DEC-S2016-043

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-043

PARTIES

Mr. & Mrs. O (on behalf of their son S)

-v-

A Secondary School

(Represented by William Egan &Associates, Solicitors)

FILE NO: et-154490-es-15

Date of issue: 14th of June, 2016

1. Dispute

This dispute involves a claim on behalf of the complainant
that he was discriminated against by the respondent, in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2015 on grounds of his disability when he was not allowed to participate in a practical Materials Technology class in the metalwork room without his Special Needs Assistant.

2. Background

2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 19th of March, 2015. The complainant submits that he was refused admission to his metalwork class and that this was due to his disability.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 9th of November, 2015 to me Orla Jones, Adjudicator/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. 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 5th of February, 2016. Final correspondence in relation to this matter was received on the 29th of March, 2016.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 It is submitted that the complainant

· he is a fifteen year old school going child who has a diagnosis of Autism with a co-existing mild intellectual disability,

· he attended junior and senior school in a mainstream school where the school differentiated his academic curriculum in order to facilitate his participation in mainstream class,

· it was felt that his academic needs could best be met in an ASD class or unit attached to a secondary school,

· all secondary schools with such units in his area refused him enrolment for various reasons,

· the complainant’s parents had to undertake a number of Section 29 appeals to gain a placement for the complainant one of these resulted in him being granted a place in the respondents school,

· the complainant’s parents decided that a dual placement in two schools would best meet the complainant’s needs,

· the complainant’s parents became aware that respondent school used SNA’s in teaching the complainant and completing his class assignments for him. Following this the complainant’s parents removed him from the school for a number of months,

· following meetings with the school and intervention from TUSLA it was decided to return the complainant to the respondent school for PE, lunch and practical subjects,

· the complainant returned to school on the morning of the 19th of January 2014 after 3 months of absence,

· the complainant arrived at school for a PE class which he discovered upon arrival had been cancelled, following this his mother brought him home,

· the complainant’s mother returned to the school that afternoon with the complainant and brought him to his metal work class,

· the complainant’s mother left him on the corridor to enter the metalwork room with his peers and returned to her car,

· the complainant’s mother received a phone call from the complainant a few minutes later stating that the teacher Mr. K had told him that he could not participate in class without his SNA,

· the complainant’s mother disputes that the complainant needs an SNA to attend this class and submits that he has no care needs,

· the respondent advised the complainant’s mother that the complainant could not participate without an SNA on “health and safety” grounds,

· the complainant was refused participation in class due to his diagnosis of Autism

· the respondent’s insistence on the complainant being accompanied by an SNA is contrary to inclusive education.

4. Summary of Respondent’s case

4.1 The respondent submits that

· at the time of the complainant’s enrolment in the respondent school there was no ASD Unit within the school,

· the complainant’s initial application for enrolment was refused on the basis that the application was late and that the respondent did not have the expertise, resources or facilities to meet the needs of the complainant,

· after a successful appeal under Section 29 of the Education Act 1998 the respondent was directed to enrol the complainant,

· in preparation to accommodate the complainant’s needs a number of documents/reports were assessed by the respondent including psychological reports from the complainant’s doctors and school reports as well as a report from a Special Education Needs Organiser (SENO),

· from 18th of June 2014 to 19th of January 2015 a number of meetings were held between the complainant’s parents, the school Principal, Ms. M, the Special Education Needs Coordinator (SENCO) Ms. H, Inclusion Ireland, TULSA, Ms. D of the National Educational Psychological Services (NEPS) and with Mr. L, Deputy Principal in order to accommodate and facilitate the needs of the complainant when he started in the respondent school.

· during these meetings the complainant’s parents raised concerns re transport, curriculum differentiation and reduced timetables and indicated a desire to solve these issues through a dual school provision,

· during these meetings it was made clear that dual enrolment is not viable in circumstances where a student can only be enrolled in one school in order to secure resources to accommodate the complainant,

· on 16th of September, 2014, confirmation was received that the complainant would receive 5 hours resource teaching in the respondent school and by 20th of September 2014 a new SNA had been appointed by the respondent to facilitate the complainant,

· on 24th of September 2014, the principal Ms. M became aware that the complainant was also enrolled in another school and this was confirmed via a phone call from Ms. M to the other school. It became apparent that resources had also been applied for by the other school on behalf of the complainant,

· following this communications between the complainant’s parents and the respondent became strained,

· the complainant’s parents requested that the complainant’s SNA be replaced without reason, differentiated timetables were disregarded and on several occasions they withdrew the complainant from the school entirely,

· as a result of this the complainant only attended 29 partial days out of 56,

· on 14th of January, 2015 the complainant had been absent for a two and a half month period since 23rd of October 2014. A meeting was held on this date to facilitate the complainant’s return to school,

· on 16th of January, 2015, Ms. M emailed the complainant’s parents expressing concern over issues raised in relation to the complainant’s timetable and in relation to his SNA. It also stated that the respondent was of the view that the complainant required and needed the support of an SNA.

· on the morning of the 19th of January, 2015 the complainant returned to school and was accompanied by his mother to the PE hall, however PE had been cancelled that day as the class were attending an assembly instead,

· the complainant declined to attend the assembly and instead went home and returned later that day to attend his Materials Technology class,

· the complainant returned to school later that day but did not report to reception as is normal procedure and did not meet with his SNA to attend class,

· the teacher taking the class, Mr. K advised the complainant on his arrival at class that he needed to have his SNA with him to participate in this class. Mr. K advised the complainant to phone his mother to discuss this,

· following a phone call from the complainant, the complainant’s mother came to the class to collect the complainant. The complainant’s mother was upset and distressed that the complainant had been told he needed his SNA to participate in the Materials Technology class and she disputed this,

· the school Principal, Ms. M approached the complainant’s mother, Mrs. O and invited her to discuss the matter with her but Mrs. O refused and left the premises.

5. Preliminary Jurisdictional Issue – Correct Respondent-

5.1 The respondent prior to the hearing submitted that the named respondent, in this case ’the college’ is not the appropriate respondent to this complaint. It is submitted that ‘the college’ is a co-educational school run by a Board of Management under the joint trusteeship of an Education and Training Board (ETB) and the diocese. It is submitted that the school does not have a legal entity of its own but that it is’ under the Education and Training Boards Act, 2013 a sub-committee of the ETB appointed pursuant to Section 44 of that Act. It is submitted that the absence of a corporate identity for the Board of Management of ’the college’ means that the college and or the Board of Management is not capable of being a respondent to a complaint of this nature.

5.2 The complainant in response to this submitted that the complaint was notified to the named respondent on the 9th of February 2015 and that the issue of the named respondent not being the correct respondent was only raised by the named respondent on the 27th of January, 2016. It is submitted that the named respondent replied to the ES1 notification issued by the complainant. This reply was dated 23rd of March, 2015 and was signed by the Principal of the named respondent, Ms. M under ‘Signature of Respondent/Representative’. It is submitted that the incident complained of involved the staff of the named respondent school.

5.3 It is also clear that the named respondent has engaged with the Commission as the respondent at all times and the issue of it being the incorrect respondent was only raised in January 2016. The respondent in its submissions to the Commission, on this matter is not suggesting that the respondent name be corrected to replace the named respondent with the ETB but rather that the ETB should have been named from the start and is thus suggesting that the claim should now be taken against the ETB and that this would render the claim out of time.

5.4 The respondent is correct in its claim that the named respondent school is not a legal entity. The respondent is also correct in its submission that the ETB is a legal entity and one which has assets and liabilities. However, I am satisfied that the named respondent although not a legal entity in its own right, is an emanation of the ETB and as such a claim can be taken against the named respondent in its capacity as an emanation of that legal entity.

5.4 I am also satisfied that the complainant in this case who is a lay litigant should not be penalised due to a lack of knowledge as to who the legal entity is in the circumstances given that the named respondent has been named in all correspondence since the inception of this claim. I am thus satisfied that the claim can be taken against the named respondent as an emanation of the named Education and Training Board ETB.

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 disability in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. 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 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(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)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

6.3 The complainant is required to establish facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

6.4 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

6.5 It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

6.6 The complainant’s mother, Mrs. O advised the hearing that the complainant a diagnosis of Autism with a co-existing mild intellectual disability. Medical reports and documentation have been submitted to the Commission in support of this diagnosis. The respondent at the hearing did not dispute that the complainant is a person with a disability for the purposes of the acts. I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the purpose of the Acts.

7. Notification of disability

7.1 The complainant’s mother, Mrs. O, advised the hearing that the complainant is a fifteen year old school going boy who has a diagnosis of Autism with a co-existing mild intellectual disability. Mrs. O stated that the complainant was initially refused admission to the respondent school and that the complainant’s parents had to undertake a Section 29 appeal to gain a placement for the complainant in the respondent school. The respondent submits that the complainant’s initial application for enrolment was refused on the basis that the application was late and on the basis that the respondent did not have the expertise, resources or facilities to meet the needs of the complainant. The respondent does not dispute that it was at all times aware of the complainant’s disability.

7.2 I am satisfied from the totality of the evidence adduced in relation to this matter that the respondent, was on notice of the complainant’s disability.

8. Background to complaint of discrimination on grounds of disability and failure to provide reasonable accommodation.

8.1 The complainant’s mother, Mrs. O advised the hearing that the complainant who has a diagnosis of Autism as well as a mild intellectual disability had attended junior and senior school in a mainstream school where the school had differentiated his academic curriculum in order to facilitate his participation in mainstream classes. Mrs. O advised the hearing that when it came to choosing a secondary school for the complainant it was felt that his academic needs could best be met in an ASD class or unit attached to a secondary school.

8.2 Mrs. O stated that following application to a number of secondary schools, all secondary schools with such units in his area refused him enrolment for various reasons. Mrs. O advised the hearing that she and Mr. O as the complainant’s parents had to undertake a number of Section 29 appeals to gain a placement for the complainant in a secondary school, one of which resulted in the complainant being granted a place in the respondent’s school. Mrs. O stated that the respondent’s school was not her first choice of secondary schools for the complainant but that the complainant himself was insistent that he wanted to attend the respondent school as that was where his friends were going. Mrs. O stated that she felt that the complainant was not welcome at the respondent school from the start.

8.3 Witness for the respondent and principal of the respondent school Ms. M advised the hearing the complainant’s initial application for enrolment was refused on the basis that the application was late and that the respondent did not have the expertise, resources or facilities to meet the needs of the complainant, following the outcome of an appeal by the complainant under Section 29 of the Education Act 1998 the respondent was directed to enrol the complainant. The complainant’s parents advised the hearing that following the successful Section 29 appeal, they met with the respondent school Principal, Ms. M who indicated that the school would not open an ASD class, offer an alternative curriculum or differentiate the curriculum for the complainant.

8.4 Principal of the school Ms. M advised the hearing that at the time of the complainant’s enrolment in the respondent school there was no ASD Unit within the school, she also stated that there was no capacity to create an ASD Unit and gave evidence as to how overcrowded the facilities at the school were at that time. She also stated that she had tried without success up to that point to have an ASD Unit opened in the school. Ms. M gave evidence as to the efforts she had made seeking such a Unit within the school. Ms. M advised the hearing that she had actively campaigned for an ASD Unit in the school but that any such Unit would require a lead in time of 18 months before it could be up and running. Ms. M also advised the hearing that the respondent school is in fact opening an ASD Unit in September 2016.

8.5 Ms. M advised the hearing that prior to the complainant starting at the school in September 2014, and in preparation to accommodate the complainant’s needs a number of documents and reports were assessed by the respondent including psychological reports from the complainant’s doctors and school reports as well as a report from a Special Education Needs Organiser (SENO), in order to allow the respondent to assess and prepare for the needs of the complainant. Ms. M stated that the school did differentiate the curriculum for the complainant and that efforts to continue to do this were ongoing during the complainant’s attendance at the school. Ms. M stated that the school is in fact obliged to provide a differentiated curriculum in cases such as the complainant’s. The respondent as part of it submission provided documents in support of the assertion that efforts and discussion did take place in order to differentiate the curriculum for the complainant.

8.6 The complainant’s parents, Mr. and Mrs. O, advised the hearing that, prior to September 2014 a number of discussions took place with the respondent school around whether and to what extent the complainant would require and receive the help of an SNA and a resource teacher. The complainant’s parents advised the hearing that they had initially requested that the complainant would have an SNA assigned to him to help him find his way around for the first few weeks until he got used to the school. Mr. and Mrs. O advised the hearing that they were of the opinion that the complainant would only need an SNA for a few weeks as they felt he did not have any care needs for which he would require an SNA once he had gotten over the initial few weeks at school. Mr. and Mrs. O advised the hearing that they encouraged the complainant to be as independent as possible and that they based this on their extensive knowledge and experience of autism having had other children with autism whom they had also encouraged to become as independent as possible and which they stated had always benefitted the children.

8.7 Both parties agreed at the hearing that a number of meetings were held between the complainant’s parents, the school Principal, Ms. M, the Special Education Needs Coordinator (SENCO) Ms. H, Inclusion Ireland, TULSA, Ms. D of the National Educational Psychological Services (NEPS) and with Mr. L, Deputy Principal in order to accommodate and facilitate the needs of the complainant when he started in the respondent school. Witness for the respondent Ms. M advised the hearing that during these meetings the complainant’s parents raised concerns about transport, curriculum differentiation and reduced timetables and indicated a desire to solve these issues through a dual school provision. Ms. M stated that it was made clear to the complainant’s parents during these meetings that dual enrolment is not viable in circumstances where a student can only be enrolled in one school in order to secure resources to accommodate the student. Ms. M advised the hearing that following extensive discussion and meetings regarding how best to meet the complainant’s needs she had with the co operation of the complainant’s parents applied for SNA resources in advance of the complainant’s attendance at the school.

8.8 The respondent advised the hearing that SNA supports were requested for the complainant following discussion with his parents who on 17th of June 2014 signed the application for SNA resources for the complainant. A letter from the complainant’s parents also stated that complainant would be starting school on the 1st of September 2014 and that the school should provide an adult from this date to help the complainant with finding his way around and with taking down his homework and instructions. This letter also stated that the complainant’s parents would have to attend school with him if such a resource was not provided.

8.9 Ms. M advised the hearing that she had on 16th of September, 2014, received confirmation that the complainant would receive 5 hours resource teaching in the respondent school and by 20th of September 2014 a new SNA had been appointed by the respondent to facilitate the complainant.

8.10 Mr. and Mrs. O advised the hearing that they were aware that the respondent school had been allocated 5 hours resource teaching per week for the complainant and that they had received an additional SNA to assist the complainant. They stated that the complainant had attended at two schools as initially proposed by them for a number of weeks until they became aware from contacts with the second school that Ms. M had made contact with the school and advised them that the complainant was enrolled in both schools and made her objection to this known to the other school.

8.11 Ms. M advised the hearing that she became aware on 24th of September 2014, that the complainant was also enrolled in another school and this was confirmed via a phone call from Ms. M to the other school. Ms. M stated that it became apparent to her at this stage that resources had also been applied for by the other school on behalf of the complainant. Ms. M advised the hearing that following this communications between the complainant’s parents and the respondent became strained. Mr. and Mrs. O at the hearing indicated that they were not happy about Ms. M contacting the other school in relation to the complainant’s dual enrolment. Ms. M advised the hearing that following this the complainant’s parents requested that the complainant’s SNA be replaced without reason, differentiated timetables were disregarded and on several occasions they withdrew the complainant from the school entirely. Ms. M stated that as a result of this the complainant only attended the respondent school for 29 partial days out of 56 during the period September 2014 to January 2015.

8.12 Mr. B from the named Education and Training Board (ETB) attended the hearing as witness for the respondent and advised the hearing that dual enrolment of students is not permitted and stated that in the complainant’s case dual enrolment had resulted in two schools seeking resource allocations to cater for the needs of one student. Mr. B stated that each student is given a unique identifying number and that this seeks to prevent students from enrolling in more than one school.

8.13 The complainant’s parents Mr and Mrs. O advised the hearing that they became aware in October 2014 that the SNA was being used by the respondent school to teach the complainant and that she was completing his class assignments for him. Mr. and Mrs O advised the hearing that they were not happy upon hearing this as they felt the complainant was not benefitting from having his assignments completed for him and that it reduced his independence. Following this the complainant’s parents removed him from the school for a number of months.

8.14 Mr. and Mrs. O advised the hearing that during the intervening period they engaged in numerous communications and meetings with the respondent and that following meetings with the school and intervention from TUSLA it was decided to return the complainant to the respondent school for PE, lunch and practical subjects. Witness for the respondent Ms. M advised the hearing that on 14th of January, 2015 the complainant had been absent for a two and a half month period since 23rd of October 2014. She stated that a meeting was held on this date to facilitate the complainant’s return to school.

9. Incident on 19th of January, 2015

9.1 Ms. M advised the hearing that she had on 16th of January, 2015, emailed the complainant’s parents expressing concern over issues raised in relation to the complainant’s timetable and in relation to his SNA. This email also stated that the respondent was of the view that the complainant required and needed the support of an SNA in the school. Ms. M stated that through human error this email did not reach the complainant’s parents, (a copy of this email was presented to the hearing). Ms. M stated that she had received no response to this email and also had not received confirmation from the complainant’s parents that the complainant would be returning to school on the 19th of January, 2015. The complainant’s mother Mrs. O advised the hearing that she had not received the email in question.

9.2 The complainant’s mother Mrs. O advised the hearing that the complainant returned to school on the morning of the 19th of January 2015 after a three month absence. Mrs. O went on to state that she had accompanied the complainant to the PE hall as he was scheduled to have a PE class that morning. Mrs. O stated that upon arrival at the hall it was clear that the class was not going ahead as the PE hall was empty. Mrs O advised the hearing that the complainant had become very distressed and upset at discovering the empty hall. Mrs. O advised the hearing that the complainant had become anxious and confused at finding that PE was cancelled and that he began to question whether PE was cancelled forever and thought his friends did not want to see him again. Mrs O advised the hearing that this had been very distressing for the complainant especially as it was his first day back at school after three months of absence. Mrs. O advised the hearing that she then met the Principal, Ms. M who advised them that PE had been cancelled that morning and that the class were instead attending a talk in the assembly hall. Ms O stated that Ms M asked if the complainant wanted to go to the assembly but that he declined and that Mrs. O then advised Ms. M that the complainant would go home and return later that day for his engineering class. Ms O stated that she then brought the complainant home where he continued be ‘confused and anxious’ about the mornings events but that they returned to the school that afternoon and brought the complainant to his Materials technology class.

9.3 The complainant’s mother Mrs. O advised the hearing, that upon arrival at the class she left the complainant on the corridor to enter the metalwork room with his peers and she returned to her car. Mrs. O stated that shortly after this she received a phonecall from the complainant a few minutes later stating that the teacher Mr. K had told him that he could not participate in class without his SNA. Mrs. O stated that she returned to the school where she was met by Mr. K who told her that the complainant could not participate in the Materials Technology class in the metal work room without his SNA on “health and safety” grounds. Mrs O advised the hearing that she told Mr. K that the complainant did not need an SNA to attend this class as he had no ‘care needs’. Mrs. O advised the hearing that Mr. K then stated that his job would be in jeopardy if he allowed the complainant to participate in the class without his SNA. Mrs. O advised the hearing that she and the complainant upon hearing this turned to leave but were met by Ms. M on the corridor who confirmed that the complainant had to be accompanied by an SNA in order to participate in the metal work class. The complainant’s mother disputes that the complainant needs an SNA to attend this class and submits that he has no care needs.

9.4 Principal of the respondent school, Ms. M advised the hearing that she was surprised to see the complainant at the school on the morning of the 19th of January, 2015 as she had not received confirmation from Mrs O that he was returning on that date and that she had received no reply to her email of the 16th of January, 2015 in which she had addressed issues relating to the complainants SNA. Ms. M at the hearing stated that she has since become aware that the complainant’s parents did not receive the email in question. Ms. M stated that the complainant returned to school on the afternoon of the 19th of January, 2015 but stated that he did not report to reception and that he did not meet with his SNA to attend class as is normal procedure.

9.5 Ms. M advised the hearing that having met the complainant and his mother on the morning of the 19th of January, 2015 she was aware that the complainant would be returning to school later that day to attend his Materials Technology class which was taking place in the Metal work room. Ms. M advised the hearing that she told Mr. K the Materials technology teacher that the complainant was to have his SNA with him in order to participate in the metal work class. Ms. M advised the hearing that she was at this point aware of Mr. and Mrs. O‘s views regarding the SNA but stated that she could not allow the complainant to attend one of the most dangerous rooms in the school without his SNA. Ms. M stated that this need was even greater considering the fact that the complainant was returning to school to this class having been absent for three months. The respondent in its submissions to the Commission on this point referred to a letter dated 29th of August, 2014 from Ms. D Educational Psychologist who advise that the complainant “will require continuation of access to a special needs assistant (SNA) in his new school placement to assist him in getting to and from classes” It went on to state that the complainant “ may require support in practical subjects to ensure his safety while he becomes familiar with classroom equipment and routines”.

9.6 The complainant’s parents at the hearing disputed that the complainant needed to be accompanied by his SNA to attend this class. Witnesses for the respondent gave evidence that there are a lot of dangerous tools and implements in the Metal work room which necessitated the complainant being accompanied by his SNA when attending the class especially given that he had not been at school for three months. Evidence was also given by the respondent that a number of classes at the start of the term are dedicated to teaching the students about how to safely handle tools and cutting implements in the Metal work room.

9.7 The respondent stated that it had an obligation to the complainant and to the other students to ensure the safety of all the students in this environment and that the complainant had to be accompanied by his SNA given the environment and the circumstances. Much discussion took place at the hearing regarding the issue of whether or not the complainant needed to be accompanied by his SNA in the metal work room. The complainant’s parents, Mr. and Mrs O stated that the complainant did not need to be accompanied by an SNA as he had no care needs and so did not require an SNA. Mr. and Mrs. O also stated that the complainant was being singled out for this treatment due to his disability and questioned whether a risk assessment had been carried out on all other students in the class.

9.8 It is clear from the evidence adduced that Mr. and Mrs. O are of the view that the complainant did not need an SNA. The respondent at the hearing stated that the complainant’s parents were in a position where they were able to make such an assessment of the complainant’s needs but stated that the respondent had not been in a position to decide that the complainant did not need an SNA as it did not have adequate time to make such assessment given that he had been absent from school for three months and prior to that had only attended at school for 29 partial days. The respondent added that the usual procedure prior to the complainant’s absence was that he would, upon arrival at school, go to reception where he would be met by his SNA who wold then accompany him to class.

9.9 The respondent advised the hearing that the Materials Technology practical class was the most high risk practical class and room in the school where lathes, saws and other cutting implements were accessible to students. The respondent stated that the complainant had been present for a total of nine of these classes between September and December 2014. The respondent also advised the hearing that it had ensured that the complainant was always accompanied by an SNA during these classes to ensure his safety and wellbeing. The complainant’s parents disputed this but acknowledged that they were not in attendance in the school and so could not say whether or not this was the case.

9.10 The respondent advised the hearing that the complainant on the day in question did not go to reception to meet his SNA prior to attending his metal work class but instead was brought directly to the classroom where his mother left him to attend the class without his SNA.

9.11 The complainant’s parents at the hearing made much of the fact that Ms. M had apparently advised the metal work teacher Mr K that the complainant was not to participate in the metal work class without hi s SNA. Ms. M acknowledged that she had instructed Mr. K in this regard and stated that in her opinion the complainant needed to be accompanied by his SNA given that he was returning after an absence of three months and whose first class on his return was taking place in the metal work room where there are many sharp tools and cutting instruments. Ms. M stated that she was aware of the complainant’s parents views that he did not need an SNA but stated that she could not make such a call give the short time period during which the complainant had attended the school before being absent for three months.

9.12 Ms. M at the hearing referred to medical reports received in relation to the complainant which recommended that he be provided with SNA supports. Mr. and Mrs. O at the hearing disputed the accuracy of these reports stating that they dated back to 2013 and 2014 and that the complainant no longer needed such supports. Ms. M in response stated that these were the most recent reports submitted to her and upon which she had to base her decision re SNA supports. Ms. M also referred to the fact that the complainant’s parents had requested SNA supports for the complainant prior to his starting at the school in September 2014 and again referred to the fact that he had only attended for 29 partial days and so she had nothing else on which to base her decision or to change her mind in respect of SNA supports required for the complainant.

9.13 The respondent submits that its insistence that the complainant be accompanied by an SNA in the Materials technology classroom sought to protect the complainant and other students in circumstances where the complainant has specific care needs which if not facilitated could lead to increased anxiety for him and pose health and safety risks. In this regard the respondent refers to a clinical psychology report from Dr. S (dated April 2013) which recommended that the complainant needed‘adult supervision and support’ and states that he‘can become anxious at times and needs preparation and reassurance and careful planning of the activity and routine’. The report also states that the complainant‘displays a lack of awareness of potential dangers and risks’. The respondent states that it sought to ensure that the complainant was protected and supported upon entering a potential high risk classroom in circumstances where he had returned to school after a prolonged absence, by insisting that he was accompanied by an SNA.

9.14 The respondent in its defence also referred to its own Health and Safety Policy and its Special Needs Policy. The respondent in its defence also referred to Section 7(4)(b) of the Equal Status Acts. In considering this issue, I have taken cognisance of the provisions of sections 7(2) and 7(4)(b) of the Equal Status Acts which make provision against discrimination by an educational establishment in the provision of educational services:

“7(2) An educational establishment shall not discriminate in relation to -

(a) the admission or the terms 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

“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.

9.15 The issue at hand is whether or not the respondent discriminated against the complainant on grounds of his disability by insisting that the complainant be accompanied by his SNA in order to participate in his metal work class. There is also a question of whether the respondent by it’s failure to allow the complainant to participate in class without an SNA has failed to provide the complainant with reasonable accommodation for his disability.

9.16 From the totality of the evidence adduced it is clear that the complainant had been attending the respondent school and had been attending classes until his parents removed from the school in October 2014. It is also clear that the complainant was permitted to return to school following his three month absence and that the respondent was actively seeking his return to school. Ms. M gave evidence at the hearing that she had contacted the complainant’s parents in a bid to discuss the complainant’s return to school following his absence period.

9.17 The issue of an alleged refusal of service arises in relation to the incident of 19th of January, 2015 when the complainant was not allowed to participate in a metal work class without his SNA. Both parties agree that this was the case and it is clear from the evidence adduced that the complainant was not refused entry to the class indefinitely but rather was told that he would have to be accompanied by his SNA to participate in the class.

9.18 It is clear from the evidence adduced that the issue at hand centres on whether or not the complainant should have be allowed to participate in the metal work class without his SNA and whether he needed to be accompanied by his SNA. The complainant’s parents have indicated their view that the complainant did not need an SNA to attend Metal work class as he does not have any care needs. However it is acknowledged that the complainant was allocated an SNA following consultation with his parents in respect of same and they had prior to his attending the school requested such resources.

9.19 It is not for me to decide whether or not the complainant needed to be accompanied by his SNA when attending his metal work class on the day in question but whether the respondent discriminated against the complainant by insisting that he had to be accompanied by an SNA in order to participate in his metal work class. I note that all partied agree that the complainant would have been permitted to participate in the class had he been accompanied by his SNA. The respondent at the hearing stated that the complainant had previously been accompanied by his SNA when attending the metal work class and that he was returning to school after a three month absence. The complainant’s mother gave evidence that the complainant was anxious and confused earlier that day at discovering that the PE class was cancelled. It also emerged at the hearing that Mrs. O had advised the respondent of this by an email on that date which Mrs. O had sent to Ms. M after returning home from the cancelled PE class on the morning of the 19th of January, 2015 and before the metal work class.

9.20 The respondent advised the hearing that they had an obligation to the complainant and to other students to ensure the safety of the complainant and other students while participating in the metal work class where tools and cutting machines were being used by students. And that it had for this reason had to ensure that the complainant was accompanied by his SNA on his return to metal work class after an absence of three months.

9.21 I note from the evidence adduced that Mr. and Mrs. O are adamant that the complaint did not require an SNA to participate in the Metal work class and it is clear from the evidence adduced that they have a great deal of experience and expertise in dealing with the complainant’s disability. However, it is also clear that the respondent based on the information provided to her from the medical reports and from previous requests that an SNA be provided for the complainant and given that the complainant had only attended school for 29 partial days and was returning to metal work class after a three month absence, it is clear that the respondent was not in a position to make a decision that the complainant was now able to participate in metal work class without an SNA. Accordingly, I am satisfied from the totality of the evidence adduced and given the particular circumstances of this case that the complainant was not discriminated against by the respondent in relation to the respondent’s refusal to allow him to participate in his Materials Technology practical class without an SNA.

10. Reasonable Accommodation

10.1 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:

10.2 The relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

4.—(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.

(2) 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.

10.3 The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability.

10.4 It was submitted on behalf of the complainant that the failure of the respondent to allow him to participate in the Materials Technology class without his SNA constitutes a failure to provide reasonable accommodation.

10.5 I note that there is a clear dispute between the parties regarding the appropriateness and effectiveness of the actual measures which were implemented by the respondent. In particular, I note that there is a significant dispute between the parties regarding whether or not the complainant required the assistance of an SNA for him to participate in the Materials Technology class on the date in question.

10.6 In considering this issue, I am satisfied that the SNA was sought by the respondent having consulted with the complainant’s parents and given the advice received from various professionals as detailed above at pghs 9.5 to 9.13. I must also state at this juncture that it is not within my remit under to Equal Status Acts to determine whether or not the complainant required an SNA to attend his Materials Technology class. The only jurisdiction that I have in this regard is to determine, whether or not the measures that were put in place by the respondent in order to facilitate the complainant’s participation in the class, constitute the provision of special measures and facilities to accommodate the needs of the complainant, as a person with a disability, within the meaning of Section 4 of the Acts.

10.7 Based on the totality of the evidence adduced, I am satisfied that the respondent actively liaised with and consulted with a range of professionals in order to ascertain how best to accommodate the complainant’s disability having regard to his educational requirements. Furthermore, I am satisfied that the respondent did in fact put in place special measures, both as a consequence of its engagement with these professionals and as a result of consultations and correspondence with the complainant’s parents in order to cater for the complainant’s educational requirements as a person with a disability. In particular, I have taken note of the evidence presented by the respondent which it received from medical professionals recommending that the complainant have access to an SNA and resource teacher.

10.8 Based on the totality of the evidence adduced and given the circumstances of this case, I am satisfied that the special measures and facilities that the respondent put in place in order to facilitate the complainant in accessing education at the respondent school, were reasonable in the circumstances of this case and that these measures were sufficient to discharge its obligations under section 4 of the Equal Status Acts to the complainant as a person with a disability. Having regard to the foregoing, I find that the respondent’s decision to refuse to allow the complainant to participate in the Materials Technology class unless he was accompanied by his SNA did not amount to a refusal or failure to provide reasonable accommodation to the complainant within the meaning of section 4 of the Equal Status Acts.

10.9 I also note that the respondent has relied upon the provisions of section 4(4) of the Equal Status Acts, 2000 to 2015 in defence of its position that the decision to refuse to allow the complainant to participate in the Materials Technology class unless he was accompanied by his SNA did not amount to discrimination or to a failure to provide the complainant with reasonable accommodation for his disability. 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”

10.10 As I have already found that the alleged discriminatory treatment in this case i.e. the refusal of the respondent to allow the complainant to participate in the Materials Technology class without his SNA, does not, given the circumstances of this case, amount to less favourable treatment on the grounds of his disability or a failure to provide reasonable accommodation within the meaning of Section 4 of the Acts, it is therefore not necessary for me to consider the aforementioned provision of the Acts in my deliberations on this matter.

10.11 I am satisfied from the totality of the evidence adduced in relation to these matters that the complainant was not discriminated against by the respondent on grounds of disability in relation to these matters. I am also satisfied that the complainant was not discriminated against by the respondent on grounds of disability in respect of a refusal or failureto 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.

11. Decision

11.1 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, 2000 to 2015, I conclude this investigation and issue the following decision.

(i) the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

(ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failureto 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.

___________________

Orla Jones

Adjudication Officer/Equality Officer

14th of June, 2016