 and 4^th February, 2009.  Final communication with the parties took place on 9^th April, 2009.

1.            Dispute

1.1             The complainant’s mother, Mrs. A claims that her son, B, 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 Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the sanction of suspension which the school imposed upon the complainant on two occasions arising from behaviour which his mother claims was as a consequence of his disability. 

2.            Summary of the Complainant’s Case

2.1             The complainant, B, is a child with Autistic Spectrum Disorder and Attention Deficit Disorder with special educational needs, who attended the respondent’s boy’s national school as a student for seven years until he left the school in June, 2005, when he was aged twelve years.  The respondent’s school is a mainstream school but additional resources were made available to it to respond to the needs of the complainant, as a child with special needs.  It was submitted that the complainant was suspended from the school for three days on two separate occasions in March, 2005 and June, 2005 (while in fourth class) due to behaviour which was associated with his autism and was not otherwise “bold behaviour”.  The respondent had previously threatened to suspend the complainant in January, 2004 following an incident in which it was claimed that he had struck his Special Needs Assistant.  On this occasion, the complainant’s mother, Mrs. A, had requested a meeting with the respondent to discuss an incident which occurred the previous December in which the complainant had returned home from school with a bruise on his face.  However, at this meeting the respondent raised a separate issue about an incident in which the complainant was alleged to have struck his Special Needs Assistant and the respondent requested that Mrs. A agree to the imposition of an informal three day suspension as a result of this incident.  Mrs. A refused to accept the informal suspension, on the advice of the psychologist that she had engaged to provide support for the complainant.  The respondent did not impose the sanction of suspension on this occasion but instead issued a warning that a suspension would be imposed if there was a recurrence of the behaviour on the part of the complainant.  

2.2             The complainant was suspended by the respondent for three days in March, 2005 (i.e. 21^st to 23^rd March, 2005) following an incident in which he was alleged by the school to have struck his class teacher and Special Needs Assistant.  Mrs. A stated that she was requested to attend a meeting by the respondent in order to discuss this incident, however, she claims that the school was unable to provide her with detailed reports in relation to the alleged incident despite her request for a full explanation.  The respondent imposed the suspension on this occasion despite advice given to the school that suspension was not an appropriate sanction or method of handling the complainant’s behaviour.  The complainant was suspended by the respondent for a second period of three days in June, 2005 (i.e. 7^th to 9^th June, 2005) following an incident in which he was alleged to have struck his resource teacher in the face.  Mrs. A claims that she was not provided with a clear explanation or detailed account by the respondent as to what the complainant had done to merit the suspension.  The respondent was again advised that suspension was not an appropriate method of dealing with the complainant’s behaviour but this advice was ignored and the sanction of suspension was imposed.  It was submitted that there was not a “known” common practice of suspension in the school and in addition to the inappropriate application of a sanction of this nature to the complainant, as a person with a disability, it was also claimed that he was singled out for this treatment. 

2.3             It was submitted that there is no merit in the respondent’s contention that the complainant was suspended in the interests of the health and safety of other students or of the staff.  It was also submitted that the sanction of suspension was in conflict with the advice furnished by experts engaged on the complainant’s behalf.  The respondent was urged to develop a management plan to deal with the complainant’s behaviour rather than the application of the school’s standard disciplinary sanctions.  However, it was claimed that the respondent failed to do this despite repeated requests by experts working with the complainant who pointed out that responding to inappropriate behaviour in a child with autism by punishment or sending the child out of the class is futile.  Despite all of this the school insisted that it would continue to apply the normal school rules in relation to inappropriate behaviour.  It was claimed that the approach of the school to the discipline of the complainant was demonstrative of a refusal on the part of the school to treat him in a non-discriminatory manner and ultimately, his parents felt that their son was effectively excluded from the school by reason of their intransigence on the question of dealing with the complainant’s behaviour as a disciplinary issue. 

2.4             The complainant’s mother, Mrs. A, received a letter from the respondent dated 27^th May, 2005 in which it was stated that the complainant’s needs were not being adequately met by the school and it was strongly recommended by the respondent that she place the complainant in a different school.  It was submitted that the school failed to identify what the complainant’s needs were or how it might endeavour to support him as a person with a disability.  Mrs. A had engaged the services of a number of professionals including a child educational psychologist, a speech and language therapist and an occupational therapist, at her own expense, in order to support the complainant; however, it was submitted that the respondent failed to fully co-operate with or to implement the recommendations and practical advice from this professional team.  Mrs. A stated that it remained her view that the complainant’s needs could be best met by remaining in the respondent’s school provided the school was committed to working with the complainant, his family and professional team.  The complainant’s mother sought a commitment from the respondent in August, 2005 that the school would draw up an appropriate Individual Education Plan (IEP) in consultation and with the input from all of the professionals, to include a detailed behaviour management plan that would guide all those in contact with the complainant as to the appropriate response to his behaviour; however, this commitment was not forthcoming from the respondent.  The complainant’s mother subsequently met with the school Principal, Mr. C, on 26^th August, 2005 and raised concerns about a possible future suspension of the complainant but the Principal indicated that he could not tolerate bad behaviour in the school.  It was submitted that the complainant’s parents had no option, in light of the clear intention of the school to continue to discipline him in a like manner to other non-disabled students and an insistence that his needs could not be accommodated at the school, but to seek service provision at an alternative educational establishment.  As a result of the school’s attitude and actions the complainant was removed from the school and placed in an alternative educational establishment for the school year that commenced in September, 2005.

2.5             The complainant contends that the respondent also failed to provide him with reasonable accommodation within the meaning of Section 4 of the Equal Status Acts.  It was submitted that the application of the school rules pursued by the respondent in suspending the complainant, without regard to or allowance for the fact that he has a disability rather than a discipline problem which is amenable to being dealt with by sanction such as suspension represents a failure to adapt the school rules to meet the situation of a child such as the complainant who has a disability and therefore, constitutes a failure to provide reasonable accommodation.  It was submitted that the failure to find or to consider alternative means of responding to and dealing with the complainant’s behaviour arising from his disability other than as a disciplinary issue constitutes a failure to provide reasonable accommodation.

3.            Summary of the Respondent’s Case

3.1             The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which it catered for his educational needs.  The respondent submitted that it is a mainstream school with an ethos of inclusion and integration which aims to provide an environment in which all children including those with special education needs are encouraged to reach their full potential academically, socially, emotionally and spiritually.  The complainant commenced attendance at the school in September, 1998 and it was obvious from the professional reports furnished by his parents at that time that his special education needs would pose a real challenge for the school, however, the school was determined to rise to the challenge and do all in its power to provide for his needs.  The maximum amount of resources was accessed from the Department of Education & Science to facilitate the complainant’s needs and he was placed in classes with very experienced and highly qualified teachers.  The school arranged further psychological assessments for the complainant and all of which substantiated his previous reports and placed a question mark over his placement in a mainstream school.  It was submitted that the complainant’s own speech and language therapist and occupational therapist expressed similar reservations. 

3.2             The respondent submitted that notwithstanding these reservations the school in good faith made accommodations over and above those it makes for non-disabled students, including;

·     an Individual Education Programme (IEP)

·     liaising with specialists

·     purchasing of specialist equipment

·     providing five hours with resource teacher per week (including seven and a half hours per week one year)

·     much more frequent communication with his parents

·     changing yards

·     facilitating the complainant’s mother in supervising him

·     buddy system

·     numerous adaptations in the classroom

·     An attempt by the school to set up a special unit for children with autism

The respondent stated that it also actively engaged with a wide range of professionals in order to provide for the complainant’s educational requirements and at all times it acted under the guidance of the statutory body charged with providing psychological support to schools for students with special needs (i.e. National Educational Psychological Services Agency (NEPS)).  The school drew up and put into practice an IEP for the complainant which included input from the complainant’s teachers, parents, recommendations from psychological reports (NEPS and private), private speech and language therapists’ suggestions and private occupational therapists’ contributions.  This IEP was revised on a number of occasions and each revision required an enormous investment of hours on the part of the school.  The complainant also had a Behaviour Management Plan as part of his IEP and this made allowances for his day to day behaviour.  It also addressed the issue of how best to modify his behaviour to eliminate or reduce his frustration and outbursts in the classroom and engage in more socially acceptable behaviour, however, as the complainant progressed in the school his behaviour became a serious concern in that it was a danger for himself and others. 

3.3             The respondent submitted that the complainant’s behaviour was impacting negatively and seriously on the emotional, educational and general welfare of the other children in the class and an increasing amount of the teacher’s time was taken up dealing with his behavioural difficulties and attempting to communicate with him.  When the complainant was agitated to the extent that he used rude gestures and foul language, various means of distraction were attempted by his teacher and SNA but usually to no avail.  The school staff tried tirelessly to unearth stratagems that would have a calming effect on him and some of these worked some of the time, however, there were occasions when it was absolutely necessary to remove the complainant from the classroom for his own sake and that of others.  The respondent submitted that every allowance was made for the complainant because of his disability and his parents were routinely informed of incidents such as hitting and striking other children, his teachers and special needs assistant.  When the complainant first struck his peers, special needs assistant and teacher, it was hoped that this type of behaviour would in time become less and less frequent.  In these earlier instances no suspension was effected and lesser sanctions such as removing him from the situation were enacted, however, there was no diminution in the severity of the complainant’s acts and if anything they were becoming more violent as he grew older and stronger.    

3.4             The respondent submitted that the sanction which would have been imposed on other children (i.e. those without a disability) viz. a voluntary withdrawal for a three day period was not considered in relation to the complainant until he struck his Special Needs Assistant in January, 2004.  On this occasion, the normal sanction of voluntary withdrawal was suggested to the complainant’s mother, Mrs. A, at a meeting on 20^th January, 2004 but she refused to avail of it on the advice of Dr. X, the child psychologist that accompanied her at this meeting.  The respondent advised Mrs. A on this occasion that should an incident of such gravity recur a formal suspension would be imposed.  Eventually, in the complainant’s seventh (and final) year in the school his dangerous behaviour was becoming so frequent and severe that it was considered necessary by the Board of Management to suspend him on two separate occasions i.e. in March, 2005 and June, 2005.  The complainant struck his Special Needs Assistant and his teacher on the first of these occasions and struck his resource teacher on the second occasion.  The respondent submitted that a thorough investigation was carried out in relation to each of these incidents and the school adhered to its code of discipline in effecting the complainant’s suspension on both occasions.  The respondent stated that a meeting was convened with the complainant’s mother, Mrs. A, (and her representatives) on each occasion and she was made fully aware of the nature of the incidents and the reasons why the suspensions were being invoked.  The respondent submitted that the complainant was a risk to himself and to others and by March, 2005 after exhausting all interventions suitable to a mainstream school there was none of merit other than suspension available to the school.  The respondent claims that if it had not imposed sanctions against the complainant for this behaviour it would have been found negligent under Health and Safety legislation in terms of its failure to provide a safe environment to all members of its school community.     

3.5             The respondent submits that each of the complainant’s teachers had an excellent relationship with Mrs. A until the issue of the appropriateness of his placement in a mainstream school was raised.  It submitted that Mrs. A seemed unwilling to consider the advice of all the school based professionals, including the NEPS psychologist, Ms. Y, that a mainstream school might not be the best environment for the complainant.  When this suggestion was made it seemed to trigger a deterioration in the relationship on Mrs. A’s part.  In May, 2005 the Board of Management of the school, having considered the matter at length, wrote to the Department of Education & Science expressing its concerns regarding the appropriateness of the complainant’s placement in the school.  The Board also wrote to the complainant’s parents expressing these concerns.  On 26^th August, 2005 the complainant’s mother Mrs. A met with the school Principal, Mr. C, and at this meeting she repeatedly requested that the respondent issue a letter stating that the school was not willing to allow the complainant to return on 1^st September.  Mrs. A also sought a guarantee from the Principal that the school would not invoke a further suspension on the complainant in the future.  The Principal, Mr. C, informed Mrs. A that he wasn’t prepared to issue such a letter as this was not the case, however, he reiterated the respondent’s concerns to her regarding the appropriateness of the complainant’s placement in a mainstream school.  The Principal also informed the complainant’s mother that the power to invoke suspensions was vested in the Board of Management, however, he indicated that the school could not tolerate a situation whereby the complainant, or any other student, was striking staff or other students.  The complainant did not return to the school on 1^st September, 2005 and the respondent subsequently received notification from another educational establishment that he had enrolled at that school. 

3.6             The respondent has relied upon the provisions of sections 4(4) and 7(4)(b) of the Equal Status Acts, 2000 to 2008 in defence of its position that the decision to implement the sanction of suspension in March and June, 2005 did not constitute discrimination against the complainant on the grounds of his disability.

4.            Issue of Jurisdiction

4.1             The complainant has referred two separate complaints to the Tribunal in relation to the alleged discriminatory conduct in the present case.  The first complaint was referred to the Tribunal on 23 May, 2005 (Case Ref: ES/2005/0124) in which it is claimed that the date of the last act discrimination was 18 March, 2005 i.e. the date that the first suspension was imposed upon the complainant (it was not disputed between the parties that this complaint was referred to the Tribunal within the time-limits prescribed within Section 21(6) of the Equal Status Acts, 2000 to 2008).  The second complaint was referred to the Tribunal on 23 January, 2006 (Case Ref: ES/2006/0014) in which it is claimed that the date of the last act discrimination was 26^th August, 2005 i.e. the date upon which the final meeting took place between the respondent and the complainant’s mother.  The second complaint also contains details in relation to the second suspension which was imposed upon the complainant in June, 2005.  The respondent has submitted that if the Tribunal does not make a finding that there was an act of discrimination on 26 August, 2005, it does not have jurisdiction to investigate the alleged incident of discrimination that occurred in June, 2005 (i.e. the second suspension) as this incident occurred more than six months prior to the date of referral of the latter complaint on 23 January, 2006.  Accordingly, it was submitted that the occurrence of the second suspension which was invoked in June, 2005 is outside of the time limits prescribed within Section 21(6) of the Equal Status Acts, 2000 to 2008. 

4.2             The complainant, in response, submitted that the policy adopted by the respondent to suspend the complainant was an ongoing policy which extended over a period of time.  The complainant submitted that this policy commenced on the date the first suspension was imposed in March, 2005 and culminated on 26 August, 2005 when the respondent refused to provide an undertaking that it would not invoke further suspensions if the complainant returned to school in September of that year.  The complainant claims that the second suspension which was imposed upon the complainant in June, 2005 was invoked as part of this ongoing policy and it was submitted therefore, that the Tribunal does have jurisdiction to investigate this incident as part of the ongoing policy of discrimination.         

Conclusions of the Equality Officer in relation to the issue of jurisdiction

4.3             Section 21 of the Equal Status Acts, 2000 to 2008 makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the referral of complaints, namely:   

Section 21(6)- “6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.

This provision of the Acts clearly envisages a single act of discrimination or a chain of two or more similar acts of discrimination.   Therefore, the question that I must decide in order to determine the admissibility, or otherwise, of the second complaint (which was referred to the Tribunal on 23 January, 2006), is whether or not the second suspension which was imposed upon the complainant in June, 2005 constitutes a once-off or single act of discrimination or alternatively, whether or not this suspension was part of an ongoing policy which commenced when the first suspension was invoked in March, 2005 and culminated on 26 August, 2005 i.e. when the respondent refused to provide an undertaking that it would not invoke a further suspension if the complainant returned to the school in September, 2005.

4.4             In considering this issue further, I have taken cognisance of Section 21(11) of the Equal Status Acts, 2000 to 2008 (which was inserted by the Equality Act, 2004) and which provides:

“For the purposes of this section prohibited conduct occurs –

(a)  if the act constituting it extends over a period, at the end of the period,

(b)  if it arises by virtue of a provision which operates over a period, throughout the period”

I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of a policy or provision which continued in force over a period of time (as is claimed by the complainant the situation in the present case).  Having regard to the provisions of Section 21(11)(b), I am satisfied that the respondent’s decision to invoke the sanction of suspension upon the complainant in March and June, 2005 constitutes a provision or policy which was in operation over a period of time and which had ongoing consequences or effects for the complainant in terms of his access to the school.  Having regard to the evidence adduced, I am of the view that it is reasonable to conclude that the sanction of suspension would have been invoked again by the respondent (i.e. in the school year which commenced in September, 2005) in circumstances where there was a reoccurrence of the behaviour that had led to the initial suspensions.  In the circumstances, I am satisfied that the respondent’s policy to invoke the sanction of suspension had already been established (and had been effected on two separate occasions) at the time the meeting took place between the complaint’s mother and the respondent on 26 August, 2005 and that the potential effects of this policy were still ongoing for the complainant on this date.  Accordingly, I find that the latter complaint (i.e. Case Ref: ES/2006/0014) is admissible under Section 21(6) of the Equal Status Acts, 2000 to 2008 and therefore, that I have jurisdiction to investigate the circumstances surrounding the second suspension which was imposed upon the complainant in June, 2005.  I will now proceed to consider the substantive complaint that has been referred for decision in the present case.

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

5.1             The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant.  Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him.  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. 

5.2             In all the circumstances of this complaint, I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainant:

·        Did the respondent’s decision to invoke the sanction of suspension on the complainant in March, 2005 and June, 2005 amount to discrimination on the grounds of his disability?

·        Did the respondent’s decision to invoke the sanction of suspension on the complainant in March, 2005 and June, 2005 amount to a refusal or failure to provide reasonable accommodation to the complainant within the meaning of Section 4 of the Equal Status Acts?

Discriminatory Treatment

5.3             In the present case, it was not disputed that the complainant is a child with Autistic Spectrum Disorder and Attention Deficit Disorder 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.  It was accepted by both parties that the complainant was suspended by the respondent on two separate occasions i.e. in March, 2005 and June, 2005 following incidents that occurred in the school in which he is alleged to have struck his teacher/SNA.  It was submitted on behalf of the complainant that the behaviour which led to him being suspended by the respondent arose as a direct consequence of his disability and was not wilful or “bold” behaviour.  Accordingly, it was submitted that to sanction the complainant as if he were a child with a discipline problem resulted in less favourable treatment of him in the provision of educational services because of his disability.  It was further submitted that the application of the same rules of discipline to the complainant as to those students without a disability, notwithstanding the fact that his behaviour arose from a disability rather than from wilfulness, amounts to discrimination[1]. 

5.4             The respondent submitted that it was not in a position to determine whether the complainant’s behaviour was wilful or not and it contends that the sanction of suspension was imposed as a last resort having exhausted all other options because his behaviour was dangerous and putting the health and safety of other members of the school community at risk.  The respondent submitted that when the complainant first struck his peers it was hoped that this type of behaviour would in time become less violent and less frequent, however, there was no diminution in the severity of his acts and if anything they were becoming more violent as he grew older and stronger.  The respondent claims that the complainant was a risk to himself and others and by March, 2005, after exhausting all interventions suitable to a mainstream school, it was left with no alternative but to invoke the sanction of suspension.  The respondent submitted that the complainant was in fact treated more favourably than any other child as was evident from the special stratagems and accommodations made for him.

5.5             Having regard to the evidence adduced, I am satisfied that there had been a number of incidents prior to the implementation of the first suspension in March, 2005 in which the complainant had struck his teachers/SNA and/or fellow students.  I accept the complainant’s contention that this behaviour may not have been wilful and that it was associated with his disability; however, given the nature and increasing frequency of these incidents and the negative and potentially dangerous impact that they were having on the complainant, his teachers and fellow students, I am of the view that the respondent had an obligation to put appropriate measures in place in order to address the complainant’s inappropriate behaviour.  I note that the sanction of suspension was first mooted by the respondent following the occurrence of an incident on 9 January, 2004 in which the complainant had struck his Special Needs Assistant. On this occasion, the normal sanction of voluntary withdrawal was suggested to the complainant’s mother at a meeting on 20^th January, 2004 but she refused to avail of it on the advice of Dr. X, the child psychologist that accompanied her at this meeting.  I note that the respondent did not impose the sanction of suspension on this occasion but instead advised the complainant’s mother that should an incident of such gravity recur a formal suspension would be imposed.  I am satisfied that the respondent adopted a more lenient application of its code of discipline in this instance than would have been the case if it had been dealing with a pupil without a disability.  

5.6             Based on the evidence presented, I am satisfied that the complainant’s behaviour following this incident continued to present serious difficulties for the respondent and I am of the view that there were a number of further incidents involving the complainant which would have warranted the respondent to invoke the school’s disciplinary procedure in circumstances where a pupil without a disability had engaged in such behaviour.  However, I note that the respondent did not invoke its normal disciplinary procedure in response to these incidents and I am satisfied that the complainant was in fact treated more favourably than a student without a disability would have been treated, in similar circumstances, in terms of the manner in which its disciplinary procedure was applied.  I am satisfied that the respondent, rather than invoking the disciplinary procedure prior to March, 2005, sought to deal with the complainant’s behavioural difficulties through alternative methods.  The respondent adduced considerable evidence in relation to the different stratagems and methods it adopted to deal with and manage the complainant’s challenging behaviour, however it is clear that despite these efforts the complainant’s behaviour continued to present very serious difficulties for the respondent in terms of its obligation to provide educational services to both himself and his fellow students.  In particular, I have found the evidence of Mr. Z, the complainant’s class teacher during 4^th class (i.e. the year in which the suspensions were imposed), to be very compelling regarding the serious difficulties and disruption that the complainant’s behaviour presented in the classroom situation and of the extremely disproportionate amount of time that it was necessary for him to dedicate to the complainant (as compared to other students in the class) in terms of the management of this behaviour and in facilitating his special educational needs. 

5.7             In considering this issue, I have also taken cognisance of the provisions of sections 7(2) and 7(4)(b) of the Equal Status Acts which make provision against discrimination by an educational establishment in the provision of educational services:

“7(2) An educational establishment shall not discriminate in relation to -

(a)  the admission or the terms 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 (my emphasis)”

and

 “7(4) Subsection (2) does not apply -

       (a) 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”

Having regard to the aforementioned provisions of the Equal Status Acts, it is clear that an educational establishment or school cannot be held to have discriminated against a student with a disability in terms of any sanction (such as expulsion/suspension) imposed against that person, in circumstances, whereby the continued provision of services to that person, by virtue of his/her disability, would make it impossible or have a seriously detrimental effect on the school’s capacity to provide educational services to other students.  I am of the view that an educational establishment can only rely upon this exemption in circumstances whereby a student whose disability is of such a nature that the continued provision of educational services to that person would seriously disrupt or negate the education of other students. 

5.8             Based on the evidence adduced in the present case, I am satisfied that the extreme nature of the difficulties presented by the complainant’s behaviour, especially in terms of the incidences of striking his teachers/SNA/peers and the disproportionate amount of time that it was necessary for his class teacher to dedicate towards the management of this behaviour, were having a seriously detrimental effect on the capacity of the respondent to provide educational services to both the complainant and the other students in his class.  In the circumstances, I am satisfied that the sanction of suspension was ultimately implemented by the respondent (in March, 2005 and June, 2005) as a last resort when all other alternatives as a means of dealing with the complainant’s inappropriate behaviour had been explored and exhausted.  I am satisfied that the respondent carried out a detailed investigation in relation to the incidents that prompted it to invoke the disciplinary procedure in these incidences and furthermore, I am satisfied that details of these incidents were communicated to the complainant’s mother on both occasions.  Having regard to the provisions of Section 7(4)(b) of the Equal Status Acts, I am satisfied that the respondent did not subject the complainant to discrimination in the present case in terms of its decision to invoke the sanction of suspension in March and June, 2005.  Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination of the disability ground. 

Reasonable Accommodation

5.9             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 …”.

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, as a person with a disability, by providing special treatment or facilities.  This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability in terms of the manner in which it dealt with his behavioural difficulties which ultimately resulted in the sanction of suspension being imposed on two separate occasions. 

5.10         It was submitted on behalf of the complainant that the failure of the respondent to find or to consider alternative means of responding to the complainant’s behaviour arising from his disability other than as a disciplinary issue constitutes a failure to provide reasonable accommodation.  It was submitted that the respondent was urged to develop a behaviour management plan to deal with the complainant’s behaviour rather than the application of the school’s standard disciplinary sanctions; however, it failed to do this despite repeated requests by experts working with the complainant who pointed out that responding to inappropriate behaviour in a child with autism by punishment is futile.  The respondent has submitted that it made every allowance possible for the complainant’s behaviour and that the school’s reluctance to invoke the sanction of suspension because of his behaviour was part of the strategy to adapt the disciplinary rules for his benefit.  It submitted that there were many occasions other than the two occasions on which suspension was invoked where this sanction might have been considered but the school gave the complainant every latitude and opportunity because it was hoped that as he matured these behaviours would diminish, however, this did not transpire to be the case.  The respondent submitted that it had exhausted all interventions available to a mainstream school in attempting to deal with the complainant’s behaviour and by March, 2005 (when the first suspension was imposed) there was none of merit available other than the sanction of suspension.  

5.11         I note that there is a clear dispute between the parties regarding the appropriateness and effectiveness of the actual measures which were implemented by the respondent as a means of managing the complainant’s behaviour.  In particular, I note that there is a significant dispute between the parties regarding the nature and effectiveness or otherwise of the Individual Education Plans (IEP’s) that the respondent put in place for the purpose of managing the complainant’s behaviour.  In considering this issue, I am satisfied that the IEP’s were an important and integral tool in the management of the complainant’s behaviour and his educational requirements, however, I must also state at this juncture that it is not within my remit under to Equal Status Acts to determine whether or not the IEP’s that were put in place were effective in terms of the standard or the appropriateness of the education that was being provided for the complainant.  The only jurisdiction that I have in this regard is to determine whether or not the measures that were put in place by the respondent in order to manage the complainant’s behaviour (of which the IEP’s were an integral part) constitute the provision of special measures and facilities to accommodate the needs of the complainant, as a person with a disability, within the meaning of Section 4 of the Acts. 

5.12         Based on the evidence presented, I am satisfied that the respondent actively liaised and consulted with a wide range of professionals that had been engaged to provide assistance in managing the complainant’s behavioural difficulties and special educational requirements.  Furthermore, I am satisfied that the respondent did in fact put in place a wide range of special measures and initiatives (which have already been adverted to in para. 3.2), both as a consequence of its engagement with these professionals and through its own instigation, which were implemented in order to manage the complainant’s behaviour and to cater for his special educational requirements as a person with a disability.  In particular, I have taken note of the evidence of Ms. Y, the NEPS psychologist who provided assistance to the complainant, regarding the IEP’s that were put in place for the complainant and the resultant initiatives that were implemented by the school in order to manage his behavioural difficulties and to cater for his special educational requirements.  I have found the evidence of Ms. Y to be very compelling and in particular, I have noted her contention that she felt the respondent had attempted to facilitate the complainant as best it could given the fact it was operating as a mainstream school.  Based on the evidence adduced, I am satisfied that the special measures and facilities (including the IEP’s and behaviour management plan) that the respondent put in place in order to manage the complainant’s behavioural difficulties were reasonable in the circumstances of this case and that these measures were sufficient to discharge its obligations under section 4 of the Equal Status Acts to the complainant as a person with a disability.  Having regard to the foregoing, I find that the respondent’s decision to invoke the sanction of suspension on the complainant in March, 2005 and June, 2005 did not amount to a refusal or failure to provide reasonable accommodation to the complainant within the meaning of section 4 of the Equal Status Acts.  

5.13         I also note that the respondent has relied upon the provisions of section 4(4) of the Equal Status Acts, 2000 to 2008 in defence of its position that the decision to implement the sanction of suspension did not amount to discrimination against the complainant on the grounds of his disability.  Section 4(4) of the Acts provides as follows:

“(4) Where a person has a disability that, in circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination”

As I have already found that the alleged discriminatory treatment in this case i.e. the imposition of the sanction of suspension upon the complainant, in the circumstances of this case, did not amount to less favourable treatment on the grounds of his disability or a failure to provide reasonable accommodation within the meaning of Section 4 of the Acts, it is therefore not necessary for me to consider the aforementioned provisions of the Acts in my deliberations on this matter.

6.            Decision

6.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.  I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(a), 3(2)(g), 4(1) and 7(2) of the Equal Status Acts, 2000 to 2008.  Accordingly, I find in favour of the respondent in this case. 

Enda Murphy

Equality Officer

15^th May, 2009