The Equality Tribunal
Equal Status Acts 2000-2011
Decision DEC-S2012-032
Parties
A Parent (on behalf of her son)
v.
A Youth and Community Service Centre
File Reference: ES/2010/102
Date of Issue: 15/08/2012
Key words
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Disability - 3(2)(g), refusal of a service - Section 5(1), Section 38A - burden of proof, established prima facie case, redress - Section 27(1)
Delegation under Equal Status Acts, 2000-2011
The complainant on behalf of her son referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 5th November 2010. On the 3rd of July 2012, in accordance with his powers under section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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. On this date my investigation commenced. A submission was received from the complainant on the 29th July 2011 and from the respondent on the 12 September 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 23rd July 2012.
1. Dispute
1.1 The dispute concerns a claim by a parent (hereinafter referred to as the complainant) on behalf of her son that he was discriminated against on the disability ground by a Youth and Community Service Centre (hereinafter referred to as the respondent) concerning his application for enrollment in a summer camp for the year 2010. The complainant alleges that the respondent discriminated against her son in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant, on behalf of her son, submitted that her child who is now aged 12 has a disability known as Aspergers Syndrome which is a form of high functioning autism. He has communications and social skills problems but due to the early intervention he received he is now doing very well at school and he has no behaviour difficulties. He has attended main stream primary school and has had a SNA for 6 hours per week for organisational reasons and he is now moving on to secondary school this year where he will not need such supports. He has been attending the autism service of the HSE and for the years 2005 to 2009 and he attended an integrated summer camp organized by the respondent with a special needs assistant paid for by the HSE and attendance at the camp was paid for by the parent. The complainant said that after he attended the summer camp in 2009 she discussed his progress with autism service and it was decided that he would no longer need a SNA to attend summer camp and she was in full agreement with the decision.
2.2 The complainant said that she went to enroll and pay for her son for the 2 week summer camp for 2010 and the respondent would not accept him because the HSE were only funding an SNA for one week. The complainant said that she understood that the autism unit had informed the respondent that her son no longer needed an SNA and his name was not on the list submitted to the respondent from the HSE. The complainant said that the respondent refused to enroll her son independently of a referral from the autism unit and funding for a SNA. She believes that his name was added to the list by the respondent so that the HSE would provide the funding for the SNA. He eventually attended the camp and the HSE funded a SNA which her son did not need for one week only. She believed the problem would have been sorted before the second week commenced but the respondent's refused to accept her child for the second week without a SNA and the HSE was not providing funding for one. The complainant said that the camp was an integrated camp and her son's cousin and all his friends were attending and he wanted to be there with them and he was very disappointed that he could not attend for the second week. She said it was very important for him to attend alongside his friends and cousin. She had told him about his disability earlier in the year and that he had improved so much that he would be able to attend summer camp without a helper and he was very excited about it. She said that he was devastated and he refused to go to any other summer camp she organised for him. After the summer holidays he also refused to continue to go to an after school week day club he was attending in the respondent's centre. The complainant said that Aspergers Syndrome is a broad spectrum and all of the sufferers cannot be classified as having the same needs. She said it was her opinion that her son could have participated without an SNA. She said that she would never send him somewhere he could not cope. It is important for him to participate in the activities of the summer camp and she believed he did not need assistance given that all his friends and cousins were there.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against due to his disability. The respondent stated that the Centre started in the 1970's and it runs a range of programmes for children, youths and older people throughout the year and it is 33 years running summer camps. It is working in partnership with the HSE's Learning Disabilities and Autism Unit for the past 8 years providing services for children and young people on the Autism Spectrum and specific after school programs as well as places on its integrated summer camps. The autism unit identifies the children for participation in the summer camps and submits a list to the respondent as it also identifies the SNA to work with the children and due to the embargo on recruitment it provides funding to the respondent to pay them. It is an integrated camp for children with and without disabilities and up to 120 children take part in the programme devised by the respondent. The activities provided include hill walking, canoeing, treasure hunts, sports, trips to the beach, orienteering, art and crafts, day trips etc. From 2004 onwards the respondent reserved places for 2 weeks on the summer camps for children on the autism spectrum and their SNAs' at the request of the HSE. In 2010 the HSE reduced the funding for the SNAs to one week per child and this was communicated to the parents of children who had expressed an intention to attend the camp through the Autism unit. Therefore the camp for the children with autism and coming the HSE was reduced to one week something which was outside the control of the respondent. The complainant called to the centre on the 1st of June 2010 to enroll her son. She filled out the enrollment form and she wanted to enroll her son for two weeks. She informed the centre that her son no longer required a SNA and the autism unit were of this view also. The respondent did not enroll her son for the second week because he had been previously supplied with supports by the HSE and they were not in a position to make a judgment on the level of support he required. Ms. A, the Centre Coordinator, stated that she told the complainant that the HSE was only providing funding for a SNA for one week and she could only enroll for one week. Ms. A accepted that the child's name was not on the original list that they received from the HSE but stated that he was subsequently added to the list by the Coordinator of the Autism unit. She said that there was no written instruction from the Autism unit that the child no longer needed an SNA. On the 24th of June 2010 the matter was discussed at a meeting with personnel from the Autism Unit of the HSE. Ms. A said that at this meeting she requested the HSE to provide her with written confirmation that the child could attend the summer camp without supports from the autism service and she was informed by the Learning Disability Manager that the staff did not have the qualifications to make a finding on whether the child could participate in the summer camp without support and they would not provide a written assessment. She said that up to 120 children participate in the summer camps each they have to take health and safety issues is a priority for the respondent. As the complainant's child had been referred through the autism services of the HSE and while she accepts the child's autism therapist was of the view the child could manage on the summer camp without assistance they could not accept him without the supports unless they had written permission from the HSE.
3.2 The respondent solicitor submitted that they have a long history of advocating for and providing services and programmes for disadvantaged youth and children and children with disabilities. The centre has worked tirelessly to provide opportunities for the integration of children and young people within mainstream programmes to enhance their opportunities for social and personal development. The respondent is a voluntary body and the specialised programmes they provide are funded by external agencies and in this case the HSE. Therefore the staff does not have the expertise to assess the individual needs of the young people referred and it is reliant on the expertise of the HSE who provide the appropriate level of supervision required for the individual children with disabilities who participate in the summer camps.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was directly discriminated against on the disability ground contrary to the Equal Status Act as regards attending the summer camp.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability," and
Section 5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.2 I am satisfied that the complainant's son has a disability and is covered by the Equal Status Acts. The complainant submits that her son was discriminated against on the disability ground when the respondent Centre refused to accept him on to a summer camp without a SNA. The respondent submits that they could not accept him without a SNA because he had been accepted from the years 2005 to 2009 with the assistance of an SNA provided for by the autism services of the HSE and due to financial constraints the HSE were only providing funding for one week summer camp for 2010. They submitted that there were health and safety issues if they accepted the child without assistance. I note the complainant was of the view that her child had progressed to the stage where he could manage at the camp without assistance. I am satisfied that the child's therapist in the autism services was of the same view and this was the reason the child's name was not on the list initially provided to the respondent by the HSE for 2010. The child's name was subsequently added to the list because he could not participate otherwise. He could then only participate for one week because the HSE had cut back on the funding for assistance. While recognising that the respondent was concerned about issues around health and safety if they accepted the child without a SNA, I am of the view that the child's mother was best placed to assess whether her child needed assistance at the camp. The respondent was not in a position to make an assumption that he needed one. The complainant's evidence was that she would not be sending him there without assistance if she thought he could not cope. I note that the services of the summer camp are available to all children without disabilities on the reservation of a place and the payment of the fee and the complainant's cousin and friends who do not have a disability were participating in the camp for the two weeks. The only reason the complainant could not register her child for summer camp for two weeks independently of the autism services was because the child has a disability and had participated in previous years with assistance. I am satisfied therefore the complainant was treated less favourably than a child without a disability was treated in similar circumstances. I find therefore that the complainant has raised a prima facie case of discriminatory treatment on the disability ground when her child could not participate in the summer camp for two weeks without assistance. I also find that the respondent has failed to rebut the prima facie case raised.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground pursuant to section 5(1) of the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under the above Section the maximum amount of compensation I can award is €6,348.69. In considering the amount of compensation that I should award, I have taken into account the effects of the discrimination had on the complainant's child. I note that he was upset at not being able to attend the camp with his friends and cousin for the second week and that the treatment impacted on him to such an extent that he refused to attend the after school placement he had with the respondent. Taking all the above into consideration, I order the respondent to pay to the complainant on behalf of her son the sum of €1,500 (fifteen hundred euro) to compensate him for the discriminatory treatment and the distress and upset experienced by him.
In accordance with Section 21(1)(b) and within 3 months of the date of this Decision, I also order the respondent to review their admission policies in relation to people with disabilities to ensure compliance with the provisions of the Equal Status Acts and to ensure that all staff are trained in relation to the provisions of the said Acts.
___________________
Marian Duffy
Equality Officer
15th August 2012