THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC-S2010-009
PARTIES
Mrs. X (on behalf of her son, Mr. Y)
(represented by a Travellers Advocacy
Group)
and
A Post-Primary School
(represented by Mason Hayes + Curran Solicitors)
File Reference: ES/2007/0169
Date of Issue: 2nd February, 2010
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(1)(g) - Section 3(1)(h), Race Ground - Traveller community Ground, Section 3(2)(i) - Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1) - Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 14th December, 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 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 2nd October, 2009. Final communication with the parties took place on 18th January, 2010.
1. Dispute
1.1 The complainant, Mrs. X claims that her son, Mr. Y, was discriminated against by the respondent on the grounds of his disability, race and membership of the Traveller community in terms of sections 3(1), 3(2)(g), 3(2)(h), 3(2)(i) 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 in terms of its failure to put appropriate measures in place to accommodate his special educational needs as a student with a disability and its subsequent refusal to allow him to return to the school on a full-time basis in September, 2007.
2. Summary of the Complainant's Case
2.1 The complainant's son, Mr. Y, is a member of the Traveller community, and he is a person with Attention Deficit Hyperactivity Disorder (ADHD) and special educational needs. He attended the respondent's secondary school as a student for two years from September, 2005 until the end of the academic year in June, 2007, when he was fourteen years of age. The complainant stated that her son started to experience a number of difficulties in terms of his attendance record and behaviour shortly after commencing his education at the school. The complainant accepted that her son had a very poor attendance record and that he engaged in aggressive behaviour, however, she felt that these difficulties were largely attributable to his disability and were exacerbated by the lack of support which he received from the respondent in managing the issues that arose. The complainant accepts that her son had access to a full-time Special Needs Assistant at the school and that the respondent put measures in place to provide one to one tuition in a number of different subjects. However, she felt that the respondent could have put further measures in place to accommodate his needs as a person with a disability but that it failed to do so. The complainant claims that the respondent failed to utilise the full range of existing structures and supports that were available to it in order to provide assistance for her son (including the services of the Educational Welfare Officer and the NEPS psychologist) and it was submitted that it should have put measures in place such as an Individual Education Plan (IEP) and a behaviour management plan.
2.2 The complainant stated that her son, Mr. Y, became frustrated and withdrawn as a result of the difficulties he was experiencing at the school and this contributed towards his reluctance to attend school on a consistent basis. She stated that her son was suspended from the school on a number of occasions during the course of his attendance in relation to issues that arose as a result of his behaviour. The complainant stated that the blame in relation to these difficulties always seemed to be attributed directly to her son and she contended that he was the only student to be suspended arising out of these incidents. The complainant stated that the school adopted a very negative approach in dealing with the difficulties that arose in relation to her son and she felt that this negative approach was influenced by his Traveller background. The complainant claimed that it is well known that Traveller children had no access to the respondent's school until ten years ago and she submitted that the treatment of her son was part of a similar pattern.
2.3 The complainant stated that she received a letter from the respondent on 10 September, 2007 in which it was indicated that it would not be in the best interests of her son or the other students at the school if he sought to be re-enrolled for the forthcoming school year. The letter went on to refer to his poor attendance record over the previous two years and it stated that the optimum the respondent could offer at that juncture was five hours resource teaching per week in an effort to address his behavioural difficulties and to bring him up to a comparable level with some of his contemporaries which may enable him at some stage in the future to attempt the Junior Certificate. It was submitted that the complainant's son was entitled to full-time education and that the offer of five hours resource teaching per week, in the absence of any other full-time education, was totally inadequate especially in light of the special educational requirements that arose as a result of his disability. The complainant accepts that she was invited by the respondent to attend a number of meetings following the receipt of this letter. However, she claims there was no point in discussing the matter any further with the respondent as she felt that it had little interest in educating her son because he comes from a Traveller background. The complainant stated that her son did not return to the school for the academic year 2007/08 and as a result missed out completely on his education from September, 2007 until February, 2008 when he turned fifteen years of age and was accepted to a FAS Training Centre.
3. Summary of the Respondent's Case
3.1 The respondent stated that upon enrolment of the complainant's son, Mr. Y, in March, 2005, it had discussions with the Principal of his primary school, the Visiting Teacher for Travellers (VTT) and the resource teacher for his primary school and it also obtained a copy of the psychological report which set out the details of his disability. As a result of these discussions and in light of the psychological report, the respondent applied to the National Council for Special Education (NCSE) for teaching support and a full-time Special Needs Assistant to be made available to Mr. Y. He was ultimately granted 5 hours of resource teaching support and access to a full-time Special Needs Assistant (SNA). Mr. Y commenced at the school on 29 August, 2005 and within a period of a few days he displayed severe behavioural problems and teaching staff found it difficult to manage him in class. He also displayed signs of aggression and a lack of ability to concentrate in class. In view of the number of incidents arising in his first few days of school, the respondent stated that it became necessary to monitor Mr. Y's behaviour and the school Principal requested the SNA to record incidents (a record of which was submitted to the Tribunal in evidence). The respondent stated that Mr. Y was suspended for a period of three days on 8 September, 2005 following an incident in which he had assaulted a student and intimidated other students on the basketball court. The respondent stated that the complainant, Mrs. X, was notified of this suspension in writing and informed of the procedure for the re-admittance of her son to the school following the suspension. However, neither the complainant not her son attended the school as requested following the suspension. On the same day, the school Principal had discussions with the VTT with a view to accommodating Mr. Y's needs and a special timetable was drawn up to provide as much one to one tuition as possible in an effort to improve his potential for learning.
3.2 The respondent stated that it put a wide range of other special measures in place in order to accommodate Mr. Y's special educational needs as a person with a disability including one to one tuition, contact with the Special Educational Needs Organiser (SENO), the Educational Welfare Officer, the Visiting Teacher for Travellers and allowing him to attend school for half days. The respondent also stated that it requested a number of meetings with the complainant, Mrs. X, throughout the school years with a view to resolving the difficulties with her son, however she failed to attend these meetings on a number of occasions. The respondent stated that despite these efforts Mr. Y continued to cause severe disruption in classes, was argumentative and aggressive towards others and regularly intimidated and bullied other students. The respondent stated that Mr. Y was suspended on two further occasions in February, 2006 and September, 2006 arising from incidents where he had been involved in the intimidation and bullying of other students. The respondent stated that during the school years commencing September, 2005 and September, 2006, it made numerous attempts to address Mr. Y's educational needs and his behavioural difficulties. However, during this period he failed to avail of the special measures and resources that were put in place and his attendance record of 61 days out of a possible 330 days was totally unacceptable. With a view to resolving the difficulties being encountered with Mr. Y and with a view to reaching a mutually acceptable arrangement for all, the respondent requested a number of meetings with the complainant, Mrs. X and the VTT throughout the school years, however the complainant failed to attend the scheduled meetings. In or around March, 2007, the VTT advised the Principal of the school that Mrs. X wished her son to attend school on a full day basis. A meeting was scheduled to take place between the Principal, the VTT and the complainant on 16 March, 2007, however the complainant failed to meet the appointment.
3.3 No further contact was received by the respondent from the complainant, Mrs. X, until 31 August, 2007 when she attended the school to enrol two other students late into the school year. When attending on this date, the complainant also indicated she wanted her son, Mr. Y, to attend on a full time basis for his third year. The respondent agreed to take the first two students immediately but advised it was not in a position to allow her son, Mr. Y, into a third year class as he had attended on so few days during the previous two years. The complainant returned to the school with the VTT on 7 September, 2007 to discuss her son's return to school and during the discussion that took place it was explained to the complainant that it would not be in the best interests of her son or indeed the other students to place him back in a mainstream third year exam group especially in light of his lack of attendance and behavioural difficulties in the previous two years. The complainant suggested that it was a waste of time discussing the matter and she requested the respondent to address the matter in writing. The respondent subsequently wrote to the complainant on 10 September, 2007 and outlined the aforementioned situation and stated that the optimum it could offer to her son at that juncture would be five hours resource teaching in an effort over time to address his behavioural difficulties and to bring him up to a comparable level with some of his contemporaries which may enable him at some time in the future to follow and attempt the Junior Certificate programme.
3.4 The next contact the respondent received from the complainant was her notification of a possible complaint under the Equal Status Acts on 19 October, 2007. On 22 October, 2007 the complainant was given an appointment to meet the Board of Management on 7 November, 2007 to discuss a matter unrelated to the present complaint. At the meeting the complainant was asked about her earlier request to place her son back in school but she refused to discuss the matter advising that she was not concerned about her son, Mr. Y, at that juncture because of his age. On 8 November, 2007 and at the request of the Board of Management, the Principal of the school wrote to the complainant, Mrs. X, once again and requested that she set out in writing the reasons for wanting her son to return to school in view of his low attendance in the past and to outline what had since changed. The respondent stated that the complainant failed to respond to this letter and failed to provide any reasons as to why her son would access future resources made available to him on a regular basis. The respondent denies that it has discriminated against the complainant on the grounds of his disability, race or his membership of the Traveller Community and it stated that similar action would have been taken against any other student who displayed such a disregard for resources provided and who presented such adverse behaviour towards others, regardless of their status. It submitted that the action taken was done so in a manner which took account of his disability and similar action would have been taken in respect of any other student with such a disability and behavioural propensities. The respondent also stated that Travellers have attended the school since the late 1970's and that since 1999 there have been members of the Traveller community in attendance at the school every year. The respondent stated that manner in which the complainant and her son were treated was no different, and certainly no less favourable, than would be the case with any other student, Traveller or non-Traveller.
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 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.
4.2 The respondent is an educational institution which, inter alia, provides post-primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that:
"7.- (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
(d) the expulsion of a student from the establishment or any other sanction against the student"
I will now proceed to examine the complaint on each of the grounds claimed i.e. the disability, race and membership of the Traveller community grounds.
Disability Ground
4.3 In the present case, it was not disputed that the complainant's son, Mr. Y, has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) 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. The question that I must decide in relation to this issue is whether Mr. Y was treated less favourably than another student would have been, in similar circumstances, on the grounds of his disability in terms of the manner in which the respondent dealt with his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school. In considering this issue, I note that it was accepted by both parties that the complainant's son had special educational needs and requirements arising from his disability. I am satisfied that the respondent did, in fact, put a number of special measures and facilities in place in order to accommodate these special educational needs and requirements. However, I note that it is disputed between the parties as to whether these actual measures were appropriate and/or sufficient to fully accommodate these needs (and I will address this issue in greater detail in the section of my conclusions that deals with "Reasonable Accommodation").
4.4 Notwithstanding the foregoing, I accept the respondent's evidence that it would have dealt with any student in a similar manner regardless of whether or not that student had a disability. Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence from which I could reasonable conclude that her son was treated less favourably than another student would have been, in similar circumstances on the grounds of his disability, in terms of the manner in which his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school were dealt with by the respondent.
Section 7(4)(b) of the Equal Status Acts
4.5 In considering this issue, I have also 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"
Having regard to the evidence adduced in the present case, I have not been presented with sufficient evidence from which I could reasonably conclude that the behavioural difficulties which were presented by Mr. Y were of such a nature that the continued provision of educational services to him would have seriously disrupted or negated the education of other students. I also note that the respondent did not seek to rely upon this provision of the Acts as a defence in terms of the manner in which it dealt with the complainant. In any event, as I have already found that the respondent did not directly discriminate against Mr. Y on the grounds of his disability, it is therefore not necessary for me to consider any further the aforementioned provisions of the Acts in my deliberations on this matter.
Reasonable Accommodation
4.6 In the case of disability in considering whether discrimination occurred, consideration must also be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with the provisions of section 4 of the Equal Status Acts. The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of Mr. Y, as a person with a disability, by providing special treatment or facilities. In considering this issue, I note that there have been a number of pieces of legislation enacted in recent years which make provision for the education of persons with disabilities and for the provision of special facilities and measures to accommodate such persons in terms of their educational requirements. I am of the view that I must take cognisance of the obligations that are placed upon the respondent under this legislation, as the provider of post-primary educational services, in terms of my deliberations as to whether it has discharged it's obligation to provide reasonable accommodation to Mr. Y in the circumstances of the present case within the meaning of section 4 of the Equal Status Acts.
4.7 I have identified the following key questions which must be addressed in considering whether or not the respondent provided reasonable accommodation to the complainant's son, Mr. Y, in accordance with its obligations under section 4 of the Acts.
1. Did the respondent 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 special educational requirements and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school.
2. Did the respondent's decision not to allow Mr. Y to return to full-time education in September, 2007 and it's offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amount to a failure to provide reasonable accommodation in accordance with its obligations under section 4 of the Acts.
4.8 In considering the first question identified above, I note that the respondent was fully aware of the nature of Mr. Y's disability and that he would require special facilities prior to his commencement at the school in September, 2005. It is clear from the evidence adduced that following his enrolment at the school in March, 2005, the respondent had discussions with the Principal of his primary school, the Visiting Teacher for Travellers (VTT) and the resource teacher from his primary school and that it also acquired a copy of his psychological report which set out details of his disability. I am satisfied that the respondent, upon being apprised of the nature of Mr. Y's disability, endeavoured to put special measures in place in order to accommodate his special educational requirements (and thereby to provide him with reasonable accommodation within the meaning of section 4 of the Equal Status Acts) upon his commencement at the school. This is evidenced by that fact that he was facilitated with 5 hours of resource teaching support per week and access to a full-time Special Needs Assistant (following an application on his behalf to the National Council for Special Education) following his commencement at the school in September, 2005.
4.9 It is clear from the evidence adduced that a number of difficulties arose from an early juncture in terms of Mr. Y's attendance at the school, most notably his propensity to engage in disruptive and inappropriate behaviour and his very poor attendance record. I note that it was not disputed between the parties that Mr. Y did, in fact, engage in disruptive and inappropriate behaviour at an early stage following his commencement at the school. I am satisfied that this inappropriate behaviour was of such a serious nature that it left the respondent with no alternative but to invoke its disciplinary procedures in order to address the issues that arose which resulted in him being suspended for a period of three days in September, 2005. I note the respondent's evidence that it had contact with the complainant, Mrs. X, the Visiting Teacher for Travellers, the Special Educational Needs Organiser (employed by the National Council for Special Education) and the County Educational Service around this time in order to discuss the issues surrounding Mr. Y's educational requirements and behavioural difficulties and to endeavour to put measures in place to deal with these issues upon his return to school.
4.10 There is a clear dispute in the evidence of the parties as to whether the measures which the respondent put in place were sufficient to accommodate the complainant's special educational requirements and the behavioural and absenteeism issues that arose during the course of his attendance at the school. The complainant's case is that these measures were not adequate to accommodate Mr. Y's special educational requirements and the behavioural issues that arose as a result of his disability and it submitted that the respondent should have put further measures in place such as the implementation of an Individual Education Plan (IEP), a behaviour management plan and also that it could have availed of the services provided by the area psychologist acting on behalf of the National Educational Psychologist Service (NEPS). Having regard to the evidence adduced, it is clear that the measures which were put in place were not sufficient to accommodate his special educational requirements nor were they successful in addressing Mr. Y's inappropriate behaviour or his absenteeism from school which became apparent in the early weeks of his first year at the school. I am not satisfied from the evidence adduced that the respondent did in fact put in place a coherent Individual Education Plan (IEP) for Mr. Y in order to address his special educational requirements. I accept that the sections of the EPSEN Act relating to IEP's had not commenced at the time of Mr. Y's attendance at the respondent's school, however, I am satisfied that many schools (including the respondent) were fully aware of the IEP process at that juncture and were implementing this process in order to facilitate the progress of children with special educational needs.
4.11 It is clear that the levels of Mr. Y's absenteeism became progressively worse throughout the duration of his attendance at the school and I note the respondent's evidence that he attended the school on only 61 days out of a possible 330 days during his two years at the school (i.e. 38 days out of a possible 165 school days in 2005/06 and 23 days out of a possible 165 school days 2006/07). The respondent submitted that it was as a result of this poor attendance record that it came to the conclusion in September, 2007 that it would not be in his best interests to be re-enrolled for the school year 2007/08 (as was outlined to the complainant in a letter dated 10 September, 2007). I accept that Mr. Y continued to cause difficulties in terms of his behaviour when he did attend school. I also accept that the complainant, Mrs. X, failed to attend a number of meetings which had been scheduled by the respondent in order to discuss the issues that arose in relation to her son and it is clear that this may have created certain difficulties for the respondent in terms of the manner in which it attempted to deal with these issues. However, notwithstanding the foregoing and given the fact that Mr. Y was a child with special educational needs, I am of the view that it is necessary for the respondent to demonstrate that it did all that was reasonable, in the circumstances, to try and address his absenteeism from school if it is to legitimately justify the reasons put forward for the decision that he should not be re-enrolled at the school in September, 2007.
4.12 In considering this issue, I have taken cognisance of section 21 of the Education (Welfare) Act, 2000 which makes provision in relation to the obligations that are placed upon the Principal of a post-primary school in terms of the attendance records of it's students.
"21.-(1) The principal of a recognised school shall cause to be maintained in respect of each school year a record of the attendance or non-attendance on each school day of each student registered at that school"
and
"(4)(b) Where the aggregate number of school days on which a student is absent from a recognised school during a school year is not less than 20, or
(d) Where a student is, in the opinion of the principal of the recognised school at which he or she is registered, not attending school regularly, the principal of the school concerned shall forthwith so inform, by notice in writing, an educational welfare officer"
Having regard to the foregoing, there is a clear and unambiguous obligation upon the Principal of a school to notify the Educational Welfare Officer of any difficulties that arise in terms of the non-attendance of a student at the school. In the present case, there was a dispute in the evidence of the respective parties as to whether or not the respondent complied with it's statutory obligations in this regard. The Assistant Principal, Mr. Z (who was acting in the capacity of Principal at that juncture), gave oral evidence that he contacted the Educational Welfare Officer in relation to Mr. Y's poor attendance record and that he provided all of the relevant information in this regard. At the hearing of the complaint, I requested the respondent to provide copies of any records (or other documentation) that existed in relation to it's contact with the Educational Welfare Officer in the case of Mr. Y. However, the respondent informed me in correspondence after the hearing that Mr. Z did not keep any copies of the reports which he claims were made to the Educational Welfare Officer except for a diary entry dated 27 March, 2006 which contained the name and telephone number (in Cork) of an Educational Welfare Officer. I note that this diary entry did not make any reference to the case of Mr. Y and I am therefore of the view that it is of very little evidential value in terms of the present case.
4.13 Having regard to the clear requirement that is placed upon a school Principal to notify the Educational Welfare Officer, in writing, of any difficulties in terms of the poor attendance of a student (as stated in the aforementioned provisions of the Education (Welfare) Act), I have great difficulty in accepting the totality of Mr. Z's evidence as to whether the respondent did, in fact, comply with it's statutory obligations in terms of the reporting of Mr. Y's attendance difficulties. In coming to this conclusion, I have also taken into consideration the evidence of the complainant, Mrs. X, that she did not obtain any contact or support from the Educational Welfare Officer in terms of her efforts to address the difficulties that arose in relation to her son's attendance at the respondent's school. Based on the evidence adduced, I am satisfied that if the respondent had properly complied with it's statutory obligations in terms of the manner in which it dealt with Mr. Y's absenteeism from school, it would have resulted in the services of the Educational Welfare Officer being made available in order to provide support and ultimately to address the issues that arose in this regard. Having regard to the foregoing, I am satisfied that the respondent's failure in this regard amounted to a failure to do all that was reasonable to accommodate the needs of Mr. Y, as a person with a disability, within the meaning of section 4 of the Equal Status Acts.
4.14 This conclusion leads to my consideration of the second question identified above i.e. whether the decision not to allow Mr. Y to return to full-time education in a third year class in September, 2007 and it's offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amounted to a failure to provide reasonable accommodation in accordance with its obligations under section 4 of the Acts. In considering the obligations that are placed upon a post-primary school to provide educational services to its students, I have taken cognisance of the provisions of section 9(2) of the Education Act, 1998 which states:
"9. -- 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"
I note the respondent stated in evidence that it took the decision that Mr. Y should not be re-enrolled for the school year 2007/08 on the basis of his poor attendance record over the previous two years with the result that it would not have been in his interest, or the interests of the other students, to place him in a mainstream third year exam group (a letter to this effect was issued to the complainant, Mrs. X on 10 September, 2007). I accept the respondent's contention that Mr. Y would not have been in a position to participate in and complete his Junior Certificate examinations in the school year commencing September, 2007/08 given the level of his absenteeism in the previous two years. However, I cannot accept that the respondent's offer to provide him with only 5 hours of resource teaching per week, without further access to the normal standard of full-time education provided to other students, would have been adequate to address his educational needs and thereby comply with it's obligations under section 9(a) of the Education Act, 1998. Furthermore, I am not satisfied that the respondent's offer in this regard would have been in any way sufficient to cater for the special educational requirements that arose as a result of his disability.
4.15 The respondent stated in oral evidence at the hearing of the complaint that it would have been prepared to facilitate Mr. Y in repeating second year. However, I have not been presented with any evidence that this option was presented to Mrs. X as a viable alternative during the course of the contact that it had with her subsequent to the letter which was issued on 10th September, 2007 (i.e. on 22 October, 2007 and 8 November, 2007). Indeed, I note that Mrs. X stated in evidence that she would have seriously considered this option if it had been presented to her at the time. I have taken into consideration the respondent's evidence that the purpose of this further contact was to afford Mrs. X the opportunity to set out in writing the reasons for wanting her son to return to the school in view of his low attendance in the past and to outline what had changed since. However, based on the evidence adduced, I have not been presented with any evidence from which I could reasonably conclude that the respondent would have been prepared, in any circumstances, to facilitate the complainant in terms of his access to full-time education for the school year 2007/08. Having regard to the foregoing, I find that the respondent's decision not to provide Mr. Y with access to full-time education for the school year September, 2007 and it's offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amounted to a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts.
4.16 In considering the obligation that was incumbent upon the respondent to provide reasonable accommodation to Mr. Y, in the present case, within the meaning of section 4 of the Equal Status Acts, I have also taken cognisance of the provisions of section 4(4) of the Acts which states:
"(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"
Having regard to the evidence adduced in the present case, I have not been presented with sufficient evidence from which I could reasonably conclude that the respondent can legitimately rely upon this defence in relation to the discharge of it's obligations to Mr. Y in accordance with the provisions of section 4 of the Equal Status Acts. I also note that the respondent did not seek to rely upon this provision of the Acts as a defence in terms of the manner in which it dealt with the complainant.
Race Ground
4.17 The complainant submitted that her son has also been subjected to discrimination by the respondent on the grounds of his race. It was submitted that the complainant's son, Mr. Y, as a member of the Traveller community, is a member of an ethnic minority which resides within the State and accordingly, he is covered by the definition of race within the Equal Status Acts. The complainant, in support of the argument in relation to this aspect of her complaint, also referred to the ongoing campaign that is currently taking place to have members of the Traveller community recognised as an ethnic minority within the State. Having given consideration to this aspect of the complaint, I find that I cannot accept that the complainant, Mrs. X, or her son, Mr. Y, are covered by the race ground as provided for within the Equal Status Acts. The "race" ground is designed to afford protection against discrimination to those of a different colour, nationality or ethnic or national origins who reside within the State. Having regard to the evidence adduced in the present case, I find that the complaint under the race ground is not admissible within the meaning of the Equal Status Acts.
Traveller community ground
4.18 It was not in dispute between the parties that the complainant, Mrs. X, and her son, Mr. Y, are both members of the Traveller community. The complainant claims that her son, Mr. Y, was subjected to discrimination on the grounds of his membership of the Traveller community in terms of the manner in which his educational requirements were dealt with by the respondent. The question that I must decide in relation to this issue is whether the complainant's son was treated less favourably than another student would have been, in similar circumstances, on the grounds of his membership of the Traveller community in terms of the manner in which the respondent dealt with his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school.
4.19 Based on the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the manner in which Mr. Y's educational requirements and his behavioural difficulties and absenteeism were dealt with dealt with by the respondent was in any way influenced by his membership of the Traveller community. In coming to this conclusion, I note the respondent's evidence that it also experienced behavioural difficulties with another student in Mr. Y's class, who was a member of the settled community, and that this student was subjected to the same disciplinary code and sanction of suspension in relation to his inappropriate behaviour. Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that her son was treated less favourably than another student would have been in similar circumstances on the grounds of his membership of the Traveller Community in terms of the manner in which his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school were dealt with by the respondent.
4.20 I am also satisfied that I have not been presented with any evidence which would support the complainant's contention that the respondent's school "had a known history" of denying admission to members of the Traveller community. I would point out that I do not have any jurisdiction to investigate or indeed consider any general allegations of the maltreatment of members of the Traveller community by the respondent save for those issues that come within the scope of the present complaint under the Equal Status Acts. However, notwithstanding the foregoing, I have taken note of the respondent's evidence that some 15 members of the Traveller community have attended the school since the year 2000 and also the complainant's evidence that another one of her children has attended the respondent's school without experiencing any difficulties (and continues to do so). The respondent has also adduced evidence that it actively engages with the relevant supports that are available in terms of the provision of education to members of the Traveller community. In the present case, I am satisfied that there is clear evidence that the respondent actively engaged with the Visiting Teacher for Travellers in terms of the provision of educational services to the complainant's son and during the course of it's interaction in relation to the behavioural difficulties that arose during the course of his attendance at the school.
4.21 Having regard to the totality of the evidence adduced, I therefore, find that the complainant has not established that her son, Mr. Y, was treated less favourably than a non-Traveller would have been treated in a similar situation in terms of the manner in which his educational requirements and the management of his behavioural difficulties and absenteeism were dealt with by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground.
5. Decision
5.1 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 race and Traveller community grounds in terms of sections 3(1), 3(2)(h), 3(2)(i) and 7(2) of the Equal Status Acts.
5.2 I also find that the respondent has discriminated against the complainant on the disability ground in terms of section 3(2)(g) and 7(2) of the Equal Status Acts by failing to provide reasonable accommodation in accordance with section 4(1) of the Acts. Accordingly, I find in favour of the complainant in relation to this element of the complaint.
5.3 Under Section 27(2) of the Equal Status Acts the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award in this case I have taken into consideration that the respondent did in fact endeavour to put a number of special measures in place in order to facilitate Mr. Y's special educational requirements and to address the issues that arose in relation to his inappropriate behaviour. I have also taken into consideration that the complainant, Mrs. X, failed to attend a number of meetings which had been scheduled by the respondent in order to discuss the issues that arose in relation to her son and that her failure to engage on these occasions may have created certain difficulties for the respondent in terms of the manner in which it attempted to deal with the issues that arose. However, notwithstanding the foregoing, I have also taken into account the effects on Mr. Y of the respondent's ultimate failure to provide him with reasonable accommodation within the meaning of section 4 of the Acts in terms of the manner in which it dealt with his absenteeism from school and the request that he be facilitated with a return to full-time education in September, 2007. I have also taken into consideration that Mr. Y did not complete his post-primary education after his attendance at the respondent's school had terminated and the effect that this has had on his academic achievements. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €3,000 as redress for the effects of the discrimination.
5.4 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent put in place a system that will facilitate the timely compliance with it's statutory obligations under the Education (Welfare) Act, 2000 to report to the appropriate educational authorities any issues which may arise in the future in relation to the non-attendance of students at the school.
Enda Murphy
Equality Officer
2nd February, 2010