Complainant

Respondent

Anonymised Parties

A Service User

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 21    Equal Status Act, 2000

CA-00007881-001

26/10/2016

The Complainant is a School Transport   user with a recognised Disability. In the case he was represented by his   Father.

Disability was not contested.

2:1   The Complainant   has a recognised Autistic Spectrum disability. He attends a Special Needs   School in South County Dublin and travels from his home in North County   Dublin to & from the school each day. This has been the pattern for a   number of years without incident.

2:2   In April 2016   the Complainant became aware that the Transport Provision for himself was   being “reconfigured” by the main Transport provider. Concerns were raised regarding the expected   new travel times by the Complainants’ parents. Extensive correspondence, on   the Complainant’s behalf, passed between the Complainants’ Representative,   the Transport Company and the Government Department. No satisfactory resolution   was possible and many queries went unanswered or were unsatisfactorily answered.

On the commencement of the new school year in late August   2016 the travel times for the Complainant increased dramatically – to the   point of they being completely unsustainable especially for a person with an Autism   diagnosis.

Further correspondence and communications followed and it   was only late in November that the service was again adjusted to bring the   travel times back to a barely acceptable level.

The reconfiguration of the Transport provision and the completely   unacceptable new travel times was grossly discriminatory for person with the   stated Disability.

2:3   The governing   Department operates two Circular letters (1)   Primary School Transport Scheme /January 2012 and (2) School Transport Scheme   for Children with Special Educational Needs arising from a Diagnosed   Disability/November 2011

Scheme No I in Section 5 Level of Service recognises the need to avoid having travelling/waiting   times for children in excess of 1.5 hours per day. However the second Circular   Letter – the Special Need letter gives no such assurance on travel times for   Special Needs Children This disparity in provisions is completely   discriminatory towards Special Needs Children.

2:4   The Parent of   the Complainant was involved in the expenditure of some €302 in transport   costs for the week of the 19/23 of September 2016. These costs were incurred   as a result of the Parent taking action to alleviate the excessive transport   times being imposed on the Complainant.   This expenditure should be refunded to the Complainant.

3:1     The case was   characterised by extensive correspondence, presented in evidence, between the   parties which to a large extent set out the Respondent’s position. Extensive   supporting oral evidence was given by two Department Officials.

In brief summary the Respondent’s position was as follows

3:2   The actual   Physical Service Complaint:

The Transport   Provision for the Complainant was reconfigured in the Summer of 2016. Unfortunately   it resulted in increased travel times and the Department, in conjunction with   the Transport Company took steps to alleviate this situation. By the end of   November /early December a rearranged service was in place and the travel   times had reverted to those experienced prior to the Summer of 2016.

It has to be recognised that Transport Provision and   resulting Travel Times for some 12,000 Special Needs Children has to be   regarded as a very challenging logistical situation. The Department recognise   this fact and are completely flexible in their approach. The service to the Complainant   did not work out as planned and was accordingly readjusted. Oral evidence was given by Department   Officials on this point and the flexibility of the service in general as   regards Special Needs Children.

There was absolutely no discrimination against the Complainant.

3:3     The Circular   Letters complaint

The Department operates via the public Transport Company a   very major transport operation for all qualifying children in the State. In   terms of logistics the provision of the service for Non Special Needs   Children is, while not in any way simple, much easier as Non Special Needs   Schools are much more widely available and basically are in every Parish in   the Country. In this context an assurance in relation to a 1.5 Hour   Travel/Waiting time is realistic.

The situation regarding Special Needs children (approximately   12,000) is much more challenging, special schools are much more widely geographically   separated and the catchment area for pupils is often quite extensive. The   individual needs of the children are often quite different and have many   particular local characteristics regarding travel routes, collection times   and order of collection/drop off. In this context giving a fixed time assurance   would be impractical and effectively misleading. For this reason the   Department has always adopted as flexible and responsive approach as possible   to ensure that all children get the best possible service. The service   provided is designed to be as suitable as possible, within the limits of   reasonable constraints on the public purse, for all the Special Needs of the   service users.

There is no Discrimination against Special Needs Children   in the differences between the provisions in the Circular Letters.

3:4   Refund of   Expenditure

On the 14^th February 2017 the Department made   an offer to refund expenditure incurred. At the date of the hearing it was   unclear if this offer had been accepted.

Conclusions /relevant Law

In reaching my decision   I have taken into account all the submissions, both oral and written, made to   me by the parties in the course of my investigation into the complaint.

(   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) or, if appropriate, subsection (3B) , (in this   Act referred to as the ‘ discriminatory grounds ’ ) which —

(i)   exists,

(ii)   existed but no longer exists,

(iii)   may exist in the future, or

(iv)   is imputed to the person concerned,

(   b ) where a person who is associated with another person —

(i)   is treated, by virtue of that association, less favourably than a person who   is not so associated is, has been or would be treated in a comparable   situation, and

(ii)   similar treatment of that other person on any of the discriminatory grounds   would, by virtue of paragraph ( a ), constitute discrimination,

or  

(   c ) where an apparently neutral provision would put 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 4 of the Equal Status act 2000 is also worth noting

Discrimination   on ground of disability.

(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.

(3)   A refusal or failure to provide the special treatment or facilities to which   subsection (1) refers does not constitute discrimination if, by virtue of   another provision of this Act, a refusal or failure to provide the service in   question to that person would not constitute discrimination.

(4)   Where a person has a disability that, in the 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.  

(5)   This section is without prejudice to the provisions of sections 7(2)( a), 9(   a) and 15(2)( g) of the Education Act, 1998, in so far as they relate to functions of the   Minister for Education and Science, recognised schools and boards of management   in regard to students with a disability.

(6)   In this section—

“provider   of a service” means—

(   a) the person disposing of goods in respect of which section   5 (1)   applies,

(   b) the person responsible for providing a service in respect of which section   5(1)   applies,

(   c) the person disposing of any estate or interest in premises in respect of   which section 6(1)(a) applies,

(   d) the person responsible for the provision of accommodation or any related   services or amenities in respect of which section   6(1)(c)   applies,

(   e) an educational establishment within the meaning of subsection (1) of section   7 in   relation to any of the matters referred to in subsection (2) of that section,   or

(   f) a club within the meaning of section 8(1) in respect of admission to membership or a   service offered to its members,

as   the case may be, and “service” shall be construed accordingly;

“providing”,   in relation to the special treatment or facilities to which subsection (1)   refers, includes making provision for or allowing such treatment or   facilities, and cognate words shall be construed accordingly.

Section 7 of the Act is also pertinent.

Educational   establishments.

7. Child Care Act, 1991 , a primary or post-primary school, an   institution providing adult, continuing or further education, or a university   or any other third-level or higher-level institution, whether or not   supported by public funds.

(2)   An educational establishment shall not discriminate in relation to—

(   a) the admission or the terms or conditions of admission of a person as a   student to the establishment,

(   b) the access of a student to any course, facility or benefit provided by the   establishment,

(   c) any other term or condition of participation in the establishment by a   student, or

(   d) the expulsion of a student from the establishment or any other sanction   against the student.

(3)   An educational establishment does not discriminate under subsection (2) by   reason only that—

(   a) where the establishment is not a third-level institution and admits   students of one gender only, it refuses to admit as a student a person who is   not of that gender,

(   b) where the establishment is an institution established for the purpose of   providing training to ministers of religion and admits students of only one   gender or religious belief, it refuses to admit as a student a person who is   not of that gender or religious belief,

(   c) where the establishment is a school providing primary or post-primary   education to students and the objective of the school is to provide education   in an environment which promotes certain religious values, it admits persons   of a particular religious denomination in preference to others or it refuses   to admit as a student a person who is not of that denomination and, in the   case of a refusal, it is proved that the refusal is essential to maintain the   ethos of the school,

(   d) without prejudice to section 3 of the Refugee Act, 1996, where the establishment is an institution   providing adult, continuing or further education or a university or other   third-level institution—

(i)   it provides different treatment in relation to—

F23   [ (I) the fees for admission or attendance by persons who are citizens of   Ireland, nationals of another Member State, nationals of the Swiss   Confederation or nationals of a member state of the European Economic Area   and persons who are not, or ]

(II)   the allocation of places at the establishment to those nationals and other   nationals,

or

(ii)   it offers assistance to particular categories of persons—

(I)   by way of sponsorships, scholarships, bursaries or other awards, being   assistance which is justifiable, having regard to traditional and historical   considerations, or

(II)   in relation to the allocation of places at the establishment, where the   allocation is made pursuant to an agreement concerning the exchange of   students made between the establishment and an educational institution or   authority in a jurisdiction other than the State,

or

(   e) where the establishment is a university or other third-level institution,   it provides different treatment in the allocation of places at the   establishment to mature students (within the meaning of the Local Authorities   (Higher Education Grants) Acts, 1968 to 1992).

(4)   Subsection (2) does not apply—

(   a) in respect of differences in the treatment of students on the gender, age   or disability ground in relation to the provision or organisation of sporting   facilities or sporting events, to the extent that the differences are   reasonably necessary having regard to the nature of the facilities or events,   or

(   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.

F24   [ (5) ( a ) In this subsection ‘ grants ’ means grants to assist persons to   attend or continue to attend —

(i)   an institution providing adult, continuing or further education,

(ii)   a university, or

(iii)   any other third-level or higher-level institution,

whether   or not supported by public funds.

    ( b ) The Minister for Education and Science does not discriminate where he   or she —

(i)   requires grants to be restricted to persons who are F23 [ citizens of   Ireland, nationals of a Member State, nationals of the Swiss Confederation or   nationals of a member state of the European Economic Area ] , or

(ii)   requires F23 [ such citizens or nationals ] and other persons to be treated   differently in relation to the making of grants. ]

F25   [ (6) In this section, ‘ member state of the European Economic Area ’ means a   state that is a contracting party to the Agreement on the European Economic   Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments   to that Agreement. ]

" 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."

Although the instant case is taken under the Equal Status Acts,   Section 38A is analogous to Section 85A of the Employment Equality Acts. In   this regard, I consider that it is appropriate for me to consider the Labour   Courts comments in examining the circumstances in which the probative burden   of proof applies in employment equality cases. In the case of Dyflen   Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the   approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR   246, and stated that “… the court should consider the primary facts which are   relied upon by the Complainant in their proper context. It also indicates   that in considering if the burden of proof shifts the court should consider   any evidence adduced by the Respondent …”.

The Labour Court continued

Section 85A of the Act provides for the allocation of the   probative burden in cases within its ambit. This requires that the Complainant   must first establish facts from which discrimination may be inferred. What   those facts are will vary from case to case and there is no closed category   of facts which can be relied upon. All that is required is that they be of   sufficient significance to raise a presumption of discrimination. However   they must be established as facts on credible evidence. Mere speculation or   assertions, unsupported by evidence, cannot be elevated to a factual basis   upon which an inference of discrimination can be drawn. Section 85A places   the burden of establishing the primary facts fairly and squarely on the Complainant   and the language of this provision admits of no exceptions to that evidential   rule.

4: 4 Accordingly the key question in the case at hand,   considering all the evidence, is whether or not an act of discrimination, a   prohibited act as set out in Section 3 of the Equal Status Acts took place?

4:5   The Evidence   presented. Both Written and Oral

4:6     Point One - the   Physical Complaint of Service delays.

Considerable correspondence between the parties was exhibited.

It was clear that from April 2016 when the change or “reconfiguration”   of the school transport provision for the Complainant was first mooted the Complainants’   parent Mr. CP raised a considerable number of queries with both the contracted   Transport Company and the Government Department who commissioned the   provision. Mr. CP queried the size of   the proposed new vehicle, a minibus as against a 7 seater taxi that had been   used previously -the query related to the suitability of the larger vehicle   in Dublin traffic and the effects this would have on travel times. The issue   of drop offs and collections to two separate schools was raised – again how   this would impact on travel times.

Reading the extensive correspondence it was clear that the   Department and the Transport provider were confident that the plans in place   would be suitable and were effectively taking a “wait and see” approach in   the belief that the arrangements would work out satisfactorily.

The correspondence from Mr OH in the Department stated on the   29th July 2016 gives a good flavour to the exchanges.

“When we spoke on the 30th June 2016 I advised that there would   be no reduction in A’s (The Complainant’s) level of service. This assurance   was agreed with Bus Operating Company who are responsible for the   organisation and timetabling of services. This position remains unchanged and   I have asked Bus Operating Company to confirm the transport arrangements that   will be in place for A for 2016/2017”

Regrettably this did not quite come to pass and the travel   times increased significantly. However this appeared to be a related to an   additional drop off to another unconnected school which caused delays in the   service. When this was dropped in the November review travel times appeared   to go back to what had been experienced beforehand.

Taking into account that the Department via the Bus Company   organised Transport provisions for in excess of 12,000 children with special   needs I could not see where Discrimination as defined in the Equal Status Acts   was occurring here. No person, a Comparator as define din the Acts, was treated more favourably than the   Complainant, all the passengers on the vehicle were Special Needs users and   were equally inconvenienced by the delays. It was not a case that there was a   parallel service for non-Special Needs Children operating on the same route   to the same schools.

4:7     In the Equality   Acts, both Equal Status and Employment Equality there is a   presumption of “Reasonableness” – Section 16 of the Employment Equality Act   1998 refers to “Appropriate Measures”

Nature and extent of employer’s obligations in certain cases.

16

( a) will not undertake (or, as the case may be, continue to   undertake) the duties attached to that position or will not accept (or, as   the case may be, continue to accept) the conditions under which those duties   are, or may be required to be, performed, or

( b) is not (or, as the case may be, is no longer) fully   competent and available to undertake, and fully capable of undertaking, the   duties attached to that position, having regard to the conditions under which   those duties are, or may be required to be, performed.

(2) In relation to—

( a) the provision by an employment agency of services or   guidance to an individual in relation to employment in a position,

( b) the offer to an individual of a course of vocational   training or any related facility directed towards employment in a position,   and

( c) the admission of an individual to membership of a   regulatory body or into a profession, vocation or occupation controlled by a   regulatory body,

subsection (1) shall apply, with any necessary modification, as   it applies to the recruitment of an individual to a position.

(3) ( a ) For the purposes of this Act a person who has a   disability is fully competent to undertake, and fully capable of undertaking,   any duties if the person would be so fully competent and capable on   reasonable accommodation (in this subsection referred to as ‘appropriate   measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where   needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on   the employer.

( c ) In determining whether the measures would impose such a   burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s   business, and

(iii) the possibility of obtaining public funding or other   assistance.

In the case in hand the Department is engaged in providing   Special Needs Transport across the State to in excess of 12,000 children. In any   context this is an “Appropriate Measure” and inevitably there will be situations   where arrangements have to be adjusted – as in this case.

I could not see how (the   service delays and later re adjustments) could qualify as Discrimination against   the Complainant in this case.

In addition Section 7 (4) of the Equal Status Act refers, albeit   in a question of the provision of Sporting facilities to permitted differences   in provisions.

4) Subsection (2) does not apply—

( a) in respect of differences in the   treatment of students on the gender, age or disability ground in relation to   the provision or organisation of sporting facilities or sporting events, to   the extent that the differences are reasonably necessary having regard to the   nature of the facilities or events, or

( 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.

Taking   this argument to the provisions of the School Transport Service in question   here the Complainant was in effect sharing a Transport Provision with other   Special Needs children and the Department had to have regard to the wider   group, what was “reasonably necessary” and also the constraints on public   expenditure.

Again   I could not see, from the evidence presented, how an argument of Discrimination,   as understood by the Equal Status Acts 2000 could have any prima facie basis   here.

4:8   Point Two – the Differences in the   Circulars.

Taking   the points made above and the “Reasonableness” argument the Department and   its Agents the Bus Company face a very considerable logistical challenge in   the provision of Special Needs School Transport.

The absence of the reference, in the Special   Needs Letter/Circular, to a travel and waiting time target of 1.5 hours /   Section 5 Level of Service is not an unreasonable omission where the   transport of some 12,000 children is involved. The approach adopted in being flexible and   trying to adjust to special situations is the only practical policy. Oral   evidence was given by the Department Official responsible. Even in the Non   Special Needs Circular letter there is   the qualification regarding the Time Limit assurance

“where   practicable and subject to considerations of costs and logistics”

Accordingly   having reviewed all the evidence, both written and oral, I did not find a   prima facie case of Discrimination (the treating of one person less   favourably than another and with no mitigating steps being taken) in the   differences between the Circulars.

4:8   Point Three – Refund of Expenses.

The   Department, offer of the 14th February should be accepted by the Complainant.