DEC-S2014-016

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2011

Decision DEC–S2014–016

PARTIES

Ms A (on behalf of her son) and on her own behalf

(Represented by Conor Power B.L., instructed by the Equality Authority)

and

Board of Management of a National School

(Represented by Mason Hayes & Curran)

File References: ES/2012/0078 & ES/2012/0079

Date of Issue: 2 October 2014

Keywords: Conditions of participating in education – discrimination – failure to provide reasonable accommodation - disability & family status

1. Claim

1.1. The case concerns a claim by Ms A (hereinafter the complainant) that the Board of Management of a National School discriminated against her son on the grounds of his disability contrary to section 3(2)(g) of the Equal Status Acts 2000 to 2011 and failed to provide him with reasonable accommodation, and that they discriminated against her on the grounds of disability by association and family status contrary to section 3(2)(c) of the Equal Status Acts.

1.2. The complaints were referred under the Equal Status Acts to the Director of the Equality Tribunal on 20 June 2012. On 4 March 2014, in accordance with his powers under S. 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Hugh Lonsdale, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. Submissions were received from both parties and, as required by Section 25(1) of the Equal Status Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 21 May 2014.

2. Complainants’ Submission

2.1. The complainant’s son was born on 14 January 2004 and enrolled in the National School in December 2008. In May 2009 the son had a psychological assessment and was diagnosed with Mild Autism and ADHD. A report from a Senior Clinical Psychologist (Ms B), dated 3 June 2011 stated that the son required the support of a full-time one-to-one Special Needs Assistant (SNA) whilst he is at school. In September 2011 there was a supplementary report by a Behavioural Specialist (Ms C).

2.2. It is acknowledged that from the start of the September 2011 school year the son exhibited challenging behaviour but it is submitted that this behaviour is a direct result of his disability. It appears that at a meeting on 20 September 2011 the Board of Management decided to shorten the son’s school day to one hour. There was a meeting on 28 September to discuss the son between the Principal, Ms B and an Educational Welfare Officer but the complainant was not invited.

2.3. On 29 September the complainant had a meeting with the Principal and her son’s class teacher at which she was informed that her son’s attendance would be reduced to one hour per day from 3 October 2011. During this meeting it was suggested that her son should be home schooled or could find another school. The respondent wrote to the complainant on

3 October 2011 confirming that the time her son would be attending school was being reduced to one hour because of his behaviour. It was stated that he was a health and safety risk to staff and other children.

2.4 The complainant submits that the reduction to one hour was done without proper consultation with her, as the parent, or a doctor. On 7 October 2011 the complainant requested more time before this reduction in hours was implemented but her request was rejected.

2.5 The complainant appealed the decision to the Department of Education & Skills.

2.6 The decision to reduce the hours also caused problems with the sanctioned transport arrangements. This was not resolved until 24 November 2011 and he was then able to return to school.

2.7 Shortly after this the complainant was away in Nigeria for 3 weeks and her son was in good care. However, when the school tried to make contact during this period she was criticised for being away and the respondent reported her absence to a social worker. As a lone parent the complainant contends this action by the respondent amounts to discrimination and/or victimisation.

2.8 On 29 February 2012 the Department of Education & Skills upheld the respondent’s decision. Around this time the son’s hours of attendance were increased to 2 hours per day.

2.9 The complainant submits that her son could have been reasonably accommodated within the specialised environment of the respondent school. His challenging behaviour is a result of his disability.

2.10 The respondent has provided an incident log but the complainant submits this shows a lack of care by the respondent in attending to the son’s needs while knowing of his potential behaviour.

2.11 The complainant submits that her claim on the grounds of family status arises because the respondent was aware that she was a lone parent and principal guardian of the son and it was incumbent on them to engage with her properly and in a time conscious manner to enable her to rearrange her schedule to meet her son’s care needs.

2.12 In September 2012 the complainant removed her son from the respondent school and enrolled him in another school.

3. Respondent’s Submission

3.1. The respondent submits that they had regular contact with the complainant during the 3½ years her son was in the school’s Autism Unit. There was also contact with the son’s clinical support team and planning meetings. Also there was extensive liaison with Bus Eireann regarding the son’s transport to school.

3.2. The respondent submits that no procedure exists within the educational system for a placement review of any child with special needs, nor a procedure to review the ability of a school to cater for the changing needs of any child.

3.3 The respondent submits that the son’s behaviour escalated to the level where the health and safety of the son, other children and teachers became a huge concern for them. They had no choice but to comply with their legal obligations under the Health & Safety Act. The incident log shows the on-going nature of the son’s behaviour which needed 2:1 staffing: that is two members of staff with the son at all times. In July 2011 in a Behaviour Support Plan Ms B recommended a reduction in the son’s School Day. The Behaviour Support Plan was reviewed during July and the first 3 weeks in September but the son’s violent behaviour continued. It became clear that 1 hour was the maximum length of time during which his educational programme could be effectively implemented as it would reduce demands on the son. It was always intended to increase the length of the son’s day in time. In October 2011 there was an Assessment Report.

3.3 On 29 November 2011 there was a review meeting as the son had not attended school since 14 October 2011. In January 2012 his attendance was increased to 2 hours following a further review.

3.4 The respondent submits that in June and July 2012 the son was making good progress and it was planned to further increase his school day in September 2012. The respondent sent a letter to the complainant on 10 July 2012. However, in September 2012 the son did not return to the respondent school.

3.5 The respondent submits that the complainant’s status as a lone mother was not a consideration, except for the challenges she faced in caring for her son.

4. Findings and Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant’s son was discriminated against by the respondent in relation to his disability and if they failed to provide him with reasonable accommodation. Also, if the respondent discriminated against the complainant on the grounds of disability by association and family status. In coming to my decision I have considered all oral and written evidence presented to me by the parties.

4.2 The complainant’s son attended the respondent’s Autism Unit and it is clear that he has a disability within the meaning of section 2 (1) of the Equal Status Acts.

4.3 The alleged discrimination falls under section 7 (2) of the Equal Status Acts which states:

“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 3 (1) which states:

For the purposes of this Act, discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)

In this claim the ground is disability and the complainant must show that her son was discriminated against by comparison with someone who had a different disability or who did not have a disability. In relation to her own claim she must show that she was discriminated by association with her son’s disability and because of her family status, as a single mother.

4.4 The complainant wanted the Behaviour Plan for her son to be fully implemented and therefore claims that the reduction of her son’s attendance to one hour per day, which was not part of the Behaviour Plan, to be discriminatory as it is based on his disability. At the hearing the complainant put forward evidence that her son’s condition would be adversely affected by this reduction in hours at school. This was supported by the evidence given at the hearing by a Psychologist. He also emphasised the benefits of ensuring the family were involved in such decisions.

4.5 The school contends that the son’s behaviour, including violent behaviour, was impacting on the health and safety of the son, other pupils and teachers. His teacher gave evidence at the hearing that he observed the start of the son’s outbursts was getting earlier in the day and this was followed by two hours when he was in an emotional state. It was during this period that particularly disruptive and violent behaviour took place. The respondent contends they implemented the Behaviour Plan as far as they could. However, the son’s behaviour became so disruptive that the Board of Management made a decision to restrict his attendance to one hour based on health and safety grounds. The Chair of the Board of Management gave evidence at the hearing that they sought legal advice which confirmed their duty of care under health and safety legislation. The Board of Management held a meeting on 20 September 2011 and considered a report from the Principal regarding the son’s behaviour. The decision to reduce the hours was made at that meeting. The Principal had a meeting with the complainant on 29 September 2011 to inform her of the decision and the Chair wrote to the complainant on 3 October 2011 to confirm the decision and set out the reasons for reducing the hours of attendance and stating that “it is hoped that it will be possible to increase this time in the future.”

4.6 In evidence at the hearing the chairperson of the Board of Management was clear that the decision was not taken as part of the Behaviour Plan which envisaged that the son should attend for the full school day. The decision was taken on health and safety grounds because of the son’s behaviour. Section 7 (4) (b) of the Equal Status Acts states:

“Subsection (2) does not apply …. 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.”

The High Court in Clare v The Minister for Education and Science, [2004] IEHC 350, stated: “ the school was entitled to balance the rights of Richard and the other students in his (intended) class -- such, on the basis that the facts in the correspondence are true, is not discrimination (Section 7(4)(b) of the Act of 2000).”

4.7 The complainant contends that the only people who the decision affected detrimentally were her son and herself. She contends that the school should have been able to control her son and that they did not put in place all parts of the Behaviour Plan. The respondent gave evidence that the son’s behaviour meant that during the periods of his disruptive behaviour he needed at least two SNAs, which had not been allocated to the son.

4.8 I accept that the respondent made great efforts to accommodate the son within the Autism Unit and to implement the Behaviour Plan but his behaviour meant that they had to consider the health and safety of other students, the staff and the son himself. The principal gave evidence that the alternative to reducing his attendance was to consider suspending the son. The decision to reduce his attendance to one hour was not arbitrary but was based on his teacher’s observations that the son’s disruptive behaviour started after about one hour. It was envisaged that his attendance would be extended when his behaviour improved and this was done the following January. I accept the evidence of the respondent that this would have been extended further if the son had returned to the school in September 2012.

4.9 Taking all the evidence into account I conclude that the respondent made the decision to reduce the son’s hours because they considered his behaviour was having a “seriously detrimental effect on, the provision by an educational establishment of its services to other students” and find their conduct does not amount to discrimination of the son on the grounds of his disability.

4.10 The complainant submitted that the respondent failed to provide her son with reasonable accommodation when they refused or failed to do all that was reasonable to accommodate the son’s needs by providing special treatment or facilities. She contends that the respondent’s failure to make reasonable accommodation is demonstrated by their failure to properly adopt a reasonable education plan for her son and their failure to consult with the appropriate experts or herself before the decision to reduce her son’s hours of attendance was made.

Section 4 of the Equal Status Act provides that, inter alia:

“(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.

4.11 The service or facility that the complainant was seeking from the respondent for her son was attendance for the full school day. The respondent’s evidence is that the son needed at least two SNAs with him. Also evidence was given at the hearing that they cleared a room which was made available to the son when his behaviour deteriorated after his first hour in school. This meant the room was not available for its normal use for other children in the Autism Unit to have movement breaks. It also meant that other children in the son’s class were deprived of their inclusion programme in mainstream classes as no SNA could be made available to accompany them. The respondent considered this situation was unsustainable and the provision of these extra resources was important in reviewing the education provision for the son.

4.12 Section 4 (2) states: “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 respondent contends that they would have had to continue making a room available solely for the son when his behaviour became so disruptive that he needed to be removed from other children. Also, he would have needed two SNAs at all times and three on occasions. They consider this, plus the health and safety factors, to have been an unsustainable draw on their limited resources.

4.13 I accept the respondent’s evidence that the son was being provided with accommodation beyond that provided to any other pupil and this was putting an unreasonable cost on their resources. Accordingly, I find that the son was not discriminated against in the provision of reasonable accommodation.

4.14 The complainant’s complaint of discrimination on the grounds of disability by association and family status is based on the effects of the decision to reduce her son’s hours of attendance on her. In particular the child-care arrangements for her son were disrupted. Also, the provision of transport for her son was, in effect, suspended for some time. She contends these issues were particularly problematic to her as a single mother who was working. She contends that this was emphasised where the respondent, firstly did not involve her in the decision and gave her no opportunity to be part of the consideration of her son’s future. Secondly, they gave her very little notice period to make the necessary arrangements. This led to a break in the transport arrangements which meant that her son missed a period of school of just over a month completely. The respondent contends that the effect of the son’s treatment on the complainant was in no way related to her family status. It is clear that the reduction in hours that the son attended school was disruptive to the complainant however I find that this was not discriminatory to the complainant on the grounds of family status and cannot be deemed to be discrimination by association with her son’s disability

4.15 She also claims that she was discriminated by the respondent when they reported her to a social worker when she was away for three weeks, even though she states she had made good arrangements for the care of her son whilst she was away. The respondent submits that they tried to contact the complainant during this period but were unable to do so and had no notification that the mother was away. At the time the son was very distressed in school and presenting extreme behaviour which they wanted to discuss with the complainant. They considered they had no option but to contact a social worker in the HSE service that supports the Autism Unit. I am satisfied that the contact was made out of concern of the son and was not related to the complainant’s family status and cannot be deemed to be discrimination by association with her son’s disability

5 Decision

Based on all of the foregoing, I find, pursuant to S. 25(4) of the Acts, that:

• the respondent did not discriminate against the complainant on the grounds of disability by association,
• the respondent did not discriminate against the complainant on the grounds of family status,
• the respondent did not discriminate against the complainant’s son on the grounds of disability, and
• the complainant’s son was not discriminated against in relation to the provision of reasonable accommodation

______________________

Hugh Lonsdale

Equality Officer

2 October 2014