EQUALITY OFFICER'S DECISION NO: DEC-S2017-007
PARTIES
Mr. M (on behalf of his son, K)
-v-
A Secondary School
FILE NO: et-153484-es-15
Date of issue: 9th of February, 2017
1. Dispute
1.1 This dispute involves a claim by Mr. M on behalf of his foster son, K
that he was discriminated against by a Secondary School, on grounds of family status, contrary to section 3(1)&(2)(c) of the Equal Status Acts, 2000-2015 when he was refused a place as a First Year pupil to the school for the Academic Year commencing September, 2015. The Admissions policy applied relates to the date of application of the child and Mr. M submits that this discriminates against the complainant on grounds of family status.
2. Background
2.1 The complainant Mr. M referred a complaint on behalf of his foster son, K under the Equal Status Acts, 2000-2015, to the Equality Tribunal on the 10th of February, 2015. The complainant, K was taken into foster care by Mr. M when the complainant was five years old. On 13th of February, 2009, Mr. M applied on behalf of his foster son K, for a school place in the respondent Secondary school. By letter dated the 17th of November, 2014 the respondent advised the complainant that K’s application was unsuccessful, and that the school was not in a position to offer him a place for the school year commencing in September 2015. The Admissions policy applied relates to the date of application of the child and Mr. M submits that this discriminates against the complainant on grounds of family status. Mr. M submits that other applicants can apply when the child is born and obtain an early application date but the complainant was unable to make an earlier application due to the fact that he was not born in the catchment area and only came to live there at the age of five when he was fostered by Mr. M.
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 7th of October, 2016 to me Orla Jones, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 20th of January, 2017. Final correspondence from the parties was received on the 1st of February, 2017.
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(3) of the Workplace Relations Act, 2015.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant K was born in January 2002 and was fostered by Mr. M and his family when he was five years old,
Mr. M applied for a secondary school place for the complainant on the 13th of February, 2009,
by letter dated the 17th of November, 2014, the complainant was advised that K’s application was unsuccessful, and that the school was not in a position to offer him a place for the school year commencing in September 2015,
the Admissions policy applied relates to the date of application of the child and Mr. M submits that this discriminates against the complainant on grounds of family status,
Category 2 of the respondent’s Admissions Policy allows applications to be ranked in accordance with the date of application, (Category 1 applies to those who had siblings already in the school and who lived in the catchment area, and did not apply to the complainant),
this policy placed the complainant, as a foster child, at a disadvantage compared to a biological child living in the care of their biological parents whose application could be submitted immediately following their birth, the complainant could not apply at such an early stage as he was five years old when he was fostered by Mr. M and his family, and moved to the catchment area,
this claim is being taken under both Section 5 and/or Section 7 of the Equal Status Acts 2000-2015,
section 7 of the Equal Status Act refers to students, or prospective students but other people, such as parents of pupils can refer cases against schools, or other educational establishments under Section 5 of the Equal Status Act as the Admissions Policy is a service aimed at parents to facilitate enrolment of a child with the school, and that it qualifies under Section 5 of the Equal Status Act,
the Admissions Policy has the effect of Indirectly discriminating against the complainant as a foster child as it contains an apparently neutral provision which puts, or would put, a person protected by any 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 (s.3(1)(c) ESA),
the provision(s) at issue, whereby applications for enrolment are accepted at birth, and in the event that applications exceed places available, the date of registration will be used to prioritise applications within each category, while apparently neutral, discriminates against foster parents and foster children alike.
4. Summary of Respondent’s case
4.1 The respondent submits that
it is a relatively new secondary school and every year has been over subscribed in relation to applications received for the number of places available,
there are 120 first year places available each year with about 200 students leaving the local primary school each year, (this is not a feeder school),
it operates an Admissions Policy which gives priority to siblings of existing pupils and thereafter applications are ranked by application date, provided the applicants are within the catchment area for the school,
the respondent consulted with the Department of Education in drawing up its admissions policy in order to ensure that the Policy was fair and reasonable, the respondent also submits that this policy is objectively justified and is not discriminatory,
the complainant was not initially offered a place in the school due to the fact that his application date was later than others who were offered in the first round of 120 places in October 2014,
subsequent rounds of offers are made depending on acceptance rates at each round, all the while moving down the list by date of application,
the complainant was, by February 2015, ranked 3rd on the cancellation list following the earlier rounds of offers and was advised that he may be offered a place in circumstances where cancellations/withdrawals arose,
a number of applicants did not accept the places offered and the complainant’s name was reached on the cancellation list in May 2015,
the complainant was offered a place on 7th of May 2015,
the offer was refused by Mr. M who indicated that the complainant was at this stage enrolled in another school for the coming September.
5 Preliminary Issue - Family Status Ground
5.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where “On any of the grounds specified in subsection (2)....... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(1)(c) provides, inter alia that discrimination shall be taken to occur where
“an apparently neutral provision puts a person referred to in any paragraph of section 3(2) 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”.
Section 3(2) provides that: as between any two persons, the discriminatory ground of family status is,
(c) that one has family status and the other does not or that one has a different family status from the other (the ‘‘family status ground’’),
The Equal Status Act sets out the definition of ‘family status’ as follows:
‘‘family status’’ means being pregnant or having responsibility —
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support
on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
5.2 The Equal Status Act does not differentiate between the biological parent of a child born to them and remaining in their care, and the parent of a child who is fostered into their care. It is thus clear from the Act that a biological parent of a child born to and remaining in that persons care is considered to have the same ‘family status’ as a parent who has fostered a child into their care. Similarly under the Acts no provision is made to differentiate between a biological child and a foster child.
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(b) that one has family status and the other does not or that one has a different family status from the other (the ‘‘family status ground’’),
5.3 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘family status’ a complainant must be the subject of less favourable treatment on the grounds of having a different family status to a comparator or of having or not having a family status. In the present case according to the definition contained with the Equal Status Acts, the complainant does not have a different ‘family status’ to others cited as comparators. Thus a complaint cannot be grounded on the complainant’s status as a foster child or on Mr. M’s status as a foster parent as it does not fall under the definition of ‘family status’ under the Acts. Accordingly I am satisfied that I do not have jurisdiction to examine a complaint on the ground of ‘family status’ where the status being relied upon is that of a foster child and/or foster parent and this aspect of the complaint must fail.
6. DECISION OF THE EQUALITY OFFICER.
6.1 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 has failed to establish a prima facie case of discrimination on grounds of family status contrary to section 3(1)&(2)(c) of the Equal Status Acts, 2000-2015 .
___________________
Orla Jones
Adjudication Officer/Equality Officer
9th of February, 2017