The Equality Tribunal
Equal Status Acts 2000 - 2008
Decision DEC-S2010-5
Parties
Dr Michael Seifu
and
Irish Wheelchair Association
File ref ES/2008/03
Date of Issue: 25 January 2010
Key words
Equal Status Acts 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) –- Disposal of Goods and Services, Section 5(1),Reasonable Accommodation, Section 4(1)
Delegation under the Equal Status Acts, 2000 - 2008
On 7 October 2009 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated the complaint to myself, Elaine Cassidy 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. The hearing of the matter was held on 16 December 2009.
Summary of claim/dispute
This dispute concerns a complaint by Dr Seifu that on September 26 2007, he was discriminated against on the grounds of disability by the Irish Wheelchair Association and that they failed to provide reasonable accommodation with respect to the provision of driving lessons.
The claim was notified to respondent on 23 October 2007 and it was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2008 on 8 January 2008.
1.0 Summary of Complainant’s Case
1.1 Dr Seifu has Muscular Dystrophy and is a wheelchair user. He began driving lessons in May 2007 with the Irish Wheelchair Association (hereafter referred to as IWA), who provide specialised tuition for wheelchair users. Prior to starting the lessons he was required to undergo some tests with an Occupational Therapist (OT) to assess his fitness for driving. After the assessment he began to take driving lessons once per week with a named driving instructor. He received approximately 20 weeks of lessons and he felt that the instruction was going well. However in September 2007, his weekly lesson was postponed by his instructor without reason. Over several weeks, Dr Seifu attempted to contact the instructor to re-arrange the lesson, and eventually he was asked to attend a second OT assessment at the offices of the IWA. He was informed that his lessons could not continue until he had completed this assessment.
1.2 On the day of the assessment, Dr Seifu and his personal assistant (PA) went to the IWA together. His PA joined him for the complete set of tests with the OT, which lasted for a couple of hours. After the OT assessment, the driving assessment took place. Dr Seifu requested that his PA should join them in the car for this assessment; however this request was refused. He was also dismayed by the fact that the car which was used in the assessment was different to the one in which he had had his lessons. He believes that if he had been provided with a car which was specially adapted to his requirements, he would have been able to successfully pass the assessment. Dr Seifu contends that the failure to provide him with a suitable car and to allow his PA to attend the assessment constitutes a failure to provide reasonable accommodation.
1.3 At the end of the assessment, Dr Seifu was left in the car, while the assessor went back into the IWA office. When the assessor returned to the car, he informed Dr Seifu that he had failed the assessment and that they could not provide him with any further driving lessons. Dr Seifu was upset by the abruptness of the decision and by being left alone in the car while it was being made. Dr Seifu did not provide the Tribunal with any details of the assessment; however he believes that the results of the test drive, as they were reported by the IWA assessor, did not reflect what happened at all. These results led to the IWA's refusal to provide any further lessons and the complainant believes that this is a direct discrimination against him, based on his specific disability of Muscular Dystrophy.
1.4 In addition to Dr Seifu's unhappiness about the way in which the assessment was carried out, he also expressed dissatisfaction with the earlier conduct of the driving lessons. He said that he was not given adequate time to master the different skills and that the instructor would instead take control of the car himself. He felt that he was not given an opportunity to discuss his progress with the instructor after every session. He also pointed to the fact that he went though an initial OT assessment before he started taking the lessons, so he did not understand why the alleged problems were not picked up at that stage.
1.5 Dr Seifu was very distressed by both the manner and the actual termination of his lessons. He feels that his confidence as a prospective driver has been destroyed and his right to lead an independent life, unfettered by his disabilities, has been curtailed.
2.0 Summary of Respondent’s Case
2.1 The IWA was formed 40 years ago by wheelchair users committed to improving the lives of people with physical disabilities in Ireland. Its aim was to advocate for and deliver services to people with physical disabilities. They have been providing driving tuition since the 1960's and provide tuition to drivers with a diverse range of conditions and disabilities. Each vehicle in their fleet is automatic and fitted with a variety of adaptations to facilitate a broad spectrum of conditions and disabilities.
2.2 They agree that Dr Seifu started lessons with the named driving instructor (an agent acting on behalf of the IWA), following an initial assessment with an OT. However they pointed out that the initial assessment is carried out in an office environment (ie: not in a car on the road), and therefore it is not possible to detect every potential issue at that stage. In any case, they say it is their goal to get the maximum number of disabled people driving safely, so they believe in offering the client an initial opportunity to learn.
2.3 After Dr Seifu had completed about 20 lessons, the IWA received a request from the driving instructor that the complainant attend a full assessment by a driving tester and an OT. Over a month later, following a number of calls by the complainant, the IWA sent a letter to the complainant advising him about this requirement. The respondent fully accepts that the instructor should have made personal contact with the complainant sooner and that he should not have been left so long wondering what had happened to his lessons. The IWA accept that the communication was poor and state that it is not typical of their normal practice. In their formal response to the complainant's Tribunal notification form, they apologised for the instructor's abrupt manner and his lack of response to calls and texts.
2.4 On November 19th, the complainant attended the assessment. Some issues related to Dr Seifu's restricted range of movement, due to his disability, were noted by the OT. However, it would appear that no critical problems were detected, which would have prevented the complainant from learning to drive. During the driving test however, serious issues were raised. These issues were explained to the complainant immediately after the assessment and reiterated in a follow-up letter on November 26th. In summary the complainant was described as having "persistent spatial awareness problems which would put him and others in unavoidable danger every time he ventured onto the road". The driving instructor gave a number of examples during the hearing and in the letter sent to the complainant. For example he said that at one point they were on the wrong side of the road with a bus coming towards them, and the complainant could not see the danger of the situation. At another stage the complainant confirmed that he was happy with his road position, while in fact they were in the opposite lane, virtually touching the right kerb. These incidents, as well as others, indicated to the driving assessor that the complainant had severe difficulty with spatial awareness.
2.5 After the assessment, the assessor reviewed the notes of the original driving instructor and found that he too had raised concerns about the complainant's difficulty with lane positioning and his tendency to drift to the right-hand side of the road. He also looked at the OT assessment and found that this neither confirmed nor denied his assessment. Therefore based on the instructor's notes, the lack of contrary OT advice, and primarily on his own judgement, the driving assessor returned to the car and informed the complainant that he had not passed the test.
2.6 In response to Dr Seifu's complaint about being left in the car while feedback was given, the assessor explained that he did this for a few reasons - firstly that he works from the car and thus considers it his "office"; secondly it is a guaranteed private space in contrast to the offices which could be very busy; thirdly from a logistical and safety perspective, it does not make sense to undertake unnecessary moves for disabled clients.
2.7 The IWA point out that they are very conscious of their role in providing disabled people with the opportunity to drive and thus improve their ability to lead an independent life. However they are also aware that they walk a fine line between giving a genuine opportunity and providing people with false hope. They say that they try to give all of their clients a genuine chance to learn to drive and they only turn people away in cases where they believe there is no hope that the client will pass his/her driving test. During the hearing they estimated that they only turned down about 5% of potential clients. They contend that although this news can be very distressing for the client, it is better to stop lessons at an early stage, rather than to continue taking their money for years and giving them a false expectation.
3.0 Conclusions of the Equality Officer
3.1 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- 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/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
3.2 In the present case, the complainant is a wheelchair user 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 is agreed that the IWA refused to continue giving him lessons. However the cause of the refusal is in dispute between the parties. Therefore it remains to be established what the cause was, whether it can ground a successful claim of discrimination, and whether the respondent provided reasonable accommodation for the complainant.
3.3 During the hearing, the complainant disagreed with the driving assessor on the incidents which happened during the test and which led to his failure to pass. He said that he could not recollect the incidents and that he did not believe that they occurred at all. He also pointed to the fact that the Occupational Therapist had not defined any such problem. The driving assessor agreed that he did not have a precise medical definition of the complainant's condition, but he explained that sometimes in cases where a person has been in a wheelchair for most or all of their lives, their restricted movement may result in them not developing spatial awareness in the way an able-bodied person would. In fact, they may not only lack spatial awareness, but they may also be completely unaware of the problem. The driving assessor stated that spatial awareness is a function of the brain, rather than the eye and that the OT eyesight tests would not necessarily have detected the problem.
In assessing this evidence, I am guided by a number of issues. Firstly the complainant could not recall any of the incidents on the road. Secondly I note that the driving assessor is an extremely specialised instructor who has been working with disabled drivers for over 30 years. Thirdly I do believe the assessor's (and the IWA's) contention that it is their genuine goal to equip as many disabled people as possible to drive safely. Therefore on balance, and without any prejudice to the complainant's overall credibility, I am inclined to accept the evidence of the driving assessor that these road incidents did occur as he described them. The respondent states that their most important duty is to ensure the safety of both the client and other road-users. Based on this evidence it would clearly be impossible for the complainant to continue driving safely. Therefore I find that the complainant has not produced sufficient facts to establish a prima facie case of direct discrimination and therefore this aspect of the complaint fails.
3.4 In the case of disability in considering whether discrimination occurred, further consideration must be 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 to be addressed 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. In assessing the burden on the respondent, I am very conscious of the impact which a driving licence would have on the complaint's independence and quality of life. Therefore I consider that there was a heavy burden on the IWA to ensure that they did all that was reasonable to accommodate the complainant.
3.5 The complainant has argued that if he had been supplied with a car which was suitably modified to his needs and if his PA had been allowed to travel with him, he would have fared better in the test. He believes that the absence of his PA was stressful for him and contributed towards his under-performance in the test.
3.6 With respect to the complainant's suggestion that the car should have been appropriately adapted for his needs, the IWA made a number of points. They stated that although their fleet of cars are already highly modified for the needs of disabled drivers, they are also prepared to make other reasonable adaptations as required. However they said that they generally bring the client through the assessment first and if they feel the client would benefit from some changes, such as seat height, additional mirrors, etc, then they would discuss these requirements with the client and put them in place for the second assessment. However in the present case they strongly felt that no minor adaptation whatsoever would compensate for the complainant's limited spatial awareness. They did mention that highly futuristic cars with anti-collision technology do exist, but that the cost of such cars would be completely outside their budget. They also pointed out that their goal is to get their clients driving cars which they can afford, and therefore there would be no point in having an extraordinary test car, which would generally be beyond the means of their clients. The complainant did not disagree with this point nor seek to argue that he should have been provided with one of these special cars. He maintained his position that reasonable changes to the car would have been sufficient for him.
3.7 Regarding the issue of allowing the complainant's PA to stay in the car during the test, the driving assessor said that he refused this request because it is not their normal policy. Firstly, as a safety issue, it makes sense to have the least number of people in the car with an inexperienced driver. Secondly it is their aim to test the client in their normal circumstances. In their experience most clients do not have a full-time PA, and therefore they need to assess their driving ability without the comfort or assistance of a PA. Finally the assessor stated that he is aware that the test is an unnatural and stressful event for his clients, that they may be tired after the OT tests, and that they may be driving an unfamiliar car. Therefore, he takes all these issues into consideration if there are any minor problems with the client's driving.
3.8 As a final point on the subject of reasonable accommodation, the respondent pointed out that they offer each client, as a matter of course, a second chance to be tested and during the second test, they can have a different assessor to ensure impartiality. I have noted that this opportunity was offered to the complainant in the letter dated 26th November 2007. The complainant chose not to take up the offer, as he felt hurt and distressed by all of his previous interaction with the respondent.
3.9 I have considered each of the above points carefully and on balance I accept the respondent's evidence that there was nothing they could have reasonably done to the car which would have compensated for the complainant's limited spatial awareness. Additionally I accept that the presence of the PA (while of comfort to the complainant) would not have changed the eventual outcome of the test. The respondent also offered the complainant a second test, but he did not accept this accommodation. In summary I have formed the opinion that there was no other reasonable accommodation which could have assisted the complainant to pass the driving test. Therefore this aspect of the complaint also fails.
3.10 Finally I note that during the hearing the complainant gave numerous examples of poor communication by the respondent. The respondent has apologised but argued that these should not form part of the complaint. While I accept that the communication style was distressing to the complainant and probably contributed to his decision to refer this case, I do not find that the incidents have a bearing on the substantive issues of direct discrimination and reasonable accommodation and therefore I have not considered them further.
4.0 Decision
4.1 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 did not establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) and the respondent did not fail to provide reasonable accommodation contrary to the provisions of the Equal Status Acts 2000 - 2008.
Accordingly, the complainant's case fails.
Elaine Cassidy
Equality Officer
Date: 25 January 2010