EQUAL STATUS ACTS
DECISION NO. DEC-S2016-030
PARTIES
Majella Frizzell
-v-
Oliver Hughes (for Department of Education and Skills)
(Represented by Cathy Maguire BL
instructed by the Chief State Solicitor’s Office)
File reference: et-150381-es-15
Date of issue: May 2016
1. Background to the Claim
1.1 The complainant referred a complaint, on behalf of her daughter, to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 28th October 2014. On 15th March 2016 in accordance with Section 41 of the Workplace Relations Act 2015 and Part VII of the Employment Equality Acts 1998 to 2012 and the Equal Status Acts 2000 to 2004 this case was delegated to me, Joe Donnelly, an Equality Officer / Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant powers and functions of the Director under Part III of the Equal Status Act on which day my investigation commenced. As required by Section 25(1) and as part of my investigation I proceeded to hearing on 29th March 2016.
1.2 This decision is issued by me, following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that her daughter is being discriminated against by the above named respondent on the disability grounds in terms of Section 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Acts in relation to access to a service which is generally available to the public.
3. Summary of the Complainant’s Case
3.1 The complainant’s daughter is an eight year old girl who presents with Autism Spectrum Disorder (ASD) and a speech and language disorder.The child is attending a National School (RNS) in Co. Sligo where there is an ASD unit. She has a concessionary school transport pass which requires the mother to drive her daughter to the pick-up point which is 22 kms. from their home. The Department of Education and Skills state that in order to qualify for a full travel pass a pupil must attend the nearest school that is resourced to meet their special needs and that this is in a National School in Co. Mayo (SNS). There is no place available at present in SNS for the daughter. She is making progress in RNS and medical opinion supports her continued attendance at that school. The present arrangements place significant stress on the family both in terms of time and expense. They have a son who is attending another school.
3.2 There had been a similar complaint made to the Equality Tribunal in 2013 which had been the subject of mediation in January 2014. There was an agreement that the daughter would receive transport from and to her home for the remainder of that school year. The parents’ clear understanding was that the agreement was specific to that school year. The arrangement ceased in June 2014.
4. Summary of the Respondent’s Case
4.1 The complainant referred a claim in this regard to the Tribunal in 2013 and entered into a full and final settlement of that claim in January 2014. She is therefore estopped from pursuing this claim.
4.2 The claimant has failed to name a comparator and has also failed to make a stateable case that her daughter has been treated less favourably than another person in similar circumstances has been or would be treated on the grounds that she has a disability or a particular disability.
4.3 The complainant’s daughter is not eligible for school transport to RNS because, at the time of her enrolment, it was not the nearest school available resourced to meet her special needs.
4.4 It is irrelevant that there was no place available in SNS in subsequent years.
4.5 As the complainant’s daughter is not eligible for school transport she may apply to avail of it on a concessionary basis subject to certain conditions attaching to same. She is subject to these conditions not because she has a disability but because she is not eligible under the rules of the scheme.
4.6 Among the conditions of the concessionary travel scheme are the provisions that routes will not be altered, larger vehicles or longer trips will not be provided, no additional cost will be incurred and the appropriate annual charge will apply.
5. Conclusions of the Adjudication Officer
5.1 The complainant named an official of the Department as the respondent in the complaint form. The appropriate respondent is the Minister for that Department. The Minister has consented to being substituted for the official as the respondent in this case.
5.2 The respondent raised the preliminary issue that the complainant had previously submitted a claim to the Equality Tribunal and had settled that claim by way of agreement and was therefore estopped from pursuing the present claim.
5.3 On 28th January 2014 the complainant and her husband signed a document which was a Mediation Agreement under the Equal Status Acts between the complainant and the respondent. The relevant points of the Agreement read:
“The respondent will arrange that Bus Eireann will collect D from her home in the morning and drop her off at her home in the afternoon. This arrangement will remain in place until the end of the current school year (2013-2014). The arrangement will commence Monday 4th February 2014.
The complainant accepts that the terms of this agreement are in full and final settlement of the complaint….above.”
5.4 The complainant stated that during the mediation process she submitted the name of another child who attended the same school and who was being provided with transport from and to his home. The respondent’s response at that time was that this was due to an administrative error and because of that they were prepared to extend the facility to the complainant’s daughter for the remainder of that school year. The claimant was of the belief that the Agreement was specific to that year only. In September 2014 the daughter reverted to concessionary travel.
5.5 I have considered the legal arguments put forward by the respondent and in particular the precedent cases including Irish Life v Healy (Labour Court) and Mulrooney v Shee & Othrs (Supreme Court). I have also had regard to other cases such as Hurley v Royal Yacht Club (Supreme Court) and Kerrigan v Smurfit Kappa (EAT). I believe that the full criteria for informed consent on the part of the claimant as set out in the latter two cases was absent at the time that the Agreement was signed. Given the time and effort invested by the claimant in this matter it would be inconceivable that she would have accepted six month’s transport as being the total solution. In these circumstances I find that the complainant is not estopped from proceeding with her claim.
5.6 I now must consider the substantive issue. It is certified and accepted that the complainant’s daughter has Autism Spectrum Disorder and has speech and language disorder. I am satisfied that this constitutes a disability within the meaning of the Acts.
5.7 Section 38(A) of the Equal Status Acts 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 / she can rely in asserting that prohibited conduct has occurred in relation to him / her. In deciding on this complaint, therefore, I must consider whether the existence of a prima facie case has been established by the complainant. 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 oral and written submissions made by the parties.
5.8 Section (3)(1)(a) of the Act 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)(1) provides: “as between any two persons, the discriminatory grounds…are…(g) that one is a person with a disability and the other is not or is a person with a different disability (the disability ground).”
5.9 The complainant made reference to the other child who the respondent acknowledged had received different treatment in 2013/14 due to “an administrative error”. Evidence was given that the other child’s circumstances have since changed and the arrangements have also changed such they are no longer comparable with regard to this complaint.
5.10 The respondent operates a scheme which is entitled School Transport Scheme for Children with Special Educational Needs Arising from a Diagnosed Disability. This sets out the various criteria for eligibility for school transport. Paragraph 3 of the scheme states that children are eligible for transport where they “have special educational needs arising from a diagnosed disability in accordance with the designation of high and low incidence disability set out in Dept. of Education and Skills (DES) Circular 02/05…and….are attending the nearest recognised mainstream school, special class / special school or a unit that can be resourced, to meet their special educational needs.”
5.11 On 22nd March 2012 the complainant filled in an application form for this scheme naming SNS as the child’s school. It is not contested that this geographically is the nearest school although the parents point out that it is in a different county. In the event a decision was made not to send the child to school at that time.
5.12 On 30th April 2013 the complainant filled in another application form for the scheme this time naming RNS as the child’s school. Four weeks later she wrote a letter in support of this application. In the letter the complainant stated “D would be entitled to free transport in SNS autism unit as it is the nearest autism unit to us but we as parents feel D will progress better in RNS.”
5.13 On 17th October 2013 the respondent replied to the application stating that as RNS was not the nearest school resourced to meet the child’s special educational needs D was not eligible for the school transport scheme. The letter also advised that the complainant could apply for transport on a concessionary basis as per the conditions of the scheme.
5.14 Paragraph 9 of the scheme deals with the criteria for Concessionary Transport. Amongst these are that there must be an existing service with spare capacity and that routes will not be altered or extended. In addition the appropriate annual charge must be paid. In essence this requires the child concerned to travel to where the bus runs rather than being collected. It is this service that is presently being utilised by the complainant’s daughter.
5.15 On 3rd July 2014 the Principal of SNS confirmed that there were no places now available in that school for the complainant’s daughter and that they had a waiting list. On 31st July 2014 the respondent wrote to the complainant stating that her daughter was not eligible under the scheme but that she would be accommodated on the concessionary basis and provided details of same.
5.16 It is not within my remit to adjudicate on the actual interpretation of the criteria of the scheme and in particular, in this case, as to what constitutes the school of first enrolment. The question that is before me is whether, in operating the scheme, the complainant’s daughter was treated less favourably than a person with no disability or with a different disability. In this regard I have examined the criteria of the School Transport Scheme for children without a disability. That scheme applies to children attending “their nearest national school as determined by the Department / Bus Eireann…” In addition they must reside at least a certain distance from that school. For children who don’t qualify for the scheme there is the possibility of concessionary travel on the same basis as outlined in Paragraph 5.14 above.
5.17 Having regard to the foregoing I am not satisfied that the complainant has established that her daughter was treated less favourably than a child without a disability as both schemes contain the proviso that, in order to avail of regular school transport, the child concerned must attend the nearest appropriate school. In addition the scheme that is the subject of the complaint is a scheme for children with special needs arising from a diagnosed disability and is operated in conjunction with the National Council for Special Education through its network of Special Education Needs Organisers. I am not satisfied that the complainant has established that her daughter was treated less favourably than a child with a different disability. I therefore must find that the complainant has failed to establish facts from which it may be presumed that prohibited conduct occurred.
5.18 As stated above, a dispute about the interpretation of the scheme is outside my remit. I note in particular Paragraph 10 of the scheme which lays out the procedure whereby appeals against the process regarding the provision of school transport service can be examined by the School Transport Appeals Board and ultimately by the Ombudsman for Children, bodies which would have the necessary expertise to examine complaints and interpret the criteria set out in the scheme.
6. Decision
In accordance with Section 25(4) of the Equal Status Acts I conclude my investigation and issue the following decision.
I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground contrary to Section 5(1) of the Equal Status Acts.
Accordingly the complaint fails.
____________________
Joe Donnelly
Adjudication Officer/Equality Officer
May 2016