The Equality Tribunal
Equal Status Acts 2000-2011
Decision
DEC-S2012-026
Parties
A Parent (on behalf of her son)
v.
Bord of Management of a Primary School
File Reference: ES/2011/021
Date of Issue: 12/07/2012
Key words
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Disability - 3(2)(g), refusal to provide a place in a school - Section 7(2), 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 8th February 2011. On the 12th of December 2011, 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 20th April 2011 and from the respondent on the 30th May 2011 and the last correspondence was received on the 18th of June 2012. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 25th May 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 school (hereinafter referred to as the respondent) which refused to process an application to enroll her son in the school. 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 7(1) of that Act.
2 Complainant's Case
2.1 The complainant, on behalf of her son, submitted that her child who is aged 9 has a disability known as dyspraxia causing him difficulties with motor muscle coordination and motor planning e.g. handwriting and sport. He attended another school where he experienced persistent bullying. In that school he moved from the junior to the senior school and the school and his parents were of the view that the bullying would stop when he got into a new class. However during September and October 2010 the bullying persisted and the child found it very distressing and difficult to cope with. It happened mainly before school in this particular school yard. The matter was brought to the attention of the school management but the problem did not resolve and the child was still very distressed. Following an incident in October 2010, when the complainant was called by the school to collect her child because he was very distressed about going home after school, the parents decided to change him from that school. They decided to try and enroll him in a smaller school with fewer streams and smaller number in the yard. They also wanted the child in a mixed school. They decided that the respondent school met their needs as regards their son's needs. The complainant is also a teacher at this school.
2.2 On the 20th October 2010 the complainant said that she sent a note to the school office seeking an application form to enroll her son in her 4th class in the school if the Principal agreed. She said that if management insisted she would also have taken 3rd class but she heard nothing from the Principal and she was not provided with an enrolment form. Two days later on the 22nd of October she received a letter from the Principal refusing her son's application. The complainant said that she was surprised by the content of the response because at this stage no information had been requested by the school and no information had been supplied by her to inform the response or the reasons she wished to change him to the school had not been provided by her. The Principal's letter referred to her son's disability and the requirement for resource teaching and special needs assistance. She was later told by the BOM that the letter was written by the Principal in his personal capacity but she does not accept this explanation. The child's father then wrote to the Principal seeking a meeting with him. He requested the Principal to reconsider his position and stated that he believed that the school would be suitable for his son because he knew it had a zero tolerance policy to verbal abuse wished to enroll the child. In response to the Principals letter he also pointed out that his son would not be isolated in his community if he was accepted in the school and he already had many friends in his local area. In response to the Principals letter, where he stated that he could not accept the child because the resource and special needs team were overloaded, the father pointed out that the child did not need support in either reading or maths and therefore he would not disrupt the resource teachers' work. He did not get a reply.
2.3 The complainant then by letter dated the 15th November 2010 appealed the decision to the Board of Management and sought a response by the 23rd of November. She received an acknowledgement and she was informed that the matter would be discussed at the next Board meeting. On the 9th of December the complainant notified the school of the complaint of discrimination under the ES Acts on behalf of her son. She then received a letter dated the 13th of January 2011 from the Board of Management confirming the Principal's decision not to enroll her son.
2.4 The complainant appealed under Section 29 of the Education Act, 1998. She was notified by the Department of Education and Skills, on the 13th of April 2011, that this appeal was successful and the school was instructed to contact the complainant as soon as possible to arrange for his enrolment. The complainant submitted that the school did not comply and the child was not offered a place before the Summer holidays of 2011. On the 25th of August 2011, the Principal wrote to the complainant offering her son a place in the school. The complainant submitted that this offer was made just 2 days before the schools reopened after the Summer holidays and the school had failed to comply with the Department of Education's instruction to offer him a place as soon as possible. The complainant had already found a place for her son in another school
2.5 The complainant submitted that her child was entitled to have his application processed in accordance with the policy of the BOM. She said that other staff members have been allowed to enroll their children without any difficulty and she mentioned a staff member whose child was in the school from 2006 to 2008. She said that the only difference between her child and other staff children attending the school is her child's disability. She further submitted that the Principal made negative assumptions about there son's disability and assumed he had difficulties without informing himself of the facts, or allowing her to complete an application form so that his application could be assessed like all other applicants for a place in the school. She said that the child had been assessed by the NEPS services of the Department of Education the previous March before he moved to the senior school and he scored above average for his age group in general intelligence and this was the reason she suggested to the Principal he could move to her fourth class. He also had been assigned an SNA. She said that this post is attached to the child rather than the school and she understood from the Department of Education that the post would move with the child. However she was never given an opportunity to explain this to the Principal.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against due to his disability. The Principal stated that once he received the application from the complainant on behalf of her son he sent an acknowledgement to her and two days later he sent a substantive reply. He said this letter of the 22nd of October was not a refusal of a place but it was written in the context of advice and a recommendation from a colleague in the teaching profession and therefore no enrolment form was attached. He said that the application was treated no differently than any other application. He said in evidence if a person came looking for an enrolment form he would usually give them one. He knew that the complainant's son had dyspraxia and that he had a Special Needs Assistance (SNA) in the school he was in. He said that it would not be beneficial to the child to enroll him in the school because he would have to go into a class with 30 children and five had disabilities and one of them also had a SNA. He said that both 3rd and 4th class was full to capacity and he would not be able to accommodate him in either particularly if he needed an SNA and in any event he knew it would not be possible to get a SNA post sanctioned for him. He said that he did not discuss the matter with the complainant before he wrote the letter of the 22th of October. He said that he did not know why the complainant wanted to change her son to the school and he did not ask her. He said that he presumed there was some problem with the other school and he based this assumption on the fact that the complainant sought permission in the recent past to collect him from his school and to keep him in her class until the end of the school day because he understood he was "thrown out" of the school.
3.2 The application was on the agenda for the BOM meeting in January and all the correspondence was put before the Board including the notification of the complaint under the ES Acts. The Principal wrote to the complainant on the 15th of December seeking her permission to contact her son's current school but the complainant did not give permission. The respondent accepted that the complainant wrote to him enquiring what information he required and he accepted he did not answer. The BOM upheld his decision not to enroll the child and informed the complainant by letter dated the 13th January 2011.
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 and if the respondent failed to provide the complainant's son with reasonable accommodation in accordance with Section 4 of the Acts.
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
Section 7 provides: " In this section ''educational establishment'' means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to --
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student."
and Section 4 provides : -- (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."
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 Principal of the respondent school refused to enroll him. I note the complainant wrote to the Principal seeking an application form and it was not provided to her. Likewise I note that two days later without any consultation with the complainant, the Principal wrote to her stating that he had given the matter serious consideration and taking into account the child's social and educational needs and her role and responsibilities as a teacher in the school it would not be wise or beneficial to her child to enroll him in the school. The Principal went on to state that he assumed from what he had heard about the child he would require resource help and possibly special needs assistance and the staff of the school were not in a position to meet his educational and social needs as the resource and special needs team was overloaded.
4.3 I am satisfied that this letter was a direct refusal by the Principal to consider a request for an enrolment application from the complainant on behalf of her child who has a disability. It is clear from the correspondence and in particular from the letter of the 22nd of October 2010 that the reasons for the refusal were connected to the child's disability. The Principal's contention that the letter was merely an advice and recommendation and not a refusal to admit him is not credible given the subsequent refusal to engage with either the child's mother or father when the raised the matter in correspondence with him. The Principal referred the matter to the BOM and they endorsed the contents of his letter and upheld his decision not to consider any application to enroll the child in the school. I note from the evidence that the school regularly gets applications to admit students throughout the school year and these students are admitted provided there is space in the school. The Principal said that a new student joined the school very recently and that student did not have a disability. He also said in evidence at the hearing that there were 3 children on a waiting list to get into the school at that time and before writing to the complainant he enquired of the parents and they indicated they were still interested in a place and the complainant's child could not get a place ahead of them. I cannot accept that this as a reason for refusing to consider the complainant's application on the basis that if it was the real reason it would have been referred to in the letter. The letter clearly refers to the child's special needs and the resources required for him and without any investigation of his needs and any reference to the child's parents; the Principal decided the school was not in a position to meet his needs. Given that the child's mother is a teacher in the school, I am surprised that the Principal did not talk directly to her before making his decision and furthermore I am equally surprised at the tone of the letter from the BOM upholding the decision of the Principal.
4.4 For the foregoing reasons, I am satisfied that the complainant has established that her child who has a disability was treated less favourably than children without disabilities in relation to access to a place in the school. In relation to the provision of reasonable accommodation in accordance with Section 4(1) of the ES Acts, it is clear the respondent refused the child a place on the basis that he would need some special facilities and the management of the school was unwilling to consider the provision of any such facilities. According, I find that the complainant has established a prima facie case of discriminatory treatment of her child on the disability ground which the respondent has failed to rebut.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground pursuant to sections 4(1) and 7(2) 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 son. I note that he was being bullied in the school and he could not move from that school for a considerable period of time. I have taken into account the fact he could have moved much earlier if the respondent had not discriminated against him. Taking this into consideration, I order the respondent to pay to the complainant on behalf of her son the sum of €6,348 (six thousand three hundred and forty eight euro) to compensate him for the discriminatory treatment and the distress and upset experienced by him as a result of being unable to change school at an earlier time.
5.3 I also order the respondent to amend its enrolment policy to ensure that applications received for a place on behalf of children with disabilities are given appropriate consideration in accordance with the provisions of the Equal Status Acts.
5.4 During the course of the hearing it became apparent from the evidence of both parties that there have been difficulties in the working relationship arising from the circumstances of this complaint. Addressing these particular matters does not come within my jurisdiction under the ES Acts. However I am making the following recommendation and because of the limitations of my remit it is non binding: I would strongly recommend with the support of the BOM for the parties to avail of an alternative dispute mechanism such as mediation to restore the working relationship that existed prior to this complaint.
___________________
Marian Duffy
Equality Officer
12th July 2012