EQUALITY OFFICER'S DECISION NO: DEC-S/2015/013
PARTIES
Ms. X (on behalf of her son, Y)
-V-
The Minister for Education and Skills
FILE NO: ES/2013/0040
Date of issue: 4TH of September, 2015
1. Dispute
1.1 This dispute involves a claim by Ms. X on behalf of her son, Y
that he was discriminated against by the Minister for Education and Skills, on grounds of religion, contrary to section 3(1)(c) & (3)(2)(e) of the Equal Status Acts, 2000-2012 when a decision was made to reduce the level of State funding available to fee charging schools. It is submitted that this reduction in funding for private schools had a disproportionate effect on the complainant as a person of the Quaker religion in relation to his access to education.
2. Background
2.1 The complainant Ms. X referred a complaint on behalf of her son under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 25th of April, 2013. The complainant who is being brought up as a Quaker has only one option in relation to attendance at a Secondary school of his religion as there is only one secondary school of this religion in the South of Ireland. The school in question is a fee paying school and the salaries of its teachers were funded by the state at the ratio of 21 pupils to 1 teacher. A decision was made by the Minister in December 2012 to decrease this funding and thereby increase the pupil to teacher ratio to 23:1, from September 2013. This is in comparison to free schools where the State pays teachers salaries on a ratio of 19:1. It is submitted that this decision has a disproportionate effect on the complainant as a member of the Quaker religion who due to his religion only has the option of attending one secondary school which is a fee paying one.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2012, the Director delegated the case on 28th of January, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2012. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 31st of April, 2015.
3. Summary of complainant’s case
3.1 The complainant is being brought up as a Quaker and as such has only one option in relation to attendance at a Secondary school of his religion, as there is only one secondary school of this religion in the south of Ireland (and 2 in total in the Republic of Ireland).
3.2 The school in question was a fee charging school and the salaries of its teachers were up to September 2013, funded by the state at a ratio of 21 pupils to 1 teacher. A decision was made by the Minister to decrease this funding and thereby increase this ratio to 23:1, in September 2013. This is in comparison to free schools where the State pays teacher’s salaries on a ratio of 19:1.
3.3 It is submitted that this decision to increase the pupil to teacher ratio at fee charging schools has a disproportionate effect on the complainant as a member of the Quaker religion who due to his religion only has the option of attending one secondary school which is a fee charging one.
3.4 It is submitted that the complainant as a Quaker should be entitled to have his secondary education funded to the same extent as a child attending any other secondary school of their faith in either the free sector or the fee paying sector.
3.5 It is submitted that children of other religions have access to secondary education with a teacher to pupil ratio of 19:1 in the free system as opposed to the complainant whose secondary school only receives funding for teachers on a ratio of 23:1 following the Ministers decision.
3.6 It is submitted that this reduction in funding for teachers has the effect of reducing the number of subjects taught at Leaving Cert level at the complainant’s secondary school and it is submitted that a wide subject choice is fundamental to the Quaker religion and ethos and its approach to education.
3.7 It is submitted that the complainant is therefore forced to be taught in classes with larger numbers of children and therefore receive less individual attention than he would in a free school.
3.8 The complainant advised the hearing that as a result of the funding cuts the school was forced to enter into the free schools scheme in September 2014 and has since received funding at the same levels as other schools in the free scheme which is at a pupil to teacher ratio of 19:1.
4. Summary of Respondent’s case
4.1 The respondent submits that an announcement in the December 2012 budget indicated that a two-point increase in the pupil to teacher ratio in fee paying schools was to be introduced in September 2013. Prior to this the State paid the salaries of 1 teacher to every 21 pupils in the fee paying schools compared to one teacher for every 19 pupils in the free education scheme.
4.2 It is submitted that in December 2011, as part of the Budget the Minister announced that an analysis of fee income in the 55 fee charging schools would be carried out. This was to inform future policy decisions about the nature and extent of exchequer funding provided to fee charging schools. This report was published in March 2013. The report shows the funds available to these schools through charging fees was €81 million in discretionary income which is not available to secondary schools in the Free Scheme. These schools have the resources through fees charged, to employ teachers privately.
4.3. It is submitted that the Minster has acknowledged that by making these changes to the funding available to fee paying secondary schools he was able to avoid further changes to the pupil-teacher ratio in all free primary and post-primary schools.
4.4 It is submitted that the decision of the Minister to cut funding and increase the pupil to teacher ratio in fee charging schools from 21:1 to 23:1 applied to all fee charging schools irrespective of their religion.
4.5 It is submitted that following all of the budget changes made to date in the education sector there has been a reduction of approximately 120 teaching posts in the fee charging sector since 2008. By contrast the free primary and post primary sectors have lost over 4,000 teaching posts in the same period.
4.6 It is submitted that €6.5 million of exchequer funding is provided to support the
Protestant Block Grant Scheme which is a means tested student support scheme to enable students from Protestant or Reformed Church families to attend a school whose ethos accords with their faith tradition. This grant can be used by the student to help pay boarding costs and/or tuition fees where the recipient attends a fee charging school.
4.7 It is submitted that the Department is open to having discussions with any fee charging school which may be considering how best to continue to provide education to its pupils.
4.8 If a fee charging school decides to enter the free scheme, the Department will assist it with that transition.
4.9 It is submitted that the named school in question did opt to enter the free scheme in September 2014 and thus the effect of the decision to reduce funding and increase the pupil to teacher ration was no longer an issue.
5 Preliminary issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
5.1 The respondent has submitted that the Minister is not a service provider within the meaning of the Equal Status Acts and that consequently the Equality Tribunal has no jurisdiction to hear this complaint. It submits that the role of the Minister is in the provision of monies for the provision of services but that the Department does not actually provide the service.
5.2 It is submitted that it is a function of the Minister to determine annual funding to be provided to the various classes of recognised schools within the school system. It is submitted that this complaint call into question the Ministers power to allocate monies to the different classes of recognised schools and that the Equality Tribunal does not have jurisdiction in relation to these matters. While this issue was raised in the respondent’s submission, it was not argued at the hearing, having said that, as the matter has been raised I will deal with it as a preliminary issue.
5.3 The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2012. I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts.
5.4 In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which states that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and Section 7(2)(a)&(b) which provide that it “shall be a function of the Minister
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;
(b) to monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education, having regard to the objects provided for in section 6 and to publish, in such manner as the Minister considers appropriate, information relating to such monitoring and assessment;
5.5 Section 7 of the Equal Status Acts defines what is meant by an “educational establishment” and while it is clear that the respondent is not an educational establishment within the meaning of section 7 of the Acts, it is equally clear that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do constitute a service within the meaning of Section 2 of the Equal Status Acts. “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts. Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.
5.6 In considering this issue I have taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science DEC-S2009-016 in which this very issue was decided upon. In that case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts, 1998, he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State. I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” .
5.7 In the present case it is the Statement of Strategy for 2015 to 2017 which is relevant and in it, the Department again identifies itself as a ‘provider of services’. It identifies the following as one of its high level goals
“We want to provide for the delivery of a high quality education and training experience for everyone and improve accountability for educational outcomes across the system”
In addition, the Departments Mission and Vision is stated as
Our Mission
To facilitate individuals through learning, to achieve their full potential and contribute to Ireland’s social, cultural and economic development
Our Vision
An internationally recognised education and training system based on evidence informed policies designed to anticipate and respond to the changing needs of learners, society and the economy
Also, the Department in its Customer Charter gives the following commitment
We are committed to providing our customers with a quality service in an efficient, effective and timely manner. Our actions are guided by the twelve Quality Customer Service Principles set by government. In this context we will:
· Provide information in a user-friendly format on all of our services and schemes.
· Offer assistance to our customers in order to help them understand our services and schemes.
· Set real and achievable targets for service delivery which will meet the expectations of our customers.
· Measure our performance against those targets and publish the results in our Annual Report.
5.8 In considering this matter, I concur with the findings of the Equality Officer on this issue in the aforementioned case. Having taken the contents of the Education Act into consideration, in addition to the Departments Statement of Strategy and Mission as well as the Customer Charter ), I am satisfied that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2012 . Accordingly, I therefore find that respondent is a “service provider”, within the meaning of the Equal Status Acts, 2000 to 2012.
5.9 Furthermore, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegation of discrimination which has been made by the complainant in the present case.
6. Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of religion in terms of sections 3(1)(c) & 3(2)(e) of the Equal Status Acts, 2000 to 2012 in relation to the decision to reduce state funding for teachers in fee charging schools from a pupil to teacher ratio of 21:1 to 23:1 in September, 2013. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Religion Ground
6.2.1 Section 3(2)(e) of the Acts defines the discriminatory ground of religion as follows – “as between any two persons ….. that one has a different religious belief from the other or that one has a religious belief and the other has not ..… “
6.2.2 It is submitted that the complainant in the present case has been brought up as a Quaker.
7. Indirect Discrimination
7.1 Indirect discrimination is defined in Section 3 (1) (c) of the Acts as:-
"where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) [i.e. covered by one of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".
7.2 The complainant claims that reducing the funding available to fee charging schools and increasing the pupil to teacher ratio from 21:1 to 23:1 indirectly discriminates against him on grounds of religion. The religion ground covers those of a different religious belief ….… . It is for the complainant to prove, on the balance of probabilities, that this criterion puts the complainant as a Quaker at a particular disadvantage. If he succeeds in this, the burden of proof shifts to the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
7.3 Under section 3 (3A) of the Acts, the complainant can use statistical data as an evidential tool to prove a particular disadvantage and so shift the burden of proof. It is possible to establish a case where statistics are inadequate or non-existent, if the complainant can prove that a provision is intrinsically liable to affect his group [in this case persons of the Quaker religion] more than persons of a different religion and there is a consequent risk that it will place his group at a particular disadvantage. It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of persons of the Quaker religion. It is sufficient that it is liable to have such an effect.
7.4 Once the complainant has proved that the criterion puts a child of a different religion at a particular disadvantage, it is for the respondent to prove that the criterion is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. The respondent must prove each element of the defence [objective justification, legitimate aim, appropriateness and necessity].
7.5 The complainant submits that the decision of the Minister to cut the level of funding and increase the pupil to teacher ratio in fee charging schools is indirectly discriminatory to him as a person of the Quaker religion. The complainant submits that as a Quaker there is only one Secondary school of his religion in the South of the country and that this school is a fee charging school.
7.6 It is clear that the majority of schools in the free secondary school system in this country are Catholic schools. At the time of the complaint there were approximately 725 non fee paying secondary schools and 55 private secondary schools which were fee charging schools. Of these 55, 20 were minority religious ethos schools, 2 of which were Quaker ethos schools.
7.7 It is thus clear that a decision to cut the amount of funding available to the fee charging schools is a decision which affects the complainant as a Quaker and a member of a minority religion more than others who can attend schools in the free school system. The complainant is submitting that as a Quaker he is affected by the decision in relation to fee charging schools more than others of a different religion.
7.8 It is submitted that the complainant as a Quaker does not have the option of attending a school in the free system due to his religion. It is submitted that the named school is the only Secondary school in the South of the country which is run by Quakers. There is another school in Co. Louth which is run under a Quaker ethos but is also a fee charging school.
7.9 Ms. X advised the hearing that the complainant was disadvantaged due to the fact that he is a member of the Quaker religion and as such only has the option one secondary school of his religion which is a fee paying one. She went on to state that the complainant as a Quaker should be entitled to have his secondary education funded to the same extent as a child attending any other secondary school of their faith in either the free sector or the fee paying sector.
7.10 Ms. X stated that children of other religions have access to secondary education with a teacher to pupil ratio of 19:1 in the free system as opposed to the complainant whose secondary school only receives funding for teachers on a ratio of 23:1 following the Ministers decision. Ms. X advised the hearing that this reduction in funding for teachers had the effect of reducing the number of subjects taught at Leaving Cert level at the complainant’s secondary school and it is submitted that a wide subject choice is fundamental to the Quaker religion and its approach to education.
7.11 Ms. X stated that the complainant was now forced to be taught in classes with larger numbers of children and therefore receive less individual attention than he would in a free school.
7.12 Ms. X advised the hearing that all aspects of the complainants education have suffered due to this reduction in funding, as money which would otherwise be used for general maintenance and repairs to school buildings etc. has had to be diverted to subsidise teacher’s salaries to make up for the shortfall in State funding. It is submitted that the school has fallen into disrepair and shabbiness due to this lack of funding.
7.13 Ms. X stated that extra curricular activities such as the school orchestra has also suffered due to the lack of funds available.
7.14 In reply to the respondents statement that private schools receive more discretionary funding than free schools and so this can be used to provide the extra funding to maintain the current teacher to pupil ratio. The complainant stated that this discretionary funding comes from donations from parents of school pupils and stated that it is equally/also open to parents of children in free schools to provide such discretionary funding to those schools and therefore subsidise the teachers salaries in free schools.
7.15 The complainant advised the hearing that as a result of the funding cuts the school was forced to enter into the free schools scheme in September 2014.
7.16 Having examined the evidence, I am satisfied that the complainant has demonstrated that he was disadvantaged by an apparently neutral provision on account of his religious beliefs. Therefore, the complainant has established prima facie evidence of discriminatory treatment in relation to the Ministers decision to reduce State funding to fee charging schools and increase the pupil to teacher ratio in those schools to 23:1. Thus I am satisfied, from the totality of the evidence adduced, that the complainant has established a prima facie case of indirect discrimination on the ground of religion which the respondent must now rebut.
7.17 In case of indirect discrimination even if it is established that the class of applicant in to which the Complainant falls is particularly disadvantaged by an apparently neutral policy then the issue arises as to whether the particular policy complained of
Justifies a legitimate aim
Is appropriate, and
Is necessary
8 Legitimate aim
8.1 It was submitted by the respondent that the aim of this policy was to reduce public sector spending on education while promoting fairness in funding second level schools. It is submitted that it was part of an overall policy to reduce public expenditure across all areas of public provision and that teacher allocation to all primary and secondary schools has been and will continue to be in focus in this regard.
8.2 The respondent advised the hearing that the decision to increase the pupil to teacher ratio in fee charging schools was just one of a number of measures introduced to reduce exchequer spending in relation to schools. It is submitted that between 2009 and 2013, following Budget changes made in the education sector, there has been a reduction of approximately 120 teaching posts within the fee charging sector. By contrast, the free primary and post primary sectors have lost over 4,000 teaching posts in the same period. It is submitted that the changes made in relation to fee charging schools in Budget 2013 were in order to promote fairness in funding second level schools given that this sector had €81 million in discretionary income available to it as a result of fee charges.
8.3 The respondent in the present case advised the hearing that many options were looked at and considered and that other changes were made and funding cuts applied to all secondary schools across the board. As an example, witness for the respondent, Ms. G, cited the fact that there was a reduction in guidance counsellors and in post responsibilities across all schools. Ms. G added that supervision payments to teachers were also reduced. She stated that the policy in question was part of an overall policy to reduce public sector costs.
8.4 It is submitted that in December 2011, as part of the Budget the Minister announced that an analysis of fee income in the 55 fee charging schools would be carried out. This was to inform future policy decisions about the nature and extent of exchequer funding provided to fee charging schools. This report shows the funds available to these schools through charging fees was €81 million in discretionary income which is not available to secondary schools in the Free Scheme. It is submitted that these schools have the resources through fees charged, to employ teachers privately.
8.5 It is submitted that the Minster has acknowledged that by making these changes to the funding available to fee paying secondary schools he was able to avoid further changes to the pupil-teacher ratio in all free primary and post-primary schools.
8.6 The respondent advised the hearing that the reduction in state aid to fee charging schools was just one of a number of measures introduced in the Budget of 2013. This is totally transparent. I am satisfied from the totality of the evidence adduced that the aim of the policy does constitute a legitimate aim. I must now however examine whether this aspect of the policy is appropriate and necessary.
9 Is it appropriate and necessary
9.1 The second limb of the test of objective justification is that the respondent must show that the provision was both an appropriate and necessary means of pursuing the legitimate aim. The word ‘appropriate’ means that the measure is suitable for achieving the aim in question and the respondent must show that the provision in fact advances the aim.
9.2 A provision will be ‘necessary’ where there are no alternative, less discriminatory ways of advancing the respondent’s aim. In this regard, the Labour Court in the case of National University of Ireland, Maynooth v Buckley [2011] ELR 324 stated “This would normally require the respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons.” According to Mummery LJ in a UK case, “it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”
9.3 It is submitted that the decision to cut the amount of funding available to fee charging schools was not a decision taken lightly. The Department in its defence referred to a report commissioned by the Minister in December 2011 as part of the 2012 Budget, in which an analysis of fee income in fee charging schools was carried out by the Department of Education and Skills. This Report indicated that the fee income available to the 55 fee charging schools was €81.3 million above that which was available to similarly sized schools in the Free Scheme. This works out at an average of €1.48 million for each of the fee charging schools. It is submitted that this funding allows those fee charging schools to privately fund additional teachers or invest in capital improvements and ancillary activities. This Analysis also considered proposals made in relation to the fee charging sector in the Report of the Special Group on Public Service Numbers and Expenditure Programme (McCarthy Report). The Department also submits that this Analysis looked at the impact which further 1 point or 2 point changes to the pupil to teacher ratio of these schools would have on their funding levels. It is submitted that this analysis was to inform options for the consideration by the Minister in the context of further expenditure reductions being required as part of the budgetary process and how it would affect the education sector over the coming years. This was in order to inform future policy decisions about the nature and extent of exchequer funding provided to fee charging schools.
9.4 The Department advised the hearing that the decision to increase the pupil to teacher ratio in fee charging schools was just one of a number of measures introduced to reduce exchequer spending in relation to schools. It is submitted that between 2009 and 2013 following Budget changes made in the education sector there has been a reduction of approximately 120 teaching posts within the fee charging sector. By contrast, the free primary and post primary sectors have lost over 4,000 teaching posts in the same period. It is submitted that the changes made in relation to fee charging schools in Budget 2013 were to reduce public sector spending on education and to promote fairness in funding second level schools given that this sector had €81 million in discretionary income available to it as a result of fee charges.
9.5 The respondent in the present case advised the hearing that many options were looked at and considered and that other changes were made and funding cuts applied to all secondary schools across the board. As an example witness for the Department Ms. G cited the fact that there was a reduction in guidance counsellors and in post responsibilities across all schools. Ms. G added that supervision payments to teachers were also reduced. She stated that the policy in question was part of an overall policy to reduce public sector costs.
9.6 In examining whether the policy applied is appropriate and necessary I must question whether it is appropriate that the same rule be applied to all applicants in this category irrespective of personal circumstances. It is clear that the policy applied by the respondent allows for no exceptions and treats everyone the same irrespective of their circumstances.
9.7 The Department submits that in its analysis of fee income from fee charging schools it examined the option of exempting the 20 schools traditionally regarded as Protestant fee charging schools from any changes to the staffing schedule that might be introduced and applying the measure to the other fee charging schools only. It is submitted that the report examined the financial impact on such institutions but that this analysis did not provide evidence that the group should be exempted from any measure being applied.
9.8 The Department submitted that it was open to any of the schools who were struggling with the reduced funding to enter into discussions with the Department to enter into the Free Scheme and stated that some of the fee charging schools did opt for this including the named school in question which entered the free scheme in September 2014.
9.9 The complainant at the hearing did not produce any suggestions or other options which could have been used by the respondent to achieve the cited aim of reducing public sector spending on education while promoting fairness in funding second level schools.
9.10 The respondent advised the hearing of other options which were looked at and which were carried out in order to achieve this aim but stated that further savings had to be made. The respondent stated that this measure was looked at in detail and that it was implemented as it was clear that these schools did have €81 million discretionary income available to them from fee charges over and above that available to schools in the free system.
9.11 I am thus satisfied that the evidence produced by the respondent in support of the objective justification test, supports the respondents submission that the policy in question was “appropriate” and ‘necessary ‘ to achieve the aim. The respondent submitted to the Tribunal a copy of the report detailing the analysis of fee income in fee charging schools and this report contains a detailed analysis of fee levels and the effect of a 1 or 3 point decrease in Exchequer funding on the funds available to the schools given that they have a considerable amount of discretionary income available to them from fees which could be used to counteract the effects of the proposed reduction in Exchequer funding available to them.
9.12 I am satisfied from the totality of the evidence adduced on behalf of the respondent that the policy in question is objectively justified by a legitimate aim and is appropriate and necessary. I am thus satisfied that the respondent has rebutted the inference of discrimination raised by the complainant.
10. DECISION OF THE EQUALITY OFFICER.
10.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
10.2 I find that the complainant has proved that the decision by the Minister in September 2013 to decrease State funding to fee charging schools and thereby increase the pupil to teacher ratio from 21:1 to 23:1 put him as a member of the Quaker religion at a particular disadvantage compared with persons of another religion but that the respondent has proved that this policy is objectively justified by a legitimate aim and is appropriate and necessary. Accordingly, I find that
(i) the complainant was not indirectly discriminated against on the religion ground pursuant to sections 3(1)(c) and 3(2)(e) of the Equal Status Acts.
____________________
Orla Jones
Equality Officer
4th of September, 2015