DEC-S2014-024

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2011

Decision DEC–S2014-024

PARTIES

Mr. X (on his own behalf and on behalf of his son, Mr. Y)

(represented by Mr. Conor Power B.L.

on the instructions of T.P. Robinson Solicitors)

and

The Board of Management of a National School

(represented by Mason Hayes and Curran

Solicitors)

File Reference: ES/2012/0074

Date of Issue: 18th December, 2014

Keywords

Equal Status Acts, 2000-2011 - Direct discrimination, Section 3(1)(c) – Family Status Ground, Section 3(1)(a) - Disability Ground, Section 3(1)(g) - Reasonable Accommodation, Section 4(1) - Access to Education, Section 7(2) - Discrimination by Association

Delegation under the Equal Status Acts, 2000 to 2011

This complaint was referred to the Director of the Equality Tribunal on 12th June, 2012 under the Equal Status Acts, 2000 to 2011. On 5th June, 2014, in accordance with his 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, 2000-2011 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 30th September, 2014.

1. Dispute

1.1 The complainant, Mr. X claims that his son, Mr. Y, was discriminated against by the respondent on the grounds of his disability in terms of sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts and contrary to section 7(2) of those Acts in relation to the manner in which a locking system was installed in respect of certain pupils at the respondent’s school. The complainant, Mr. X, claims that he was discriminated against on the ground of disability by association, as the father of a child with disability, in terms of the access available to him and his wife at the Autism Spectrum Disorder Unit (“ASD Unit”) at the respondent’s school. The complainant, Mr. X, also claims that he was discriminated against by the respondent on the ground of family status contrary to section 3(2)(c) of the Acts.

2. Summary of the Complainants’ Case

2.1 The complainant’s son, Mr. Y, has Asperger’s Syndrome and is a high functioning child and was a pupil in 6th class of the respondent’s school at the time of the present complaint. Mr. Y attended the ASD Unit in the respondent’s school for 20% of the time at school and he spent the remaining 80% of time at the school in mainstream classrooms. It was submitted that four other children also attended the ASD Unit in the school at that juncture. Mr. Y had 40 minutes each day 1:1 with a teacher in the resource room and his mainstream integration also included break time and lunch time.

2.2 The complainant, Mr. X, submitted that in or around 16th December, 2011 he became aware that a new lock up procedure had been installed in relation to the ASD Unit classroom at the respondent’s school. Mr. X submitted that he was not informed by the school authorities of this change and he learned of same from other parents. Mr. X submitted that the new system involved an electronic automatic locking system on the door of the ASD classroom which kept the door automatically locked at all times. It was submitted that to unlock the door of the ASD classroom a teacher and three Special Needs Assistants (SNA’s) required a unique coded hardware device to open the door and gain access. Mr. X submitted he was informed that the lock up system was installed to prevent one particular child from opening the door and leaving the ASD Unit. Mr. X submitted that neither the parents nor the pupils were consulted in any way about the installation of the new lock up system, notwithstanding the severe impact such a system of lockdown would have on his son and on his son’s education.

2.3 Mr. X submitted that his son, Mr. Y, has been caused to suffer anxiety as a result of the introduction of the lockdown system and this anxiety had a clear detrimental effect in the manner in which his educational needs were met by the respondent. It was submitted that as a result of the difficulties, Mr. Y was forced into mainstream class full-time, to the detriment of his needs. Mr. X claims that his son did not receive the supports necessary to ensure that his full-time attendance in mainstream classes has not affected his education. Mr. X submitted that it was necessary to withdraw his son from the respondent’s school in March, 2013 as a result of the detrimental effect that the installation of the lockdown system had on his anxiety levels. Mr. X submitted that children attending mainstream classrooms were not locked in and it was claimed that the introduction of such a lockdown system of classroom tuition amounts to incarceration of the disabled children in the classroom, and therefore, constitutes less favourable treatment of his son on the grounds of disability contrary to section 7(2) of the Equal Status Acts.

2.4 The complainant, Mr. X, further submitted that on occasions the children in the ASD Unit were left unsupervised in the lockdown environment and that it was totally inappropriate for their needs and furthermore, it was discriminatory of them in that other students at the school would not be left so unsupervised.

2.5 Mr. X submitted that he was not provided with any proper explanation by the respondent for the introduction of the automatic lock door system. He claims that no proper risk assessment was carried out by the respondent in advance of the electronic locking system being installed in the school. Mr. X further submits that in preparing for the introduction of the system no proper professional expertise was accessed to advise on its installation. Mr. X claimed that both he and his wife were misled by the respondent in that the school suggested that the inspector and the Special Education Support Service had made recommendations to such a lockdown system being introduced. However, Mr. X submitted that he did not believe this to be the case. Mr. X submitted that he pursued the matter with the school on numerous occasions by telephone and written correspondence and he claims that he did not receive a proper response from the school as to the reasons behind the introduction of the system which he submitted was indicated by the manner in which he found out about the introduction of the system. Mr. X submitted that the respondent’s failure to consult with him (or his wife) and the failure to carry out a proper risk assessment prior to the installation of the lockdown system amounts to a failure to provide reasonable accommodation to a person with a disability within the meaning of section 4 of the Equal Status Acts.

2.6 The complainant, Mr. X, also claims that he was subjected to discrimination by the respondent on the ground of disability by association, as the father of a child with a disability. Mr. X claims that after he had raised concerns with the respondent about the installation of the lockdown system that both he and his wife were denied access to the ASD Unit unless they were supervised by a teacher. Mr. X submitted that the parents of other pupils in the ASD Unit were not subjected to such a requirement and that the respondent failed to provide them with an explanation for the requirement to be supervised despite requesting clarification at several meetings.

3. Summary of the Respondent’s Case

3.1 The respondent is a mainstream primary school with an ASD Unit which provides specialist education and care for children of varying abilities and varied levels of Autism. The respondent submitted that the Board of Management was requested to establish the ASD Unit by a Special Educational Needs Officer (SENO) because the school was dealing so well with two students in mainstream classes who had Asperger’s Syndrome. In September, 2011, at the commencement of the school year 2011/12, the ASD Unit had five children (including the complainant, Mr. Y) of varying ability and varying levels of Autism. The respondent submitted that contrary to what is alleged by the complainant, the children have never been left unsupervised in the ASD Unit or indeed in any of the school’s mainstream classes. The respondent submitted that it would be extraordinary were that the case, particularly when the children in the ASD Unit have been allocated additional support staff by the Department of Education and require constant supervision at all times. The children in the ASD Unit had a staffing complement (at the time the present complaint was referred to the Tribunal) of one teacher and three SNA’s together with the part time equivalent of half an SNA post.

3.2 The respondent submitted that one of the children in the ASD Unit with certain complex special needs absconded from the school premises on two occasions during the academic year 2010/11. The school is situated approx. 50 metres from a very busy roadway and the respondent submitted there was a risk that a further such incident could have catastrophic consequences for the child in question. In order to address the risk, the School Principal, Ms. Z, consulted a wide range of opinion in the matter. The respondent submitted that Ms. Z sought advice from the school’s Autism Liaison Officer, the Special Education Inspectorate of the Department of Education and the school’s insurer. The respondent submitted that Ms. Z also consulted with a support group of Principals of schools with ASD Units, all of which had a locking mechanism in their respective schools. Following this consultation, the Board of Management of the school decided to have a magnetic lock fitted to the door of the ASD Unit. Each member of staff was furnished with a fob key to monitor and control the children’s access to and from the Unit. In the event of the fire alarm being activated, the doors would automatically unlock. Over the summer of 2012, the respondent had magnetic locks installed on all the external doors of the school. The respondent submitted that as a result there has been no requirement to subsequently use the magnetic locks on the ASD Unit. However, be that as it may, it was decided by the Board of Management that the magnetic locks in the ASD Unit would remain in place in the event that it was urgently needed to accommodate the needs of a particular pupil or pupils in the future.

3.3 The respondent disputes the complainant’s contention that Mr. Y was caused to suffer “extreme anxiety as a result of the introduction of the lockdown system”. The respondent submitted that whilst Mr. Y may have presented with anxious behaviour at home, at no time did he exhibit any anxiety in school. The respondent submitted that Mr. Y’s personality, behaviour and needs were well known to staff in the ASD Unit and staff would have immediately been alerted to any anxiety on his part. The respondent submitted that contrary to the complainants’ assertion, Mr. Y’s parents requested that he be removed from the ASD Unit to join the mainstream class.

3.4 The respondent submitted that the installation of the locking measure was a reasonable, proportionate and responsible measure to accommodate the needs of a particular child and to safeguard the risk of a further incident occurring in the future. The respondent submitted that it had a duty to act in loco parentis over the pupils in the school whose care their parents had entrusted to it. The respondent submitted that had it not installed the magnetic locks to secure the ASD Unit, it would have undermined its responsibility to adequately care for the children in the class with potential adverse and negligent consequences. The respondent relied upon the provisions of section 7(4) of the Equal Status Acts to rebut the allegation of discrimination which it submitted allows AN educational establishment to treat students with disabilities differently only if the disability is making the provision of education services impossible to other students, or is having a serious detrimental effect on the provision of such services.

3.5 The respondent also submitted that the decision to install the locking mechanism was a child centred approach to reasonably accommodate the needs of a particular child in the Unit with special needs which caused him to hurt himself and staff on occasion. The respondent refutes the complainants’ claim that the failure to consult with the complainant, or other parents, in relation to the installation of the magnetic locking system amounts to discrimination contrary to section 4 of the Equal Status Acts. The respondent submitted that there is no obligation under the Education Act, 1998, or indeed any other legislative provision, for a school to consult with parents in relation to every decision relating to the children’s education and care. It submitted that as in all schools, the respondent and its staff are entitled to exercise their professional judgement in identifying and providing for the educational and care needs of the children. The respondent submitted that while it could have consulted with the parents prior to the installation of the magnetic locks, it was under no obligation to do so. The respondent submitted that it met with the parents of the children attending the ASD Unit on 14 March, 2012 to explain the reasons why it was necessary to install the magnetic locks. The respondent submitted that other than the complainant, Mr. X, the parents were satisfied with the respondent’s actions on this matter and the reasons why the measure was necessary. The respondent submitted that it also engaged in correspondence with the complainant, Mr. X, to explain why the magnetic locking system was a necessary measure.

3.6 The respondent denies that the complainant, Mr. X, was subjected to discrimination on the ground of disability by association, as the father of a child with a disability in terms of the manner in which access to the ASD Unit was made available to him and his wife following the installation of the magnetic locking system.

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 2011 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 At the outset of the hearing, the complainants’ representative confirmed that the complaint of discrimination on the ground of family status was being withdrawn. Therefore, I will proceed to examine the remaining elements of the complaint.

Discriminatory Treatment

4.3 The respondent in the present case is an educational institution which, inter alia, provides primary education to students and, as such, is an “educational establishment” 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 2011 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”

4.4 It was not disputed between the parties that Mr. Y, had Asperger’s Syndrome, 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. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I am obliged to consider. Firstly, I must consider whether the complainant's son, Mr. Y, has been discriminated against because of his disability in this case, as defined by Section 3(1)(a) and 3(2)(g) of the Actsand within the meaning of Section 7(2) as already described. The complainant claims that the installation by the respondent of the magnetic locking system on the ASD Unit amounts to less favourable treatment of his son, Mr. Y, on the grounds of his disability. In considering this issue, I am satisfied that the relevant comparator for the purpose of this element of the complaint is a student without a disability who attended the mainstream section of the respondent’s school.

4.5 The respondent gave evidence that it was necessary to install a magnetic locking system on the ASD Unit to accommodate the needs of a particular student (Student A) who had a propensity to abscond suddenly and without warning from the Unit. I note that it was not disputed by the respondent that a similar magnetic locking system was not in place in the mainstream classrooms at that juncture. In the circumstances, I am satisfied that the complainant has established facts from which it may be presumed that his son was subjected to less favourable treatment than a student without a disability who attended a mainstream classroom in terms of the installation of the magnetic locking system in the ASD Unit in the respondent’s school. Accordingly, I find that this fact is of sufficient consequence to discharge the complainant's initial burden of proof and shift the onus to the respondent to rebut the inference of discrimination raised.

Respondent’s Rebuttal

4.6 The complainant’s son, Mr. Y, was one of five children of varying ability and varying levels of Autism who attended the ASD Unit at the respondent’s school during the school year 2011/2012. The respondent gave evidence that it was necessary to install a magnetic locking system on the ASD Unit to address a very serious situation whereby one of these students with certain complex special needs absconded from the school premises on two occasions during the previous academic year. It is clear from the evidence adduced that the respondent had a duty to put measures in place to protect both the student with the propensity for absconding and the other students attending the Unit. The question that I must address in terms of the present complaint is whether the measures implemented by the respondent i.e. the installation of the magnetic locking system on the ASD Unit amounted to a discriminatory measure against the complainant’s son, Mr. Y, on the grounds of his disability.

4.7 The School Principal, Ms. Z, gave evidence in relation to the severe behavioural difficulties exhibited by Student A during the period immediately prior to the installation of the magnetic locking system and the gravity of the situation that arose after he had absconded on two separate occasions from the school premises during the previous academic year. Ms. Z also gave evidence that there was a pre-existing locking system on the ASD Unit on the occasions that Student A absconded from the classroom; and despite attempts by the respondent to modify this existing locking system (by way of installing different handles, knobs etc.) this system had proven ineffective in deterring this student from absconding from the Unit. Notwithstanding the difficulties that arose in relation to Student A’s behavioural difficulties, this student was assessed by the relevant authorities as being suitable to continue attending the ASD Unit and there was no suggestion that he should be placed elsewhere or in another school.

4.8 Having regard to the foregoing, I am satisfied that the withdrawal or expulsion of Student A from the ASD Unit was not an option for the respondent in terms of putting a solution in place to address the risk of him absconding on a further occasion from the school. If such a course of action were to re-occur it could potentially have had catastrophic consequences for the personal welfare and safety of this student for which the respondent would have been legally responsible. It was therefore incumbent on the respondent to put in place appropriate measures to address this issue and alleviate, insofar as reasonably possible, any potential for Student A to abscond on a further occasion from the ASD Unit. Ms. Z gave evidence that she engaged in a consultation process with a wide range of stakeholders, including the school’s Autism Liaison Officer, the Special Education Inspectorate of the Department of Education and the School’s insurers in terms of putting a viable solution in place (albeit that this process did not include consultation at that juncture with the parents of students in the ASD Unit – I will address this issue further in my conclusions on the issue of “reasonable accommodation”). I have taken into account Ms. Z’s evidence that she consulted with a number of other schools with ASD Units (within her Network of Principals) and that four of the five schools she consulted with had a similar locking mechanism in place on their respective ASD Units. This process of consultation concluded with the decision by the school’s Board of Management to install the magnetic locking system on the ASD Unit to address the serious situation that had arisen. It is clear that this decision was not taken lightly by the respondent and I accept the respondent’s evidence that there were sufficient staffing resources in place to adequately supervise the five students in the ASD Unit following the installation of the magnetic locking system.

4.9 The complainant has claimed that his son, Mr. Y, was caused to suffer extreme anxiety as a result of the introduction of the “lockdown system” and this anxiety had a clear detrimental effect in the manner in which his educational needs were met by the respondent. This evidence was strongly refuted by the respondent who submitted that at no time did Mr. Y exhibit increased levels of anxiety in school following the installation of the magnetic locking system. Ms. Z gave evidence regarding the wide range of measures and strategies which the respondent had put in place to manage Mr. Y’s anxiety and that staff in the ASD Unit were not alerted to any levels of increased anxiety in him following the introduction of the magnetic locking system. I have considered the psychological reports carried out on Mr. Y which were submitted in evidence by the complainant (one of which was completed in 2010 prior to the installation of the locking system and the other which was completed in September, 2012 subsequent to this event). I am satisfied that neither of these assessments would support a conclusion that Mr. Y’s anxiety levels were increased or exacerbated as a result of the installation of the magnetic locking system on the ASD Unit.

4.10 Having regard to the totality of the evidence adduced, I am satisfied that the installation of the magnetic locking mechanism on the ASD Unit did not amount to a discriminatory measure against the complainant’s son, Mr. Y, on the grounds of his disability but rather it was proportionate and reasonable action by the respondent in terms of putting a viable solution in place to address the extremely serious set of circumstances that arose within the Unit at that juncture. I have not been presented with any evidence from which I could reasonably conclude that the installation of the locking system diminished or adversely affected in any way the level of educational services which the respondent provided to the complainant’s son, Mr Y, or indeed any of the other four students that attended the ASD Unit. Accordingly, I find that the respondent has succeeded in rebutting the inference of discrimination in relation to this element of the complaint.

Section 7(4)(b) of the Equal Status Acts

4.11 Section 7(4)(b) of the Equal Status Acts which provides as follows:

“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”

This section provides that an educational establishment cannot be held to have discriminated against a student with a disability in terms of the provision of its services in circumstances, whereby the provision of services to that person, by virtue of his/her disability, would make it impossible or have a seriously detrimental effect on the school’s capacity to provide educational services to other students. The respondent submitted that it was entitled to rely upon this exemption as a defence to the alleged discrimination in the present case in terms of the installation of the magnetic locking system in the ASD Unit. The complainant disputed the respondent’s position that it could avail of this defence in the circumstances of the present case and submitted that this provision could only be invoked as a defence to a claim of discrimination against Student A (and not the complainant, Mr. Y, in the present case) as this student was the person whose behaviour was allegedly having a detrimental effect on the provision of education to other persons. The complainant submitted therefore that this provision cannot be relied upon by the respondent as a defence to the claim of discrimination in the present case.

4.12 As I have already found that the respondent has succeeded in rebutting the inference of discrimination in relation to this aspect of the claim, I am therefore not obliged to consider any defence that the respondent may or may not have been entitled of avail of in terms of the provisions in section 7(4)(b) of the Acts.

Reasonable Accommodation

4.13 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 provisions contained within this section of the Acts require the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". In the context of the present complaint, the respondent is obliged under section 4 of the Acts to show that it did everything it could reasonably do to accommodate the special needs of Mr. Y, as a person with a disability, by providing special treatment or facilities in terms of the installation of the magnetic locking mechanism on the ASD Unit.

4.14 The complainant, Mr. X, has submitted that the respondent failed to carry out an adequate risk assessment or to consult with the parents of the students in advance of the installation of the magnetic locking system in the ASD Unit and therefore, that this amounts to a failure to provide reasonable accommodation within the meaning of section 4 of the Acts. The respondent denies that it failed to provide the complainant’s son, Mr. Y, with reasonable accommodation within the meaning of section 4 of the Acts and it submitted that it put in place an extensive range of special measures and facilities in order to accommodate his special educational requirements.

4.15 In considering this issue, I note there was no suggestion or evidence presented by the complainant, Mr. X, that the special measures or facilities which the respondent had put in place to accommodate the special needs of his son, Mr. Y, prior to the installation of the magnetic locking system on the ASD Unit were in any way deficient or lacking. On the contrary, it is clear from the evidence adduced in this case that the respondent had, in fact, put in place a significant number of special measures and facilities to accommodate Mr. Y’s special needs up to that juncture including providing him with access to the ASD Unit, the implementation of an Individual Education Plan (IEP) and 40 minutes a day of one to one time with a teacher in a resource room.

4.16 The difficulties with Student A absconding from the ASD Unit occurred during the academic year 2010/11 (i.e. before the summer holidays in July, 2011). Ms. Z gave evidence that she subsequently engaged in an extensive process of consultation with a wide range of stakeholders in terms of putting a solution in place to address this situation. This process of consultation included interaction with a wide range of stakeholders including the school’s Autism Liaison Officer, the Special Education Inspectorate of the Department of Education and the School’s insurers before the decision was ultimately taken by the school’s Board of Management to install the magnetic locking system in November, 2011. The respondent accepts that the parents of the students in the ASD Unit were not included in this process of consultation prior to the installation of the magnetic locking system. Ms. Z gave evidence that she was experiencing a huge amount of stress as a result of the difficult situation that presented and she was focussed on trying to put a satisfactory solution in place to address this situation. Ms. Z indicated that she didn’t think that any of the parents would have had a difficulty with the installation of the locking system as a means of addressing the difficulties that arose.

4.17 I note that the respondent arranged a meeting with the parents of students in the ASD Unit in March, 2012 to discuss the magnetic locking system following the concerns that had been raised by Mr. X in relation to the issue. At this meeting there was vote among the parents on the use of the locking system and two parents were in favour and two against (including the complainant, Mr. X). Ms. Z gave evidence that the respondent subsequently decided to install magnetic locks on all external doors of the school and as a result there was no further requirement to use the magnetic locking system in the ASD Unit. In the circumstances, I am satisfied that the respondent took appropriate action to address the parental concerns about the locking system following this meeting.

4.18 Having regard to the relevant extracts from the minutes of meetings of the Board of Management from around that period which were adduced in evidence, it is clear that the decision to proceed with the magnetic locking system was the subject of much consideration and deliberation by Ms. Z and the school’s management. I accept the respondent’s evidence that it was not obliged by statute to consult with the parents of the students concerned in relation to this matter and that there were no written guidelines or procedures from the relevant State Authorities on how to deal specifically with this matter. Accordingly, I find that the respondent’s failure to consult with the complainant, Mr. X, prior to the installation of the magnetic locking system on the ASD Unit did not amount to a failure to provide reasonable accommodation to his son, Mr. Y, within the meaning of section 4 of the Acts.

4.19 The complainant has also submitted that the respondent failed to carry out a proper risk assessment prior to the installation of the magnetic locking system and it is claimed that this amounted to a failure to provide reasonable accommodation to his son, Mr. Y, contrary to section 4 of the Acts. The respondent also refutes this claim and submitted that the locking system was reviewed by a fire officer and health and safety officer and that both officers were satisfied the system complied with health and safety requirements. Having regard to the evidence adduced, I am satisfied that the respondent engaged the professional services of a fire officer and a health and safety officer to inspect the magnetic locking system. I accept that these inspections were carried out subsequent to the installation of the system. However, having considered both reports I am satisfied there is no evidence from which I could reasonably conclude that the installation of the system posed a risk to the health and safety of the complainant’s son or the other students who attended the ASD Unit. Having regard to the foregoing, I find that the respondent’s failure to carry out a risk assessment prior to the installation of the magnetic locking system did not amount to a failure to provide reasonable accommodation to his son, Mr. Y, within the meaning of section 4 of the Acts.

4.20 In considering the issue of reasonable accommodation under section 4 of the Acts, I have taken note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council[1], Judge Hunt J. considered the concept of reasonableness in the context of that section of the Act. Hunt J. stated:

" … reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all of the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…...... All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it [my emphasis]...”

In applying the reasoning of Hunt J. in the abovementioned “Deans” case, I take the view that “reasonableness” in the context of the present complaint placed an obligation upon the respondent to put in place a reasonable solution to address the extremely serious situation that had arisen in terms of Student A absconding from the ASD Unit which would prevent this situation from re-occurring on a further occasion. I find that the solution which the respondent put in place following an extensive period of consultation and deliberation was reasonable in the circumstances. Accordingly, I find that the respondent did not fail in its obligations to provide special measures and facilities to Mr. Y, as a person with a disability, within the meaning of section 4 of the Acts in the context of the present complaint.

Section 4(4) of the Equal Status Acts

4.21 The respondent contends that it is entitled to rely upon the provisions of section 4(4) of the Equal Status Acts as a defence to the claim that it failed to provide reasonable accommodation to the complainant’s son, Mr. Y, within the meaning of section 4 of the Acts. Section 4(4) of the Acts provides as follows:

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

The complainant has argued that this defence could only be relied upon by the respondent if it was being invoked as a defence to a claim of discrimination by Student A (i.e. the student whose difficult behaviour led to the installation of the installation of the magnetic locking system) and therefore, that this defence cannot be used in the context of the present claim. As I have already found that the respondent did not discriminate against the complainant contrary to section 4 of the Acts, I am therefore not obliged to consider any defence that the respondent may or may not have been entitled of avail of in terms of the provisions in section 4(4) of the Acts. Accordingly, I find that this element of the complaint fails.

Discrimination by Association

4.22 The final element of the complaint that I must consider relates to the claim by Mr. X that he was subjected to discrimination by the respondent on the ground of disability by association, as the father of a child with a disability. Mr. X claims that after he had raised concerns with the respondent about the installation of the lockdown system that both he and his wife were denied access to the ASD Unit unless they were supervised by a teacher. Mr. X submitted that the parents of other pupils in the ASD Unit were not subjected to such a requirement and that the respondent failed to provide them with an explanation for the requirement to be supervised despite requesting clarification at several meetings. The respondent totally refuted this claim and Ms. Z gave evidence there were a number of occasions where Mr. X and/or his wife had gone to the ASD Unit unannounced and taken up a disproportionate amount of the teacher’s time. Ms. Z gave evidence that she decided thereafter to accompany Mr. X and his wife on their visits to the ASD Unit in order to address this issue.

4.23 Having regard to the totality of the evidence adduced, I am satisfied the reason why Ms. Z decided to accompany Mr. X and his wife on visits to the ASD Unit was not in any way connected to the fact of his son’s disability but rather it was directly attributable to issues that arose regarding the amount of the teacher’s time that they were taking up on visits to the ASD Unit. Therefore, I find that the complainant has failed to establish a prima facie case of discrimination by association on the ground of disability. Accordingly, this element of his claim fails.

5. Decision

5.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:

· I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts and that the respondent has succeeded in rebutting the inference of discrimination. Accordingly, I find that this element of the complaint fails.

· I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of sections and 4(1) of the Equal Status Acts. Accordingly, I find that this element of the complaint fails.

· I find that the complainant, Mr. X, has failed to establish a prima facie case of discrimination on the ground of disability contrary to section 3(1)(b) of the Equal Status Acts. Accordingly, I find that this element of the complaint fails.

Enda Murphy

Equality Officer

18th December, 2014

'Footnote'

[1] Circuit Court judgement delivered by Judge Hunt on 15th April, 2008 in the case of Dublin City Council –v- Grace Deans