EQUAL STATUS ACTS
DECISION NO. DEC-S2018-018
PARTIES
A student and her mother
(Represented by Desmond Ryan, BL
instructed by the Irish Human Rights and Equality Commission)
Complainants
AND
A secondary school
(Represented by Rosemary Mallon, BL
instructed by Mason Hayes & Curran Solicitors)
Respondent
File reference: ES/2014/0084, ES/2014/0160 & ES/2014/0161
Date of issue: 21st September, 2018
Introduction:
- On the 12th May and 8th July 2014, three complaints were referred to the Equality Tribunal/Workplace Relations Commission against the same respondent. Two complaints are in the name of the complainant and one in the name of her mother. The complaint of the 12th May asserts that the respondent discriminated against the complainant and failed to provide her with reasonable accommodation (ES/2014/0084). An ES1 form was sent on the 19th March 2014 and the respondent replied on the 16th April 2014. A second complaint of discrimination and failure to provide reasonable accommodation (ES/2014/0161) was submitted on the 8th July 2014. This followed an ES1 form of the 28th May 2014, to which the respondent also replied to. The complainant’s mother submitted a complaint of discrimination by association and victimisation (ES/2014/0160).
- On the 13th January 2016, in accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on six separate dates.
- Desmond Ryan, BL instructed by the Irish Human Rights and Equality Commission represented the complainant and her mother. Rosemary Mallon, BL instructed by Mason Hayes & Curran represented the respondent. The complainant’s mother and the chartered psychologist gave evidence for the complainant. The principal, the special needs coordinator and the SNA gave evidence for the respondent. The senior NEPS psychologist and the NEPS Regional Director attended pursuant to section 34 of the Equal Status Act.
- This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
THE COMPLAINANT’S CASE
- The evidence of the complainant and her mother:
2.1 The complainant submitted two complaints of discrimination on grounds of her disability against the respondent, her former school. Her mother’s complaint is one of victimisation and discrimination by association. The complaints were dealt with together and heard over several days. The complainant’s mother attended the hearing to speak on her daughter’s behalf and on her own behalf.
2.2 The complainant’s mother outlined that her daughter was now 20 years of age and attending the services of a group affiliated to the Health Service Executive. She was engaging in various socialisation tasks with a view of doing a PLC course. She said that the complainant had diagnoses of Attention deficit hyperactivity disorder (ADHD), Oppositional Defiant Disorder (ODD), Asperger’s Syndrome and anxiety. Her disability had come to light in primary school. She described her daughter as being giddy during her first year in school but she was taken aback when the primary school principal contacted her at the end of second year to say that her daughter would be held back a year. The primary school principal raised her daughter’s behaviour. At this time, her daughter’s sibling was in the same primary school. This sibling has Down’s Syndrome and the primary school principal was not supportive of her. The complainant’s mother transferred the complainant to a local, smaller primary school, but moved her again after a parent complained about the time and attention demanded by her daughter. The complainant completed her primary education at an Educate Together in a neighbouring county.
2.3 The complainant’s mother explained that her six children all went to the respondent secondary school. Her youngest daughter was still a student in the school. It was important for the complainant to have the same opportunity with the respondent, in particular as it was a good school and very much part of the local community. She said that the then Principal (referred to in this report as the Former Principal) was very supportive as was a named SENO. The Former Principal established the autism unit, which opened the year the complainant joined the school. The Former Principal liaised with the Educate Together in order to plan her joining the school.
The complainant’s first year
2.4 The complainant’s mother outlined that from day one her daughter was less favourably treated by the respondent. The complainant was asked not to attend school until the teacher assigned to the autism unit commenced employment with the respondent. No alternative teacher was offered and the complainant only started in school when this teacher was available. The complainant’s mother complained to the special needs coordinator and asked that her daughter commence on the same day as everyone else. The complainant started in school on the 5th October 2009. By this time, the former principal had left the school and was replaced by the current Principal. The complainant’s mother described her daughter’s first year as a negative experience. She spent the year being taught in a small room, with the teacher and a Special Needs Assistant. Her classes would only last a short time and her mother had to remain on the school grounds to collect her daughter at very short notice. Her daughter could not socialise with her peers. The complainant’s mother said that she had to bring and collect her daughter from this small classroom every day. She was asked to attend every day as an SNA. While she was not happy with these arrangements, she hoped that they would improve over time. She raised her concerns at the regular Individual Education Plan (‘IEP’) meetings, at which the special needs coordinator also attended. She also complained that the complainant was never allowed to be without an adult accompanying her, for example an SNA walking with her in the corridor.
2.5 The complainant’s mother said that there were attempts by the respondent to integrate her daughter into the school. The respondent over-exaggerated and over-reacted to a series of incidents involving the complainant. The over-reaction involved punishing the complainant for everything that happened. The complainant was a “taught spring” and the respondent added to the pressure on her. The respondent did not engage positively or provide a holistic environment for the complainant. The complainant knew she was an outsider. She asked where the other autism teacher and students were in the unit and why she did not spend time in a mainstream setting.
2.6 While she was acting as an SNA, the complainant’s mother witnessed the event of the 24th September 2010. She accompanied her daughter to an outside education facility where she had a maths class. Her daughter passed a comment about younger children close-by. The complainant’s mother described this session as a great success but she learnt that her daughter was suspended for one week. The complainant’s mother challenged the Principal about the suspension and he relented. Her daughter was then permitted to attend school. She commented that the respondent continued to refer to this incident. Her daughter was upset as a result of what happened and would not attend school.
2.7 The complainant’s mother witnessed the incident of the 16th April 2010, described by the respondent as an assault. She did not agree that it was an assault. In an exercise of integrating her daughter into the school, she was sitting with two pupils. She described the complainant as waving a pencil at the two children and nothing more. This was witnessed by the teacher and logged as an assault. In a further incident on the 15th January 2010, the complainant threw a CD in the playground and it accidentally hit a named SNA. The respondent suspended the complainant but the complainant’s mother did not challenge the suspension as she wanted to “play ball”.
2.8 The complainant’s mother said that the normal school day was 9am to 3.45pm Monday to Wednesday and 9am to 3.15pm on Thursdays and Fridays. Her daughter never received a full day’s schooling. She was initially taught for 20 minutes and this increased to 1 hour, 1 hour 20 minutes and then two hours. The complainant was sent home when a named teacher was not available or when she became anxious. No other student had the same restricted day and the complainant became very unhappy about being out of school and isolated for so long. She acknowledged that there were occasions when she went home early while at primary school. The complainant’s mother continued to raise her unhappiness about the restricted school times at the regular IEP meetings. Her daughter’s time in school was extended to two hours per day at the end of first year.
2.9 Addressing the documentation prepared by the respondent regarding the complainant’s first year in school, her mother commented that the report of the 20th October 2009 exaggerated the incident. She did not recall the complainant running from the building. She accepted the report at the time as she wanted to work with the school. Commenting on the report of the 11th November 2009, the complainant’s mother said that this records positive progress but the respondent made insufficient effort to integrate her daughter and did not reward progress. She trusted the special needs coordinator to integrate her daughter into the school. She further commented that the report of the 27th November 2009 shows that her daughter’s time in school was reduced very shortly thereafter. Addressing the report of the 18th December 2009, she was not certain what the reference to a “choice timetable” meant but that the complainant was not given any choice. She raised her strong concerns about Gardaí calling to the school to visit the complainant, as stated in the report.
2.10 In respect of the progress report for the period of September to December 2009, the complainant’s mother said that while the incidents of her daughter spitting and other acts may be accurate, they were exaggerated. The report was one-side and overly negative; it did not take account of her daughter’s unhappiness. She noted that the school had adjusted to the complainant spitting by not immediately sending her home; they did not improve her overall position in the school. The complainant’s mother did not recall why the time her daughter spent in school was again reduced to 20 minutes. She said that her daughter’s attendance at PE class was used by the respondent as a carrot when it was her right. She said that integration was offered to her daughter as a carrot, but this too was a right. The complainant was crying out to be like the other children. She acknowledged that there had been another suspension in January 2010 and queries the reference in the report to the TEACHH programme.
2.11 In respect of the February to May 2010 progress report, the complainant’s mother said that she did not recall the incident where it is stated that her daughter threw a chair at a teacher. Her time in school was like a yo-yo and the erratic nature of her timetable was a significant barrier to her education. In respect of the IEP minutes of the 3rd June 2010, the complainant’s mother said that the special needs coordinator suggested that she consider an alternative school for her daughter. She explored a special school in a neighbouring town, but the principal of that school said that her daughter was too high functioning to be in this special school. She felt that the complainant was no longer welcome at the respondent.
The complainant’s second year
2.12 Commenting on the IEP minutes of the 6th September 2010, the complainant’s mother said that the respondent offered three 40-minute classes for her daughter. There was no new plan for her second year. She acknowledged that the respondent suggested a facility in Kildare but this was not feasible as it was a residential centre. It was only briefly mentioned during this meeting. She raised the issue of the complainant doing the Junior Certificate as her daughter was not getting a fair chance academically. The complainant was particularly gifted at using the computer but her use of the computer was restricted and she was not given sufficient time. The complainant’s mother had asked the respondent to introduce computer-based learning for her daughter, but this initiative was not taken up. She also asked the School Completion Officer for assistance, who informed her that the respondent had prevented this support from being given. The complainant’s mother said that the Principal told her that this was only for disadvantaged children, but this was one way the respondent could have offered accommodation to her daughter’s disability.
2.13 The complainant’s mother said that there was no real improvement in the education provided by the respondent in the second year. The complainant did not receive school reports and was excluded from class; she was also not integrated into the school. The respondent suspended her from school, but did not provide anything positive for her. The progress report for November to December 2010 was positive and stated that the complainant’s mother attended for an hour as an SNA. The status quo was kept at two hours. Commenting on the reference to remarks made by the complainant, she said that they were made due to anxiety. She did not design the reward system as stated in the document, but agreed to its implementation. While her time in school was built up to two hours, the complainant could not mix with other students, for example at break. Commenting on the report dated the 14th April 2011, the complainant’s mother said that she did not, as stated, continue at home the system of withdrawing rewards where there was bad behaviour; this would have been difficult given she was caring for a sibling. The complainant was doing well and the impact of the reward system is exaggerated. While the complainant needed support, she should have been allowed to do things on her own, for example to go to the toilet.
2.14 The complainant’s mother outlined that her daughter was excluded from special occasions in the school, for example the visit to the school by an Olympic-winning athlete, then a student. This event occurred after her the complainant’s hours finished at 11am. In respect of the IEP minutes of the 30th August 2011, the complainant’s mother said that as this was immediately before the start of the third year in school. She emphasised the need for her daughter’s integration. She suggested that the complainant access the lunchtime club, a facility offered to struggling students. This was denied and no reason given. The failure to integrate the complainant led to her erratic participation at school. She did not have school books. The respondent made no comment in respect of the Junior Certificate, to be sat by her peers at the end of that academic year.
The complainant’s third year
2.15 In respect of the report of the 3rd October 2011, the complainant’s mother said that her daughter did not need the ‘LEA’ language support referred to in the report. She agreed that she no longer waited for her daughter on the school grounds, but had to remain close by. Commenting the weekly records, the complainant’s mother that her daughter was subject to these daily reports, instead of being allowed relax. This marked her out. Commenting on the IEP minutes of the 27th October 2011, the complainant’s mother agreed that there had been social outings to coffee shops, but they were tightly controlled, with two adults accompanying her daughter and sometimes one or two other students. While there was occasional interaction with the transition year class, the respondent would not allow the complainant attend PE, home economics or computer classes.
2.16 In respect of the report of the 16th December 2011 IEP meeting, the complainant’s mother said that the exercise of her daughter going to a maths class was very positive and this was possible because of the teacher in question. It was only a drop in the ocean. The complainant had also attended guitar classes until they were withdrawn by the respondent. Commenting on the December 2011 progress report, the complainant’s mother said that her daughter was absent from school because she was unhappy there. The complainant’s mother criticised her daughter’s lack of opportunity to interact with other children, for example on trips to the coffee shop.
2.17 The complainant’s mother said that she was very disappointed that the respondent did not allow her daughter participate in the Junior Certificate. She commented that her daughter with Down’s syndrome had taken a few subjects at Practical level. She agreed that the complainant was given greater access to teachers in her third year, but questioned the teaching materials used, for example texts more suitable for younger children. In respect of the letter of the 2nd March 2012, she had no recollection of the complainant punching a teacher. The suspension continued until the 21st March 2012 and this isolation made things worse. The respondent did not provide any plan for the complainant’s education while she was suspended. Commenting on the Board of Management report of the 30th April 2012, the complainant’s mother said that the respondent resorted to suspension with greater frequency and she was not given the opportunity to make a submission about what would be a proportionate response. The complainant’s positive behaviour was not recognised and she was not integrated into the school, leaving her prone to failure. She was not given the chance of attending for a full day. The complainant’s mother remarked on the reference in the report to teachers “containing” her daughter. She said that that this is what they did instead of teaching her. The reference in this same report to the complainant’s short attention span was recognition of her disability. The complainant was deprived of doing the curriculum and her mother’s attendance as an SNA was not appropriate for a school resourced by the Department. She said that the reference to health and safety concerns could relate to an occasion where she had run ahead of the teacher.
2.18 Commenting on the respondent’s letter of the 13th January 2012, the complainant’s mother said that her daughter’s lack of attendance related to her isolation. She replied on the 24th January 2012 to say that her other children had done well at the respondent school, but that the complainant needed to be treated fairly. Her daughter had “pin-sharp clarity” of her isolation. The complainant’s mother outlined that the ending of the school day so early every day added to her isolation. She was not provided with other resources to help with her education for the rest of the day. The respondent did not provide a plan for this time and neither for the periods during which she was suspended. Her daughter’s anxiety worsened because of how the respondent treated her. The complainant further lost out as an SNA she liked left the school as LIFO was applied to SNA roles and this SNA was the newest in school.
2.19 The complainant’s mother said that she was demoralised to receive the letter of suspension, dated the 24th January 2012. She could not recall the incident and it was not mentioned to her as she collected her daughter on the day in question. No basis was given for the six-day period of suspension. The respondent did not seek to cater for the complainant’s anxiety-based disability. It should have talked to her and had exaggerated the incident. With regard to the letter of the 27th February 2012, the complainant’s mother said that the respondent was unhappy that she contacted her daughter’s teacher directly, asking her to instead make an appointment through the school offices. This was differential treatment associated with the complainant’s disability. The complainant was punished for everything. The complainant’s mother denied that any incident amounted to an assault. She did not agree that her daughter absconded from the school and the reference to “serious allegations” in an art therapy class was her daughter talking inappropriately about sex. This letter raises the possibility of her daughter leaving the school and no alternative plan is proposed.
2.20 Referring to the letter of the 2nd March 2012, the complainant’s mother said that her daughter was suspended from the 29th February to the 21st March 2012. The length of the suspension was determined by a forthcoming professionals’ meeting and no consideration was given to alternatives to suspension. On the 16th March 2012, the complainant’s mother wrote to the school, outlining her concerns about the suspension. The respondent replied on the 2nd April 2012. Commenting on the respondent’s letter of the 2nd May 2012, the complainant’s mother said that she was not aware of the incident of the 27th April 2012. She did not know the reason behind the threat of expulsion contained in the letter. The respondent had the ability to help her daughter but choose not to. With regard to the letter’s reference to health and safety, there had been no risk assessment or measures that could be introduced to address any concerns. In respect of the invitation to the Junior Certificate event, the complainant’s mother said that this was sent to her household in error and it was discriminatory to exclude her daughter from the milestone of the Junior Certificate. The complainant’s mother was upset at receiving the invitation. Commenting on the respondent’s letter of the 10th May 2012, she outlined that while the NEPS psychologist had suggested a school in a neighbouring county as an alternative, this was not viable. She had approached the school and they had said that they were not appropriate as her daughter’s disability was not severe enough. Their catchment area was also restricted to the county. She would have moved her daughter if she could have. The respondent continued to place her daughter on suspension without stating the reason for this.
2.21 In her letter to the respondent Board of the 22nd May 2012, the complainant’s mother said that it did not have the necessary expertise because they mentioned OT and SLT support. These were supports her daughter did not need. She raised the need for home tuition to supplement her daughter’s time in school but this was not progressed by the respondent. During this time, her daughter was suspended but the resources allocated to her education used elsewhere in the school. The other two children with autism were integrated into mainstream classes. Commenting on the letter of 18th June 2012 offering the school’ support for her request for home tuition, the complainant’s mother said it would have been better if the school had approached the Department directly. This was necessary to convey the seriousness of the situation. The respondent did not answer her questions and only ever provided one report. The information provided in other documentation did not address her daughter’s education. She referred to correspondence which demonstrated that the professionals were not looking for an alternative placement for her daughter, as the respondent claimed.
2.22 In August 2012, the complainant’s mother availed of a section 29 appeal to challenge her daughter’s open-ended suspension. She said that the appeal panel described her daughter’s treatment at the school as “horrific” and her appeal was upheld. The respondent was ordered to give her daughter access to resources and that the code of conduct should be amended to cater for the needs of children with autism. The section 29 decision recommends the implementation of points 2 to 13 of the NEPS psychologist report. The complainant’s mother went through each in detail, stating that the only one implemented related to her daughter’s participation in tennis. There was no attempt to implement the other recommendations. Furthermore, the complainant’s mother outlined that the principal was then very hostile to her, raising his voice to her at a school meeting and calling her a liar at another meeting. He apologised on both occasions.
The complainant’s transition year
2.23 Between the 3rd and 7th September 2012, the complainant’s mother said that her daughter was not able to attend school because certain personnel were on training. No other provision was made for her education. This was a significant blow as her daughter could not attend important events associated with the start of transition year. This was an important year as the more relaxed nature of the year would allow her integrate more. In her letter to the respondent on the 12th September 2012, the complainant’s mother pointed to the opportunity to integrate her daughter into the transition year. She said that her education had been severely compromised, having not being supplied with school books or reports. Her daughter was denied the opportunity of mixing socially or taking classes in small groups. She spent a large amount of time writing to the respondent, raising her concerns. Referring to the local education centre’s letter of the 27th July 2012, she said that this provides a positive and very different account of her daughter and education. Her daughter did well in the July provision. The complainant’s mother referred to the letter of the 13th September 2012 which stated that her daughter could not be accommodated for more days because of teacher absences. As a result, her daughter’s attendance was very patchy. She wanted her child to re-start school like everyone else and did not believe the respondent’s reasons were valid, i.e. the new curriculum and new teacher. It was at this time that she appointed the former principal as her daughter’s advocate.
2.24 The complainant’s mother outlined that her daughter was to go into Transition Year after her successful section 29 appeal. Her daughter was only able to begin school a week or two after the start of term and as a result, she missed out on the fashion show and other events to integrate her into the new year. Her daughter returned to school on a compromised basis and missed out on courses, work experience and activities, for example going to town. There were positives, but her daughter was never praised or encouraged.
2.25 The complainant’s mother said that, despite the January 2013 IEP plan stating that her daughter would attend more classes with her peers, there was no attempt to do so. The plan represented a small deviation from the restricted timetable and she had tried to extend the timetable beyond the restricted hours of 9 to 11am. She recalled no day when her daughter remained in school until 1pm. Her daughter attended some lunchtime club events, but she found this stressful as an SNA was always present. Her daughter never participated in work experience or community service. She did not have consistent access to the workshop. The respondent had never done an assessment of her daughter’s suitability and she could have benefitted and been able to fully participate in the workshop. Commenting on the TY timetable, the complainant’s mother said that her daughter did not do Italian or Film Studies, despite these subjects being listed on the timetable.
The complainant’s leaving certificate applied first year
2.26 The complainant’s mother said that her daughter had done her best during transition year, but was not provided with a report at the end of the year. She had asked for a greater number of school hours and that her daughter be given fairer and more inclusive treatment. She outlined that things became worse after the section 29 appeal and the respondent was upset at the outcome. This included refusing to extend the hours her daughter was provided. The Leaving Certificate Applied timetable of March 2014 was not inclusive as her daughter had to work on her own and in the presence of two adults. Her classes took place between 9am and 11am. The complainant’s mother said no one was listening to her. Her daughter now felt socially deprived and this had a profound effect on her. In respect of the second Leaving Certificate Applied timetable, she acknowledged that the timetable extended to 1pm, but she could not recollect this extension taking place. Her daughter could have joined a group for Home Economics, but was generally on her own. Her daughter could have been integrated, but she was “walking on eggs” with the special needs coordinator and the SNAs. In relation to the timetable of the 2nd December, she acknowledged that the timetable ended at 3.45pm, the end of the normal school day. Her daughter did not complete the full day and also did not have access to the variety of projects and teachers the other children had. The timetable for the 5th March 2014 returned her daughter to the restricted hours of 9 – 11 am.
2.27 The complainant’s mother said that her daughter could have sat the Leaving Certificate Applied, even though she had not done the Junior Certificate. While there was an agreement for her daughter to do the LCA, she had withdrawn her daughter as her hours were restricted to 9 to 11am. Commenting on the document for the period of September 2013 to January 2014, the complainant’s mother accepted that her daughter should not have kissed a boy but that the school’s response was excessive. There was no complaint from the boy and the incident had been blown up. Her daughter could act silly, but she should not have been sent home. In respect of the incident on the 16th September 2013, the complainant’s mother said that her daughter had issues with wearing a uniform and she was being punished for what she said. The respondent was over-exaggerating when it referred to this incident as an “unprovoked attack”. Her daughter had been sent home as a punishment. The respondent had totally blown up the incident of the 18th September 2013 when it referred to her daughter as “accosting” and “punching”. She said that the respondent’s reactions to these events made her daughter very anxious. Her daughter was sent home at 11am between the 6th and 13th September 2013, even though there was no reason for her schooling to end at this time. The complainant’s mother acknowledged that on the 25th September 2013 her daughter had left the school without permission and went to town.
2.28 The complainant’s mother outlined that following this, the NEPS psychologist recommended a reduced school day. Her daughter’s timetable remained 9am to 11am. The timetable was meant to be extended to 11.45am from the 18th October 2013, but this did not happen. She was not sure whether her daughter’s hours were extended in the course of that week. Her daughter should have been rewarded for being normal, for example by extending the school day. Her daughter found it overwhelming to be given out to.
2.29 Commenting on the events of November 2013, the complainant’s mother said that while the timetable states that the school day was extended to 1.45pm, this never took place. The complainant’s mother said that the incident of the 28th November 2013 should have been addressed with her and her daughter should not have been sent home. The complainant’s mother said that the meeting of the 29th November 2013 was very stressful for her. Following the email incident, she did not know what to do, but denied saying that she would withdraw her daughter from the school because of it. She told the meeting that her daughter was unhappy in the school and there was no one to help her daughter. She was disillusioned after years of frustration. Her daughter was then absent from the school for December 2013, but this was unplanned. The complainant’s mother commented on the respondent’s reference to “should [daughter’s name] return” when it was clear that she was still on the student roll. She did not think that her daughter was invited to return to school.
2.30 The complainant’s mother was not sure what happened in the incident of the 9th January 2014. The respondent explained the details of what happened, they were stressed and angry. Her daughter was not withdrawn from school between the 10th January and the 7th February as she was always on the roll. She commented on the incident report related to the 9th January 2014 made by a named SNA, saying that there were four adults in the room at the time.
2.31 The complainant’s mother recalled seeing the Progress Report of the 11th February 2014 and its reference to a 9am to 11am timetable and period of suspension. She acknowledged that her daughter had a full-time SNA but it was inappropriate that she was sent elsewhere after 11am. Her daughter was also placed in a small room and could not mix with other ASD pupils. There was minimal reverse integration and her daughter’s successes were not acknowledged. The reverse integration was attempted at the beginning and was initially successful. The incident involving the pencil was blown up. Her daughter never had the chance of full integration, and this only occurred occasionally and in a compromised way, where her daughter was accompanied by the SNA.
2.32 The complainant’s mother said that the use of a colour-coded timetable was inappropriate for the age of her daughter and was suitable for junior infants. She outlined that while IEP meetings took place, the participants did not listen to her and they were hurting her daughter. The complainant’s mother outlined that some of the of the multi-disciplinary team meetings did not take place. She was not notified of some of the meetings or of the decisions made. There was a negative atmosphere where SNAs and teachers declined to teach her daughter. The psychiatrist visited the school and the respondent did not listen to him. Nothing changed after the psychiatrist’s visit. She outlined that the respondent relied on the OT assessment done in primary school and did not carry out constructive therapy.
2.33 The complainant’s mother said that the SENO told her that she could not get past the school board of management in getting NEPS psychological help. The respondent did not take on board the advice of the Disability Liaison Nurse. She commented that the Education Welfare Officer’s role ended when her daughter turned 16, but he had been supportive. She was upset as her daughter could not access supports from the SENO. At this time, her daughter was sent home when teachers did CPD courses. The complainant’s mother said that the respondent should have accepted and supported her daughter. It did not give her a chance to socialise or to access the curriculum. She was made to feel like an outsider and it over-exaggerated the health and safety risks.
2.34 The complainant’s mother outlined that her and her daughter’s complaint of victimisation arose after the section 29 appeal. The complainant’s mother was publicly turned into the enemy of the school. The principal angrily shouted at her saying that she had lied through her teeth at the section 29 appeal. He later withdrew the remark. She referred to the incident at a parents’ meeting where she raised the need to celebrate children with special needs and the principal publicly accused her of having an agenda. He later apologised for this. The complainant’s mother referred to taking photographs in the school, but the principal said she could not do this. Other parents, however, were able to take photographs. She said that the members of the board of management became more aggressive at their meetings. She was treated like an enemy in her daughter’s fifth year.
2.35 The complainant’s mother referred to the email from the SENO where she states that there was no support from NEPS as this was blocked by the board of management. She said that the school wanted the HSE to take her daughter off its hands. The complainant’s mother commented that the class preparation period never occurred and her daughter was held in her own classroom. She said that the daily target sheets and warning cards stressed her daughter. The warning cards also caused her stress. While the time out cards were good, they were not implemented consistently. The teacher who had taught her daughter for the first years did not teach her daughter after the junior cycle.
2.36 The complainant’s mother outlined that her daughter’s comment about Justin Bieber was made in the context of an art therapy class discussing relationships and sexuality. The class stopped after her comment and her daughter was removed by the teacher. Her daughter was then no longer able to access the class and this had been a useful support. While the respondent did provide high interest activities, such as computers, her daughter was left on her own, isolated from the rest of the school.
2.38 The complainant’s mother said that while the respondent claimed successes, her daughter could not walk in the corridor or be on her own. She should have been let walk on her own in quiet times. It was embarrassing for her daughter to go to the canteen with the SNA. The SNA role was rigid and her daughter’s every peep was reported to the special needs coordinator, who would, in turn, shout at her daughter. The longer school day was erratic during transition year. It was not true that her daughter was integrated into a class. The respondent did also not acknowledge the success of her daughter’s interaction with the Former Principal.
2.39 The complainant’s mother outlined that her daughter had been deemed to be the “school freak” so she was volatile. It was unfair for a report to refer to male students as there was only one boy. This report referred to her daughter walking out of class, but this was in the context of only being the only person in the class. While her daughter left the school without permission, this was no worse than March 2013. The comment of “refusing to engage” could relate to the new Leaving Certificate Applied class and her daughter should have been integrated in a safer way. Her daughter’s anxiety was caused by the SNA. The complainant’s mother did not accept that her daughter wanted to be in area 7, the special needs unit to the side of the school.
2.40 The complainant’s mother commented that after March 2013, the school documented more and became more negative. The respondent wanted to get her daughter out of the school after the section 29 appeal. No support was provided to her daughter after 11am. The complainant’s mother had no recollection of the incident of the 19th April 2013 and there may have been some anxiety-driven verbal abuse of staff and pupils. The respondent’s decision to send her daughter home was punishing her for her disability. Her daughter needed a therapeutic response and not a punitive one. Her daughter was suspended after the incident of leaving the school. The complainant’s mother acknowledged that her daughter did better in transition year, but the rigid timetable stopped her getting her access to the full timetable. Her daughter was isolated in school, causing her anxiety and frustration.
2.41 In the first year of the LCA, the complainant’s mother said that her daughter was not provided with continued supports. Her school day ended at 11am and she should have had access to the ASD unit. The complainant’s mother said that the incident of September 2013 regarding the comment of a sexual nature was exaggerated. She took her daughter out of school between the 9th January 2014 and the 7th February 2014. Her daughter was suspended on the 10th February 2014, but the respondent did not provide grounds. Resources were not provided to her daughter, even though they were provided to the respondent. The timetable of March 2014 was inappropriate as the school day ended at 11am. She also only attended school for four days in transition year as she never went on work experience. Her daughter was home on Fridays.
2.42 The complainant’s mother accepted that the meeting of the 19th March 2014 was to facilitate her daughter’s return to school. She was unhappy and disillusioned with the proposal of a two-hour school day. This was not full integration to a full timetable. She was upset as there was no plan to integrate her daughter for the full day. She said that the respondent board of management wanted to get rid of her daughter to another named facility. The complainant’s mother did not recollect seeing the plan dated the 20th March 2014. The plan was not achieved and her daughter did not have access to the ASD unit during the LCA first year. The timetable of the 2nd May 2014 was damaging as it provided a different start time to other students. She informed the special needs coordinator that the timetable was not helpful.
2.43 The complainant’s mother described the respondent’s letter of the 4th June 2014 as intimidating and amounted to an attempt to get rid of her daughter. Referring to the calendar, the complainant’s mother said that the school day ended at 3.45pm on one day. She did not accept the accuracy of this timetable. Her daughter may have stayed beyond 11am in the period of the 5th and 13th September. She did not stay for the full day on the 7th or 8th January 2014. The complainant’s mother said that in February 2014, the principal gave an undertaking to the school board of management to exclude her daughter, thereby victimising both her and her daughter.
2.44 The complainant’s mother outlined that only one report was provided in her daughter’s five academic years at the respondent. No explanation was given why reports were not provided every year. She thought that this could be because there was not enough work done in the last year. The summer report for 2014 referred to her daughter being distracted in tasks, but this was part of her disability. She commented on three named teachers as being excellent or good. The respondent should have issued reports throughout her daughter’s school year as this would have given hope to her and her daughter.
2.45 Commenting on the letters of suspension of February 2014, the complainant’s mother said that it was unclear whether her daughter had been suspended. This letter confirmed her formal suspension, but gave no reason for a two-week suspension. She could not see the basis for this period and the respondent should have helped her. Instead, the school made her daughter feel excluded. The reference in the letter to her daughter’s “continued enrolment” meant that the complainant’s mother and her daughter were walking on eggshells; this threat of exclusion was a punishment of her daughter’s disability. She said that expulsion was the worst thing you could do to a child. The respondent had not secured an alternative, a requirement when a student is to be excluded.
2.46 The complainant’s mother said that she withdrew her daughter from the school after the 9th January 2014. She attended the board of management meeting of the 24th February 2014 and said that she could not go on with the pain of keeping her daughter in school. She wanted her daughter to have a fair chance. The respondent’s letter of the 22nd February 2014 did not put the requested supports in place and her daughter was kept to a 9am to 11am school day. At the board meeting of the 27th February 2014, a named teacher become defensive during her presentation. A member of the board said “if you’re not happy, take your daughter out”. The complainant’s mother said she was intimidated by the request to submit her presentation in writing after the meeting. Another board member said that the school “expelled kids all the time”. The board did not explain why the suspension was extended to the 3rd March 2014.
2.47 The complainant’s mother was upset that the school’s letter of the 6th March 2014 restricted the school day to two hours with the hope of extending the timetable. She outlined that the respondent then used her daughter’s resources elsewhere. Her daughter was assigned a named SNA and this was wrong as her daughter was unhappy with this SNA. While her daughter was able to do some music, there were no structured computer class. The letter did not address whether her daughter could return to the class of the Former Principal. The reference to removing her daughter did not address the need to allow her daughter to chill.
2.48 The complainant’s mother said that the meeting of the 31st March 2014 was futile as no supports were provided. She became disillusioned and did not know what to do. The respondent letter of 1st April 2014 referred to punishment if the return was not successful. This letter was written because the complainant’s mother wanted the board to take action. The letter of the 3rd April 2014 referred to the meeting of the 31st March 2014. The board members lowered their heads when she came into the room. One member said to her 40 minutes before that the meeting that they could not talk because of the legal case.
2.49 The complainant’s mother said she was anxious what would happen in September 2014. Between April and June 2014, her daughter had ticked along and did okay, attending school for two hours per day over a four-day week. Her daughter was asked to leave the school at 11am on the day of the LCA awards ceremony when all the LCA children were invited to attend.
2.50 The complainant’s mother said that her daughter was not allowed partake in physical education, art, home economics and social events. She was not given the chance of doing PE because of one incident in transition year when she rushed into the toilets. Her daughter could have played basketball. She commented that her daughter was then doing well in a programme and was building up her confidence. The programme was being kind to her and not punishing her.
2.51 In the letter of 18th August 2014, the complainant’s mother asked that her daughter be able to re-join the transition year group of students as she had socialised with this group over the summer without the need of an SNA. The programme was then interested in playing a role while her daughter was still in school. In their reply of the 21st August 2014, the respondent “offered” a two-hour school day and the complainant’s mother did not believe the promise to increase the length of the school day. While her daughter doing PE was good, the two-hour day was too short. She described the offer of PE as “crumbs” and the start time of 11.05am set her daughter out as an outsider. Her daughter did not return to school. She commented on the LCA report which allocated seven zeros to her daughter. The respondent did not discuss her daughter doing the LCA. Doing the LCA would have helped her daughter’s esteem. She was surprised by the letter of the 31st January 2014 as she had never sought an exemption from Irish. The complainant’s mother was not consulted about her daughter doing the LCA and the modules selected by the school. After withdrawing from the respondent, her daughter attended the programme and the complainant’s mother did not look for another school. She lost hope of finding an alternative school. The programme later became erratic and other initiatives did not work, including one which could not offer transport. The complainant was now doing well at home. Commenting on the email of the 26th March 2014, the complainant’s mother said that the first bullet related to the number of school hours. The principal did not treat her with respect because she was a lone parent and would have treated her differently if she was with a man.
2.52 In cross-examination, the complainant’s mother agreed that the respondent had a duty of care to all staff and students and this included her daughter. In respect of her time accompanying her daughter at school, the complainant’s mother said that in first year she attended school as her daughter’s SNA. Her daughter was settled, especially with a named male teacher. Another teacher was always on a course. She did whatever the special needs coordinator asked of her. Her daughter also had a good relationship with another named SNA. The complainant’s mother was present for the incident where her daughter threw an item and accidentally hit an SNA.
2.53 In respect of her primary school education, the complainant’s mother said her daughter did okay in her first year, but the principal made it difficult for another daughter who has Down’s Syndrome. The complainant moved to another school and did well. This school asked that her daughter be moved, so she was then home-schooled and later went to an Educate Together. Her daughter became unsettled in the autism unit as there were children with very high needs and non-verbal behaviour. The complainant was stressed, but did not present challenging behaviour.
2.54 The complainant’s mother was referred to the Psycho-educational report, dated February 2006 regarding her daughter’s behaviour; she replied that her daughter was erratic and overwhelmed with anxiety. Her daughter had considerable difficulties so could not behave like an ordinary child. The complainant’s mother could not recall incidents where her daughter escaped from this primary school. The complainant’s mother was referred to the NEPS Psychiatric report of March and April 2008, which mentions escaping from school as a health and safety consideration; she replied that there was no documentary evidence that she escaped from school. She outlined that these medical reports had been given to the respondent in good faith. She outlined that she waited outside of the primary school while her daughter attended school. Her daughter may have escaped once or twice, but it was not a big issue.
2.55 The complainant’s mother accepted that there were a significant number of preparatory meetings prior to her daughter attending the respondent. She accepted that one preparatory meeting in November 2008 referred to her daughter’s suspension from primary school and her return on a restricted timetable; she said that her daughter possibly had been suspended, but not for alarming behaviour. While she returned on a restricted timetable, this was not an issue as she was on her way to the respondent. Her child with Down’s Syndrome had done well at the respondent, so she was not against the school. She described everyone as being on tenterhooks.
2.56 The complainant’s mother said that she was unhappy that her daughter started at the respondent five weeks after the start of term. This was because the teacher was doing a course. Her daughter was segregated and not given a chance. She was placed in a room with five adults and the evidence against her was hearsay. She said what the respondent characterised as inappropriate physical behaviour prior to coming to the respondent was her daughter flailing from anxiety. She said that her daughter had possibly kicked and punched others at her last primary school, but did so when she was stressed. The complainant’s mother was referred to April 2009 profile of her daughter; she replied that there was no reference to times they took a break or the positive points. The issues were not as serious as documented.
2.57 The complainant’s mother accepted that the respondent called her to collect her daughter, but this arose because her daughter could not cope with two other children. It was put to the complainant’s mother that the report for January to June 2009 painted a picture of her daughter behaving in a physically aggressive way, endangering both herself and other students; she replied that she was never called into the school and this was over-exaggerated. Her daughter was only hurt by the SNAs. The successes were not documented.
2.58 It was put to the complainant’s mother that it was clear from the minutes of the October 2009 IEP meeting that she participated in the meeting and that it focussed on her daughter’s hitting and bad language; she replied that she was trying to work with the respondent and trusted the school. The minutes were balanced on paper, but in reality, the respondent was punishing her daughter for her disability. She was out-numbered by adults and on her own. It was put to the complainant’s mother that the respondent plan to start her daughter on a reduced timetable which could expand; she replied that her daughter was in the ASD unit so the resources were assigned to her. The complainant’s mother was referred to the programme dated the 11th November 2009; she replied that this provided for one hour per day, but her daughter was segregated and could not thrive. It was put to the complainant’s mother that the decision set out at the IEP meeting of the 27th November 2009 to reduce the school day to 20 minutes was a fair response because of the deterioration of her daughter’s behaviour; she replied that this was not fair. Her daughter was not able to thrive with four adults in a room. It was put to the complainant’s mother that the IEP minutes of the 18th December 2009 reflect that her daughter was given choice in her timetable (reflecting what the psychiatrist had suggested) and the timetable was increased to one hour; she replied that there was no real choice in a school day of one hour and other children were not offered carrots. This was a right for every child. It was put to the complainant’s mother that her daughter’s behaviour had deteriorated and was physical; she replied that this was very unfair treatment.
2.59 It was put to the complainant’s mother that she agreed at the IEP meeting for the Gardaí to visit her daughter at school; she denied agreeing to this intervention. It was put to the complainant’s mother that she agreed to wait in the school car park; she replied that she was not treated like other parents. The school said “jump” and she said “how high”. The school told her that she had to do it their way for her daughter to stay. The complainant’s mother was asked whether someone from the respondent said that her daughter would be expelled if she did not wait in the car park; she replied that she was on tenterhooks from day one. It was put to the complainant’s mother that this was linked to her daughter’s behaviour; she replied that she did this for the school. It was put to the complainant’s mother that she did not complain about this at the time; she replied that she kept her side of the bargain and was committed to doing everything, but the school strung her along for five years.
2.60 The complainant’s mother was referred to the Progress Report September to December 2009; she said that this looked good on paper but did not accept that these steps were done. The teacher only taught her daughter for one hour. She was not taught in a classroom. The room she was in was not a positive room and had no computer. It was put to the complainant’s mother that her daughter’s behaviour deteriorated in November 2009, including the spitting incident of the 25th November 2009; she accepted that her daughter was unsettled but the incident was exaggerated. It showed that the teacher could not manage her daughter. It was put to the complainant’s mother that the respondent adapted its response following the spitting incident by keeping her daughter in school, as set out in this Progress Report; she replied that this should not have happened as her daughter was only in school for one hour. It was all punitive and her daughter’s views were never sought.
2.61 It was put to the complainant’s mother that the reduction of the school day showed that the school was flexible; she replied that she was not happy with a 20-minute school day. It was put to the complainant’s mother that the school tried to integrate her daughter with a select group for a PE class; she remembered that her daughter panicked when the PE teacher shouted at her. The PE teacher later apologised. There was a lot of pressure on her daughter in these classes. The complainant’s mother did not accept that the respondent had tried to integrate and be flexible to her daughter. She did not accept that the respondent should use health and safety as a reason not to extend her daughter’s school day, as set out at the IEP meeting of the 29th January 2010.
2.62 It was put to the complainant’s mother that there were ongoing incidents involving her daughter, for example one of the 16th April 2010 she held a pencil to the face of a student; she could not recall this incident and this was exaggerated. Her daughter was segregated and punished every day. There was no attempt to integrate her. The complainant’s mother was referred to the IEP progress report of the 19th March 2010 that extended the school day to 90 minutes; she asked why her daughter could not have been allowed to stay for the whole day. It was put to the complainant’s mother that this plan also included reverse integration and for her to accompany her daughter; she replied that this was not an appropriate response. In respect of the report of the pencil incident of the 16th April 2010, her daughter had a successful week and this was exaggerated. The complainant’s mother was present for the incident and there was no documentation of positive steps. She accepted that there had been a whole month of integration. It was put to the complainant’s mother that there was a conflict whether a threat had been made on the 16th April 2010; she replied that there was no threat and no basis to end reverse integration. Her teacher said that her daughter had made progress educationally.
2.63 It was put to the complainant’s mother that her daughter left an English class on the 26th April 2010 and was given the choice to go back; she replied that it was inappropriate to give her daughter a choice when she had been isolated for six months and the presence of an SNA caused her anxiety. It was put to the complainant’s mother that the final IEP report of the first year did not disclose discrimination and showed that she was heavily involved; she asked how many other children were segregated and how many other parents were asked to wait outside. She trusted the school but they did not do right by her daughter. It was put to the complainant’s mother that there was no need for the school to prepare formal reports as there were IEP meetings every six weeks; she replied that there was no review of her daughter’s academic performance. It was put to the complainant’s mother that the teacher provided daily, verbal reports on her daughter’s academic progress; she replied that the respondent should have provided the complainant with reports, the same as the other children.
2.64 In respect of her second year, the complainant’s mother said that she begged for her daughter to be able to do the Junior Certificate and to do the school completion programme, but the respondent denied this support to her daughter. She was the most discriminated student in the school. It was put to the complainant’s mother that the school completion programme was for students facing economic disadvantage and not for special needs; she replied that no one had worked in her home for eight years. In respect of the incident in the computer room of the 20th September 2010, the complainant’s mother said that this reflected poorly on the staff involved as they should have let her daughter calm down. She outlined that the progress reports of this time did not reflect her daughter’s positive interactions. She became anxious when attending a named project. She did not accept that her daughter had shouted at young children and she was present at the incident. This was untrue and it was unfair to suspend her daughter for one week.
2.65 The complainant’s mother was referred to a progress report for November / December 2010 and the increase in the school day by ten minutes; she replied that the school should have reduced restrictions because of her daughter’s good behaviour. It was put to the complainant’s mother that the respondent had used a reward system that involved her; she replied that she was trying hard. The complainant’s mother was referred to the plan set out at the IEP meeting of the 21st January 2011, which increased the school day and phased out her role; she replied that a named Clinical Psychologist was unhelpful and the 5-minute increase too little. The good work with one teacher was not documented and no one cared about her academic results. It was put to the complainant’s mother that the IEP report emphasised the positive and attempted to use the reward system to address bad behaviour; she replied that her daughter was still on a restricted timetable and they brought back a teacher about whom she had nothing positive to say. This occurred even though her daughter did well with another teacher.
2.66 It was put to the complainant’s mother that the progress report of March/April 2011 showed that the reward system was working; she replied that there was still no increase in her time at school. It was put to the complainant’s mother that the report for the year showed that she was fully involved; she replied that the respondent had made life easy for itself by allowing her daughter attend two classes and then punishing her by sending her home. Her daughter should have attended school for the full day and she was left isolated. The respondent did not build on the positives and did not adopt a holistic approach. It was put to the complainant’s mother that she did not complain at this time; she replied that she sought more time at school for her daughter as well as increased integration and for her to be able to attend clubs. The respondent knew she was unhappy and she did not set this out in writing.
2.67 It was put to the complainant’s mother that the IEP report of the 27th October 2011 indicates that her daughter was permitted to wear trousers and looked to her integration into the transition year class; she replied that the integration efforts were unsatisfactory and the respondent adopted a patronising approach to the transition year children. In respect of the IEP report of the 16th December 2011, the complainant’s mother said that she was unhappy with the two-hour day and described this as “token school”. She did not accept that progress had to be bit-by-bit. It was put to the complainant’s mother that the respondent was conscious to avoid situations that caused stress, so made progressive attempts at integration; she replied that the respondent was using her daughter’s rightful education as a carrot. It was put to the complainant’s mother that the respondent recognised her daughter’s particular needs and to throw her into the deep end could be upsetting and cause volatile behaviour; she replied that the school was over-reacting. Her daughter behaved well with the Former Principal and was never given a chance. She raised using medication to allow her daughter integrate, asking whether she needed to keep her “doped up”. Subjects such as music were used as carrots and she was very upset at the school’s performance.
2.68 The complainant’s mother was referred to her letter of the 24th January 2012 and her acknowledgement of the respondent’s “enormous commitment”; she replied that she was then trying to work with the school and was not happy with the two-hour school day. It was put to the complainant’s mother that she praised a teacher she was now critical of, calling her “exceptional”; she replied that her daughter did better with male teachers and as this teacher was the teacher for children with autism, she had no choice but to work with her. It was put to the complainant’s mother that she was happy with this teacher in 2012 and she was asked whether she was telling the truth in praising her in this letter.
2.69 It was put to the complainant’s mother that she had positive things to say about the special needs coordinator; she agreed and said the special needs coordinator should have taught her daughter more. The complainant’s mother was asked whether she disputed that her daughter had pushed a teacher; she replied that her daughter had pushed past and had no intention of harming the teacher. She did not think that the teacher was hurt and should have been trained for such an incident. It was put to the complainant’s mother that a named SNA had left the respondent because of the reduction in the SNA allocation to the school and had found a role elsewhere, her departure was unrelated to her daughter; she replied that an exception to LIFO should have been made to keep this SNA.
2.70 It was put to the complainant’s mother that it was more appropriate for a parent to contact reception when a child could not attend school, rather than sent a text message; she replied that she had asked for a change of policy for her daughter. They needed to adopt a more holistic approach and to give her a chance. She did not want conflict. It was put to the complainant’s mother that there was no reference in her letter of the 24th January 2012 to the respondent’s policy; she replied that she did not want to fight the school.
2.71 It was put to the complainant’s mother that the respondent had given positive reinforcement to her daughter; she replied that the respondent treated her like a freak. The complainant’s mother said that integration would give her daughter a chance, but successes were not built on. The complainant’s mother was referred to the report of the social outing of the 22nd February 2012; she accepted that there was a conversation with an SNA and a teacher, who was very stressed. This created a situation of anxiety for her daughter about her going on her own. It was put to the complainant’s mother that the respondent acted appropriately by following her daughter at a distance when she was in the town; she replied that other children were permitted to cross the road. Her daughter was impulsive and she was being punished for this. She had never run away from the Former Principal.
2.72 The complainant’s mother was referred to the letter of the 24th February 2012 and asked whether this “social time” of going to town was integration; she did not accept that this was true integration as it was supervised by an SNA. This was an example of school scrutiny and the respondent was out to get her. She said that the account prepared by the two staff members was “probably what happened” but it was unfair to document everything.
2.73 It was put to the complainant’s mother that the respondent letter of the 27th February 2012 addressed the current issues facing her daughter and there was no threat or suggestion that her daughter had to leave the school. It was further put to the complainant’s mother that the letter addressed contacting reception and having a consistent approach to social outings, as well as using art as a means of integrating her daughter. The complainant’s mother said that there had been a shift in attitude by the respondent. She was being held to ransom and she did her best to be consistent. It was inappropriate to end all social activities and the only option was to go to town. Her daughter was then suspended and punished for her disability.
2.74 The complainant’s mother was referred to the report of the two incidents of the 29th February 2012 regarding pulling hair; she said that her daughter was stressed that day. She was not sure if the incident happened or if the teacher’s hair was pulled. The complainant’s mother was referred to the multi-disciplinary team meeting of the 21st March 2012 where the school stated that it could not meet all her daughter’s challenges; she replied that this was the first time the respondent admitted its failings, even though they had massive resources in place. The complainant’s mother disagreed that the respondent’s approach was correct and not over-cautious, as she had stated in her letter to the school of the 16th March 2012. Commenting on the April 2012 progress report, the complainant’s mother asked where the ASD team were when her daughter was running around the school and refusing to attend class. She described this as a reckless report and showed that the respondent was out to get her. She did not agree that the NEPS meeting of the 25th April 2012 was an attempt to find services for her daughter, but was an attempt to get her out. The senior NEPS psychologist was put under pressure to find alternatives, including a named school. In respect of the incident report of the 27th April 2012 where the special needs coordinator was pushed 4 or 5 times, the complainant’s mother said that this raised the need for SNA training and her daughter was not free to walk down the corridor. She was micro-managed by the SNA. Commenting on the report to the board of management of the 30th April 2012, the complainant’s mother said that this did not refer to her daughter’s disability. The respondent’s approach was to “judge this kid on paper”. Her daughter was never given access to the curriculum and was only being contained. The board of management did not understand the nature of her daughter’s issues. She referred to the board’s letter of the 2nd May 2012 as disgraceful as the respondent wanted to expel a child with special needs. It was unfair for the school to refer to school reports as the basis for suggesting an alternative school as her daughter had been expected to manage in the ASD unit with three students.
2.75 It was put to the complainant’s mother that her daughter was suspended between the 30th April and the 9th May 2012 and that pushing an SNA three times was a health and safety issue; she replied that her daughter was frustrated and wanted privacy. This should have been defused and the SNA was therefore culpable. The word “assault” had not previously been used. This was not a health and safety issue but the victimisation of a child. The complainant’s mother said that she was under untold pressure to move her daughter to a different school. She wanted the best for her daughter and to be in the same school as her siblings. It was put to the complainant’s mother that she rejected the report’s first recommendation of an alternative school; she replied that this was not a valid recommendation as not alternative was offered. The suggested alternative was not suitable. It would put to the complainant’s mother that she could have contacted the state bodies; she replied that the senior NEPS psychologist had said that it was for the SENO to find a placement. The supports were in place to accommodate her daughter at the respondent and this was suitable.
2.76 The complainant’s mother was referred to the health and safety issues set out in the report of the 4th May 2012; she replied that her daughter was bored while kept in a tiny room. She was stressed and reacted to the SNAs. She accepted that her daughter may have tried to escape through a window. It was put to the complainant’s mother that it was necessary for the respondent to record the incidents, as it did in the minutes of the 9th May 2012; she replied that this was not balanced. Her daughter was penalised in unfair circumstances and this caused her anxiety. It was put to the complainant’s mother that it was not helpful that she kept her daughter out of school after the incident at the Youth Needs centre; she replied that she said she kept her out for the day and the suspension was lifted.
2.77 It was put to the complainant’s mother that she referred to integrating her daughter at the board of management meeting; she replied that integration should have been continued. It was put to the complainant’s mother that she removed her daughter from the lunchtime club; she replied that she did so four years later when it was too late. It was put to the complainant’s mother that the senior NEPS psychologist and the Regional Director recommended a transfer her daughter; she replied that the respondent had the resources to accommodate her daughter and no alternative was offered. It was put to the complainant’s mother that the minutes say the respondent was not the place for her daughter; she replied that there was no magic school for a child with autism. She approached an alternative school, but this was not suitable. She wanted her daughter to stay at the respondent. It was put to the complainant’s mother that the board were to liaise with state agencies to progress another placement; she replied that the board was not democratic.
2.78 It was put to the complainant’s mother that the respondent did not accept that a named board member made the statement to her about her daughter’s IQ; she replied that this happened. The complainant’s mother was asked in respect of her letter of the 14th May 2012, whether it was her contention that her daughter should have been in school full-time; she agreed. It was put to the complainant’s mother that the increase in hours led to her daughter’s inappropriate behaviour; she replied that her daughter did well with a named teacher and people wanted to punish her daughter. It was put to the complainant’s mother that in her letter of the 22nd May 2012, she opted out of finding alternative schools, leaving this to the respondent; she referred to an email and this showed that the respondent was looking for alternatives. It was put to the complainant’s mother that she was walking away from her duty; she did not agree and said that she was responding to the school’s pressure.
2.79 It was put to the complainant’s mother that the board was not looking to expel her daughter but was looking for a more appropriate placement; she replied that she was amenable to a suitable alternative. It was put to the complainant’s mother that her positive comments of January 2012 contrasted with her negative comments about the school in May 2012; she replied that she had made the comments because of intimidation from the school.
2.80 The respondent raised with the complainant’s mother her letter of the 7th June 2012, in particular the reasons cited for not placing her daughter at a named alternative. It was put to the complainant’s mother that the Department could intervene for the reasons cited of her living outside the catchment area and there not being any places. It was put to the complainant’s mother that she recorded the alternative school has stating her daughter had “high-functioning” Asperger’s Syndrome when this contrasted the assessment of her being in the lowest percentile. The complainant’s mother referred to an email where the alternative school set out this assessment of her daughter’s level of functioning.
2.81 It was put to the complainant’s mother that in the letter of the 18th June 2012 the respondent offered assistance with home tuition; she replied that her daughter should have been in school. It was put to the complainant’s mother that her letter of the 19th June refers to “leaving it” to the respondent to find an alternative school; she replied that she always did her best for her six children. It was put to the complainant’s mother that the respondent’s letter of the 27th June 2012 indicates efforts to find an alternative placement. It was put to the complainant’s mother that her reply of the 7th July 2012 meant that it was the respondent or nothing; she replied that the respondent was the only option for her daughter to have an education.
2.82 It was put to the complainant’s mother that a named SNA left her role because of the application of LIFO; she replied that the respondent should have distinguished between SNAs in the general school and in the ASD unit. It was put to the complainant’s mother that there was no separate budget for the ASD unit and no separate set of SNAs; she replied by asking who had her daughter’s SNA hours when she was not in school. It was put to the complainant’s mother that her daughter’s hours were reduced to what she could cope with. She commented that one SNA was very good while another operated under a strict timetable and monitored her daughter. She said that the respondent did not build on the positives of her daughter’s time in the school.
2.83 In respect of the multi-disciplinary meeting of the 5th September 2012, it was put to the complainant’s mother that the uniform was part of belonging to the school; she replied that her daughter had anxiety and this included the uniform. Good steps were taken regarding preparation for class and the specialist teachers would have been good, but this did not happen. Placing her in a 24-student class was a risk because her daughter was isolated. The complainant’s mother was referred to the Behaviour Plan, which detailed a reward system for good and bad behaviour and was asked whether this was not an excellent plan; she said that it was not an excellent plan as it singled her daughter out. The use of tokens was not appropriate for her age. In respect of the multi-disciplinary meeting of the 13th September 2012, the complainant’s mother said that her daughter did not have a choice as her hours were so restricted. The SENO had said in an email that she could not “get past the board”. It was put to the complainant’s mother that this minute addressed her concerns regarding integration; she replied on paper, yes but her daughter was immediately discriminated against when she was the only child who had to stay out because of SNA training. It was put to the complainant’s mother that in respect of her return for transition year, the meetings of the 5th and 13th September were necessary to facilitate this return; she did not agree that her daughter had already missed TY events such as the fashion show. It was put to the complainant’s mother that she said that she was concerned about her daughter being in a class of 22 but there were 150 students at the fashion show; she replied that her daughter was well able to attend such events and was not a new pupil.
2.84 It was put to the complainant’s mother that there was an evidential dispute whether her daughter was taught certain subjects, for example maths and history; she replied that there was no evidence that she was taught these subjects. Her daughter did not have books, homework or curriculum and received no reports, except in first year. It was put to the complainant’s mother that her daughter had school books and they were labelled as hers and kept in school; she replied that this was not the case. It was put to the complainant’s mother that it was then too quick to seek to integrate her daughter into a class of 24; she replied that her daughter could have been integrated into TY events, such as cooking. It was put to the complainant’s mother that it was a good idea to have the ASD unit as a place her daughter could go for a break; she replied that her daughter did not have access to the ASD unit in TY.
2.85 It was put to the complainant’s mother that her position was that nothing negative should have been done until her daughter hurt someone; she replied that her daughter was punished every day. It was put to the complainant’s mother that a school could not wait for physical violence to occur before intervening; she replied that her daughter never hurt a student. It was put to the complainant’s mother that her daughter had pushed an SNA; she said that this occurred while she was being “hot-housed”.
2.86 It was put to the complainant’s mother that her letter of the 12th September 2012 emphasised social inclusion in her daughter’s TY year and this was catered for at the meeting of the 13th September; she replied she wanted her daughter to be accepted and to be part of TY. It was put to the complainant’s mother there had been three NEPS visits in September 2012 to accommodate her daughter in TY; she replied that she was upset at two years of her daughter’s exclusion. She referred to the email from the SENO about not being able to get past the board.
2.87 The complainant’s mother was referred the attempts to integrate her daughter into TY activities in September and October 2012; she said that the offer to go to the Ploughing Championships with her parent. This was embarrassing for a 16-year old and an SNA should have attended. She was not offered the possibility of having an SNA go. Her daughter did not go to Galway and she did not know about other events. It was put to the complainant’s mother that her daughter also went to the RDS event, accompanied by an SNA. It was put to the complainant’s mother that during transition year, her daughter attended school for 15 full days as well as other, shorter days and not the one full day she had referred to; she could not recall there being 15 full days.
2.88 It was put to the complainant’s mother that in the letter of the 13th September 2012, the principal expressed his regret at saying she lied at the section 29 hearing, but that he had not shouted at her; she replied that while the principal apologised, he did not withdraw his “liar” comment. The complainant’s mother disagreed with the submission that her daughter’s “abrupt return” to the class was inappropriate, as set out in the respondent letter of the 19th September 2012. It was put to the complainant’s mother that the principal offered to withdraw the comment and he did; she replied that at a later meeting, the principal stood over his “liar” comment. The principal was negative about her at a school meeting. It was put to the complainant’s mother that the principal’s evidence of the events of the 19th September would be corroborated.
2.89 It was put to the complainant’s mother that her letter of the 20th September was positive about the respondent board of management and the actions of the principal; she replied that she was very unhappy but wanted to park this and go forward for her daughter. It was put to the complainant’s mother that she had not informed the respondent about her daughter attending events; she replied that she is a lone parent with six children and this was not an urgent matter. Her permission had never been an issue. It was put to the complainant’s mother that she had written to the school during this time.
2.90 The complainant’s mother was referred to incidents reports of the 4th, 10th, 11th and 23rd October 2012. It was put to the complainant’s mother that in dealing with the four incidents, the respondent utilised techniques to calm her daughter; she replied that everything was punitive. It was put to the complainant’s mother that the incidents raised health and safety issues or were extremely disturbing; she replied that she did not know how many students were affected and her daughter had anxiety and Tourette’s Syndrome. It was put to the complainant’s mother that her daughter declined the chance of joining the TY class at workshops or on a trip; she replied that she did so because she was anxious and should have been told beforehand of the offer.
2.91 It was put to the complainant’s mother that the multi-disciplinary minutes of the 11th October 2012 show the good and the bad, the good being a settled day of the 1st October but the bad arising from the longer school day; she replied that the longer school day was an issue because her daughter should have started on the same day as the rest of TY. It was put to the complainant’s mother that the school offered to place her daughter in smaller classes and this showed the school was willing to address issues; she replied that the National Educational Welfare Board had sought home tuition to complement the teaching.
2.92 It was put to the complainant’s mother that the crisis management plan of the 11th October 2012 shows the school complied with the chartered psychologist’s suggestion of re-directing and aiding her daughter; she replied that her daughter did well with emphatic staff but did not get on with others. Everything from the respondent was negative. The complainant’s mother was referred to the minutes of the meeting of the 17th October 2012 and said that the teaching provided by the Former Principal should not have replaced school time. It was put to the complainant’s mother that the respondent’s “time out” policy reflected the chartered psychologist’s recommendation; she replied that this would have been good had it been implemented. It was put to the complainant’s mother that her daughter had been offered outings, as recorded in the IEP minutes of the 19th December 2012; she replied that her daughter did not go on the Easter trip or on work experience. The complainant’s mother was referred to the positive report for November 2012 and the times stated in the report were when the school day ended; she replied that her daughter was not attending for the full day as she started at the time stated in the document.
2.93 It was put to the complainant’s mother that the November/December 2012 report was positive; she replied that her daughter did well when she was integrated but the respondent failed to accommodate or acknowledge her efforts. Instead, she was punished at the first opportunity. The complainant’s mother was referred to the behaviour improvement targets and replied that they were targets and it was age inappropriate to use smiley faces. It was put to the complainant’s mother that she disagreed with the chartered psychologist over the use of the smiley faces as this was the example the chartered psychologist used; she replied that this should not happen to a girl of 17. She had not seen the Behaviour Plan document, dated the 4th December 2012.
2.94 The complainant’s mother was referred to the report on the RDS visit, which contained good and bad points; she replied that she had voiced her concern at past exclusions and that this was too big a trip. Commenting on the report of 4th February 2013, the complainant’s mother said that her daughter was trying to be good and had no peers in the lunchtime club. It was put to the complainant’s mother that the IEP minutes of the 26th February 2013 showed that her daughter’s behaviour had improved. It was put to the complainant’s mother that on the 26th February 2013, she decided to take her daughter out of the lunchtime club and for her to leave school at 1pm; she replied that younger children attended the the lunchtime club and her daughter was leaving after lunch anyway. The complainant’s mother was referred to her daughter’s TY timetable and the inclusion of high interest subjects such as Italian and sowing; she replied that while her daughter did cooking, she never did YSI, Italian, Irish or music. It was put to the complainant’s mother that the LCA timetable was accurate; she replied that her daughter could not do the LCA timetable because she was not in school until 5pm. The complainant’s mother was referred to progress reports for the period of December 2011 to March 2012 which had been supplied to her; she replied that she was not given these documents.
2.95 The complainant’s mother was referred to the report of the 20th March 2013, in particular the first warning and a series of other interventions to address her daughter’s behaviour in an emphathetic way; she replied that the warning system punished her daughter for her behaviour and her Tourette’s. She further disagreed that the respondent had responded appropriately to the pushing incident, saying that the teacher had punished her. She commented that the IEP document for January to March 2013 was a good plan. It was put to the complainant’s mother that the Progress Report of September 2012 – April 2013 was all about the positives; she replied that her daughter was not allowed in on Fridays. The complainant’s mother was referred to IEP minutes of the 23rd March 2013 which mentions attending school on Fridays; she replied that she had not seen this report.
2.96 It was put to the complainant’s mother that the document of the 19th April 2013 refers to Fridays and this also showed the respondent using a series of warnings to calm her daughter; she replied that maybe Wednesday was a work experience day and did not agreed that this document corroborated the respondent’s position. The complainant’s mother was referred to the note of the 23rd February 2013 and it was put to her that this lists the academic subjects provided to her daughter, corroborating their evidence; she replied that these were random subjects given to her daughter. It was put to the complainant’s mother that this report also refers to a series of warnings relating to health and safety issues; she replied that the incidents did not happen as described. She commented that the reports were written in retrospect. She could not recall an incident where her daughter had attempted to draw on an SNA’s head.
2.97 In respect of the report of the 24th March 2013, the complainant’s mother said that it would have been helpful to give her daughter positive reinforcement and not to single her out with warning cards. In respect of the report of the 23rd September 2013 regarding her daughter as an 18-year old in the school, she said that the respondent did not want her daughter to attend the school. It was put to the complainant’s mother that in the LCA year, her daughter attended school for 3 – 5 periods per day, for more than two hours; she replied that she would like to see the programme, teachers and subjects referred to in the review, dated 21st October 2013. Her daughter should have had access to the ASD unit on Fridays. It was put to the complainant’s mother that the report of the 29th November 2013 referred to positive reinforcement; she replied that her daughter’s school day should have been extended for good behaviour. It was put to the complainant the document entitled “areas needing attention” of the 29th November 2013; she replied that her daughter’s behaviour was due to being segregated and treated differently. It was put to the complainant’s mother that this document referred to her daughter attending for full days and doing Christmas exams; she replied by asking whether her daughter did the exams and was not sure if she attended on the 2nd and 3rd December. It was put to the complainant that her daughter was absent between the 2nd and 5th December; she replied that her daughter was told to stay at home. There was no paperwork about her staying at home.
2.98 The complainant’s mother was referred to the report for September 2013 to January 2014, which states that the positives include the timetable and negatives, the absences; she replied that her daughter did not attend six periods. Her daughter was absent for the whole month of December as it was too traumatic for her. The increase in hours was only on paper. It was put to the complainant’s mother that she withdrew her daughter between the 10th January and the 7th February 2014; she said that this was because of the board’s response. The complainant’s mother outlined that nothing serious happened at the incident of the 9th January 2014. This incident took place in the small kitchen, where her daughter became anxious in the presence of five adults.
2.99 It was put to the complainant’s mother that it was appropriate to extend her suspension by letter of the 25th February 2014; she replied that this was unfair. It was put to the complainant’s mother that her daughter was invited to attend the board meeting of the 24th February as it was considering expulsion. It was put to the complainant’s mother that her daughter was permitted to return to school on the 6th March 2014 when there were three SNAs available. It was put to the complainant’s mother that she was aware on the 6th March 2014 that her daughter could return to school, there was no threat of expulsion, her daughter was receiving teaching from the Former Principal, she participated in high interest classes and the NEPS Behaviour Plan was being implemented; in reply, she said that her daughter could only return to a restricted timetable, the threat of expulsion was hanging over her, her involvement with the Former Principal was nothing to do with the respondent and only some high interest classes were available. In respect of the meeting of the 19th March 2014, she said that her daughter attended school for only two hours and her hours were a carrot that was never given to her. The complainant’s mother was referred to the “agreed actions” in the plan, she replied that she would love to see this plan enacted.
2.100 The complainant’s mother was referred to three invitations sent in March and April 2014 for her daughter to return to school. She said that it was inappropriate to ask her daughter link in with the HSE during this year. The complainant’s mother agreed that she withdrew her daughter in sixth year as she could not do the year on a restricted two-hour timetable. They were so disillusioned by this time. They received further one-liners but no one came to see if her daughter was okay. Her choice was for her daughter to be in school. In respect of the respondent’s letter of the 3rd February 2015, she said that the restricted timetable was having an impact on her daughter’s mental health.
2.101 It was put to the complainant’s mother that recommendations 2 to 13 from the senior NEPS psychologist’s report were implemented (unlike what the chartered psychologist stated) for example art therapy and role play; she replied that this did not happen. It was put to the complainant’s mother that the respondent made every effort to facilitate her daughter’s participation in school, for example meetings and documents; she absolutely rejected this and described the respondent’s focus as seeking to punish and expel her daughter.
2.102 In respect of the claim of discrimination by association, the complainant’s mother referred to the two board meetings, the principal’s complaint regarding her photography, the apology incident and other parents being able to talk.
2.103 In re-direction, the complainant’s mother outlined that her daughter was to join the school in a holistic way, but her start was delayed and she was kept on a restricted timetable and isolated. In respect of the involvement of NEPS prior to her daughter’s placement, she said that there was too much fuss around her daughter, who should have been let make the transition. Her daughter had academic ability to be taught in the classroom and the longer she was kept out, isolated her. The IEP reports were unbalanced as they never heard her voice. A teacher’s hands were tied even though her daughter had a flawless time with him in years 1 or 2. This teacher was very kind, relaxed and had no issues with her daughter. He also taught her daughter over the month of July. She reported this positive feedback to the school. The complainant’s mother outlined that there was an ASD unit in the school, known as unit 7. It had a separate entrance and its own kitchen and classrooms. The former principal had prepared her daughter’s arrival to the school. Her other children had done well and her daughter had potential. Her sibling with Down’s Syndrome had positive supports and completed the junior and leaving cycles. Whether her daughter presented challenges when compared to this sibling, the complainant’s mother said that there were unbalanced reports about her daughter. The sibling had a negative experience of primary school and was only challenging in first year of secondary school. The complainant’s mother did not agree that the respondent had to balance her daughter’s needs with those of students and staff. No one had been hurt and this was over-exaggerated. There was no true assault and no physical injury.
2.104 In respect of the senior NEPS psychologist’s recommendation about finding another school, the complainant’s mother said that she had done her research and the respondent was the best school for her daughter. No other school was available in the country; one was not suitable and another not available. In respect of her daughter’s stated unsuitability for State examinations, the complainant’s mother said that her daughter never had a chance from day 1. The reading she was given was too simple and she could have gone on to do English. Her daughter was devastated that she never achieved the junior certificate and this lead to her low self-esteem. She should have been allowed to attend the classes without doing the exam.
2.105 In respect of whether there had been an attempt to integrate her daughter in TY, the complainant’s mother said that they had the chance to integrate her but this did not happen after the RDS visit. In respect of the timetable, the complainant’s mother could only recall one letter in the first LCA year and her daughter returned in May 2014. The letters were not meaningful as her daughter was receiving only two hours of schooling per day. The board and the principal would not shift their position. The complainant’s mother that after the section 29 appeal, she sought to put this behind them, but the principal was angry. The complainant’s mother said that she had no choice but to withdraw her daughter from the respondent as she was only offered two hours. She described school as a very negative experience for her daughter.
2.106 The complainant’s mother outlined that she raised taking this legal case at the second board meeting. They then put up a wall and one board member mentioned the legal case. She then lost hope and left. The complainant’s mother said that the timetables exhibited by the respondent did not reflect the true situation. Teachers were to comment normally in reports and they are positive and a help to students. Her daughter was denied this. The respondent said that the IEP reports were good enough. In respect of the use of suspension as a graduated response, the complainant’s mother said her daughter was sent home or suspended on a whim and this did not help her. The respondent continued to use suspension, instead of evaluating the impact of a suspension. The complainant’s mother said that it was not appropriate to use smiley faces and tokens. The warnings made her daughter’s anxiety worse.
- Evidence of the chartered psychologist:
3.1 The chartered psychologist outlined that she has 20 years of practice. She works for the Child and Family Agency and as a consultant in the addiction area. She outlined that as a primary care psychologist, she deals with people with undiagnosed Asperger’s syndrome and autism and would see about one such client a day. Most of the work was about managing “normal” living, i.e. meeting daily challenges. She encountered the issues faced by the complainant on a daily basis.
3.2 The chartered psychologist outlined that she had been asked to review the case, including the reports and documents prepared by the respondent, or created on its behalf. She had no issue with the reports as a reflection of the complainant’s development. She was happy to take the reports at face value. She outlined that she had sufficient basis to reach her conclusions with the qualification that there are a great many reports. They gave her a picture of the complainant’s time at school, from the school’s point of view. She also met with the complainant and did so to satisfy herself of what needed to be included.
3.3 The chartered psychologist took on board the NEPS documentation and general National Educational Welfare Board policy “Developing a Code of Behaviour – Guidelines for Schools”. Commenting on the reference in her report to the complainant’s complex issues as “singularly difficult to assimilate and accommodate”, she outlined that the complainant has neurological deficits which correlate. Adaptive responses were necessary to adapt to the needs of the individual, including changes in the child. The school was also required to communicate with the student with empathy and to adapt to the needs of the child.
3.4 In respect of the diagnosis of Asperger’s Syndrome, the chartered psychologist said that one of the consistent quirks with this diagnosis is the child’s need to know what is going to happen. This required the complainant to know her day. An Asperger’s diagnosis required the person to know their schedule. The complainant, however, was sent home on a number of occasions and the onus of adaptation was placed on her.
3.5 The chartered psychologist said that the use of supports, with modified expectations, including to the code of conduct was the most effective method for managing challenging behaviour. She said that the respondent code of conduct did not disclose empathy for the complainant, although she acknowledged that she had not spoken with the respondent. She commented that the NEWB Code of Conduct refers to flexibility in applying the code. She outlined that the Code refers to “balancing needs” and there was no doubt that the respondent needed to balance the needs of the complainant and the school. Other students could be appraised that difficulties may arise in order to get their empathy. She commented that the complainant had very particular needs but she responded to positive reinforcement. Sending her home from school was punitive and caused difficulties, in particular with her need for certainty. This was a child who was not understood and had to comply with school rules without adaptation.
3.6 In respect of Part 10 of the Code, the chartered psychologist said that serious misbehaviour needed to be placed in context. The complainant had a number of serious neurological problems and her behaviour was symptomatic of those issues. She had no pre-contemplation and was impulsive. She cannot think of her day or plan. She could not see far enough into the future. In respect of Part 11 (suspensions), the chartered psychologist commented that the document refers to alternatives prior to using suspension. The document called for the appropriateness of a suspension to be considered, including the dangers associated with suspension. The complainant did not have abstract reasoning to reflect on her actions, so there was no value in suspending her. It was detrimental to her feeling of inclusion. Giving her a time out within the school would have been proportionate and would let her know the difficulty her behaviour caused the respondent. It also allowed for positive reinforcement. There was no evidence that the respondent had reflected on the value of previous suspensions when it decided to suspend her again.
3.7 The chartered psychologist outlined that she had seen evidence in the complainant of a head tremor tic. This became apparent when the complainant was stressed. She was aware of cases where the whole class would be informed of a tic. She said that young people adapt to include those who are disabled. This can cause a tic to dissipate as the child is less stressed and more assimilated. She commented that there was no evidence that the respondent had sought to integrate the complainant.
3.8 The chartered psychologist outlined that the complainant showed evidence of an ability to learn and of “concrete functioning”. This included vocabulary, knowledge, fact accumulation and tasks requiring repetition. It was a factor of the disorder that they can do well at concrete functioning and fact accumulation, for example computer coding and history. They also faced overriding academic challenges, for example difficulties with abstract reasoning and problem solving. Such a child can do well up to the foundation junior cycle.
3.9 The chartered psychologist outlined that there was intellectual under-stimulation in case. The report states that there was no indication in the files to suggest that the complainant was afforded any opportunity in the areas that she had developed a level of esteem and confidence. She outlined that the school is a place of work and under-work was a stressor. Her report states that a “Statement of Need” would have given the complainant a voice in the balancing of needs process engaged by the respondent. She said that this was pertinent to the individual and reflected particular care plans based on the strengths and weaknesses of the individual. The complainant could voice what she was good at and this was reflected in some of the primary school reports. This was necessary and appropriate for such a vulnerable child and not unduly onerous. The complainant needed to feel in control to manage her permanent anxiety.
3.10 Commenting on the complainant’s second year, the chartered psychologist said that there were breaks in her learning. The complainant was good with the computer and could have been encouraged to learn through the computer. It was not appropriate to have suspended the complainant for five days during the year. The complainant would have found this difficult to understand. She was impulsive and her behaviour was not deliberate mischief. The suspensions did not work.
3.11 Commenting on the complainant’s third year, the chartered psychologist referred to the social inclusion report dated the 24th February 2012. She said that the complainant and people with ASD generally displayed a lack of empathy and could not place themselves in the shoes of others. It therefore falls on others to repeat to the point of boredom that the behaviour is inappropriate. It fell on others to explain to the complainant in an empathetic way what was wrong with her behaviour and its consequences. While the complainant’s comments in the classroom were inappropriate, they were normal for adolescents and part of their everyday conversation. The complainant could not read social cues.
3.12 The chartered psychologist said that the respondent’s invitation for the complainant to attend the board of management meeting of the 9th May 2012 was inappropriate. This was a challenging invitation and extremely intimidating for any child. The chartered psychologist outlined that the response of the respondent to the complainant’s unplanned behaviour showed that it did not have the expertise to cater for her complexities or to adapt to the behaviour and the child. It showed a lack of empathy. A professional training in ASD was not enough given the comorbidity in this case. She said that everyone is an individual and the complainant had varied, individual issues, requiring a creative approach. There was a need in this case for supervised and reflective practice, to look at what was done.
3.13 The chartered psychologist commented on the complainant’s success in music and her ability to integrate in a supported, high interest environment. This was an example where the complainant’s voice was heard and she progressed and was motivated. She could perform in some areas and needed support for this. She said that it was not appropriate to ask the complainant to do a daily reflection. Instead she should have been asked how “yesterday went” and what could be done to improve today. There was no evidence of this process. In respect of the lack of school reports, the chartered psychologist said that a child such as the complainant was rigid in her expectations and a report was necessary for her to feel she belonged. She could have reviewed the report with her mother. Summer recesses could have been used to build coping strategies for school.
3.14 In respect of the complainant’s fifth year, the chartered psychologist said that it was wrong for the respondent to adhere rigidly to the TEACHH programme. There were a number of programmes available and the programme applied by the respondent was for children with lower cognitive ability. The complainant was then an adolescent and a core function was to get on in the world. Social situations, in particular, groups could intimidate her but she wanted to feel integrated. She wanted to belong but could not easily adapt. The respondent consolidated the complainant’s exclusion and this would have further distressed her.
3.15 The chartered psychologist outlined that she met the complainant in April 2016. There was evidence of tic behaviour, including in movement and words. The complainant asked some personal questions, in particular her views on the complainant’s animals. The chartered psychologist described the complainant’s eye contact as “okay”. The chartered psychologist described that school was not a good experience for the complainant and she was unable to do the junior certificate or leaving certificate. The complainant described being given out to and she was left with a sense of failure.
3.16 The chartered psychologist outlined that while she did not do a psychometric assessment of the complainant, she was able to conclude that the complainant was experiencing a level of depression at her level of achievement and control. She commented on her inability to do the junior certificate and how she wanted to do well in this. The complainant felt lonely and excluded, including when she was accompanied by two SNAs. She commented that the complainant would have been less scared had there been a structure for her.
3.17 In her conclusions, the chartered psychologist sets out her assessment on the five matters raised with her in the brief for this consultation. She concluded that the respondent should have built on the strengths identified in the reports prepared before she started secondary school. Her difficulties arose in social situations. She could have been integrated in a prepared class, accompanied by an SNA. This was a successful approach for all disabilities. Furthermore, the complainant was not offered the opportunity to participate in the junior cycle. The chartered psychologist outlined that the onus to change was placed on the complainant. This was inappropriate and led to her further exclusion and feeling of negativity. Alteration of behaviour requires person-centred empathy. School staff should have risen above the complainant’s bad behaviour. Giving attention to such bad behaviour made it more likely to happen. It required a non-emotional response. Applying the code of conduct without minor amendment and not educating the student body showed that the respondent had not adapted its response to the complainant. The chartered psychologist outlined that it was not appropriate to suspend the complainant and this rewarded bad behaviour. It also heightened the complainant’s anxiety and did not have a positive effect on her. The chartered psychologist outlined that school was not an enjoyable experience for the complainant. She was judged and excluded from her peer group. She has ambitions and feels cheated of her future. She has been penalised by the lack of certification, as she has nothing to show for her five years at school.
3.18 In cross-examination, it was put to the chartered psychologist that her first psychologist post was in 2000; she accepted this and said she had worked as a therapist prior to this. It was put to the chartered psychologist that between 2000 and 2006, she worked in a role related to employee assistance; she replied that this was related to Employee Assistance and a part-time role where she sought to gain experience. She also worked in addiction services in the HSE and in private practice under the brief therapy umbrella. This was a service for families and adolescents. It was put to the chartered psychologist that this was work in addiction services and section 47 care reports, but not work in education; she replied that her interest was in the socio-emotional response of children. Her PhD related to the impact of child trauma or grief on adult mental health. In respect of her experience, the chartered psychologist outlined that she worked with schools on behalf of particular children and her first role was in brief therapy 15 or 20 years ago. She worked with half a dozen children with comparable needs in the last year and had seen three in the last month. She said that her work with schools took place as part of a multi-disciplinary team. She confirmed that she had a Diploma and PhD in Education Psychology and was a Chartered Psychologist.
3.19 It was put to the chartered psychologist that while she had met with the complainant, she had not met the respondent even though she criticised the school; she replied that she was provided with questions and the brief. She followed the brief and identified gaps in evidence. She could not speculate if her report would have been different had she met the school. She researched the respondent online and the brief included information about the school. It was put to the chartered psychologist that the respondent had put in place modified expectations of the complainant’s behaviour vis-a-vis the Code and the school had treated her with empathy; she replied that this did not show through in the documentation.
3.20 It was put to the chartered psychologist that she highlighted the importance of teaching the subject of history in her commentary on the complainant’s lack of intellectual stimulation at the school; she replied that people, especially those with ASD, liked facts. It was put to the chartered psychologist that the special needs coordinator had taught the complainant history and geography; she replied that this was not included in the documentation. It was put to the chartered psychologist that she said that the complainant needed to have a voice, but she was given a voice many times, for example in timetable choices and options; she replied that this was not very clear in the documentation. It was put to the chartered psychologist that a computer was provided specifically for the complainant, who had no interest in the computer for educational use, only for social media; she replied that there was difficulty in persuading the complainant not to follow her areas of interest and those interests could have been used to develop projects.
3.21 The chartered psychologist outlined that the respondent did not show enough regard to the issues leading to the complainant’s behaviour. The chartered psychologist was referred to the reported incidents of February 2012, which included making comments of a sexual nature and taking her uniform off. It was put to the chartered psychologist that these were the difficulties faced by the school; she accepted that the complainant presented challenging behaviour.
3.22 It was put to the chartered psychologist that the respondent had to balance the interests of 1,600 other children, of whom 400 have special needs, with those of the complainant; she replied that sending the complainant home may not have been the answer. It was put to the chartered psychologist that she took reports at face value, for example the senior NEPS psychologist’s report of the 3rd May 2012; she agreed that said that she had met the complainant for 90 minutes and spent the same amount of time with her mother. This had not been an assessment but a conversation.
3.23 It was put to the chartered psychologist that the complainant’s needs would have best been met with a referral to a special school; she replied that a special school would have been a way forward, but there was an ASD unit in the respondent. The chartered psychologist agreed with the recommendation of an alternative school. It was put to the chartered psychologist that a named alternative was mooted; she replied that the complainant was higher functioning than the children in that school. It was put to the chartered psychologist that the complainant was not high functioning as she was in the 1st percentile for adaptive functioning and it was impossible for a mainstream school to accommodate her in the junior cycle; she replied that there was a difference between cognitive functioning and adaptive functioning. It was put to the chartered psychologist that the special needs coordinator prepared students for when they spent time with the complainant; she replied that this was not documented. It was put to the chartered psychologist that the attempts at integration did not work out; she replied that this was not documented. The chartered psychologist was asked whether she agreed with the diagnoses made in the complainant’s case; she replied that her view was that the tic should have been signalled before. This was most likely worsened by stress and the references to school.
3.24 The chartered psychologist stated that it was not evident from the documentation that the respondent had been empathetic and person-centric with the complainant. It was put to the chartered psychologist that the respondent had offered rewards and ignored behaviour and it was only when there was a health and safety issue that suspension and other measures were used; she replied that there was no evidence of this in the documentation. It would have been prudent to have a log book and it was too late to address extremes. It was put to the chartered psychologist that the Code allows for suspension when there is a threat to safety; she replied that the respondent had used suspension early on. She accepted that physical assault was a health and safety matter and commented that the complainant was on her own. It was put to the chartered psychologist that other staff were present, for example SNAs; she accepted that an assault was a possible circumstance to exclude a student. It was put to the chartered psychologist that the senior NEPS psychologist would say that suspension was necessary to educate the complainant as to consequences; she replied that a lack of adaptive functioning is a lack of being able to make the link between suspension and its consequences. There was no sign that the respondent had a verified if the complainant had reflected on learning following a suspension.
3.25 It was put to the chartered psychologist that the senior NEPS psychologist would say that there was nothing more the school could have done and that the staff did their best; she replied that there was no doubt that the staff may have done their best, but people may have responded emotionally, for example the staff member who was hugged by the complainant. The respondent reacted to this as an assault but children with autism have emotional barriers. It was put to the chartered psychologist that this had not been an affectionate hug. It was put to the chartered psychologist that the Regional Director’s evidence would be that the respondent had responded appropriately; she replied that NEPS always pull out all the stops, but they were not there every day. She was asked to review the brief and she found it lacking. It was put to the chartered psychologist that a Department inspector had visited the school in 2014, following a complaint from the complainant’s mother and found that the respondent had made significant efforts; she replied that it was a pity that the documentation was incomplete.
3.26 In re-direction, the chartered psychologist said that she was aware a named alternative was mooted, and while this was outside the catchment area, this needed to have an ASD unit suitable to the complainant’s needs. The respondent had such a unit. Her reading was that the respondent failed in its duty but she may not have had all the documentation. The respondent did not understand the complainant’s day-to-day needs. The complainant was assessed in the first percentile for adaptive functioning and had strength in “self-care”. The ABAS/I test was used and identified quirks, but there may have been strengths in the first percentile assessment. The chartered psychologist said that suspensions had been used early on. There was no escalation of interventions and evidence was not obtained on the success of a suspension or intervention. It was best practice to record preparation classes for integration. There was a need for transparency in particular in large schools where children have very specific needs.
- Closing submissions on behalf of the complainant:
4.1 In closing submissions, the complainant outlined that the first claim related to discrimination incurred by the complainant on the grounds of her disability. The latter claims were claims of discrimination by association and victimisation by the complainant’s mother. The complainant submitted that the word “access” had featured prominently during this adjudication and this case involved the complainant’s access to education in the respondent school. This was a fundamental right and related not just to access to the Junior or Leaving Certificates. While participation in these programmes was absent in the complainant’s education, she also missed out on access to her peer group and the school community. The complainant was denied the opportunity of developing lifelong friendships stemming from school.
4.2 It was submitted that there was interpersonal antagonism between the complainant and the principal following her successful section 29 appeal. The complainant accepted that the school had sought to discharge their professional duties, but the question is whether it was a consequence of their actions that she received less favourable treatment on grounds of her disability. It was submitted that the answer was in the affirmative that she was less favourably treated on the grounds of her disability. The relevant statutory provisions were section 4(1) and section 7 of the Equal Status Acts and on the basis of the human right of access to education. The respondent school did not do all that was reasonable in ensuring the complainant’s access to education. It submitted that the respondent’s approach was inflexible when the complainant required flexibility, for example, in the application of the suspension policy, the use of the word “assault” and the lack of proportionality in the school’s responses to her behaviour. Reasonableness implied flexibility and suspensions were not used in a reasonable or proportionate way. The complainant’s expert had referred to the need to vary standards to accommodate certain behaviours. It was also relevant that the school had not complied with the NEWB guidelines, for example when it imposed open-ended suspensions.
4.3 The complainant outlined that the respondent had used suspension as an instrument of de facto exclusion. The respondent should have taken a different approach and it was significant that the Department experts that had heard the section 29 appeal upheld the appeal and found that the complainant had been denied access. It was submitted that the deprivation of access could occur without intention or desire. The respondent had not complied with section 4 of the Equal Status Acts in relation to providing the complainant with access to education. She had missed out and was deprived of access to educational milestones. The complainant outlined that this was not the only denial of access of her education. There were multiple examples where the complainant was not able to mix with peers and her school day ended at 11am, leading her to have a lonely time at home. The respondent should have intervened to provide for the daughter’s educational needs at this time. She was excluded from school community life, for example the athlete’s visit to the school and the fashion show. She missed out on opportunities for socialisation.
4.4 The respondent relied on health and safety concerns. It was, however, inappropriate for the respondent to use the word “assault” in relation to the complainant’s actions and this represented a gratuitous escalation of its response. While it was open for the respondent to take action in relation to these acts, it did not get the balance right between the rights of a disabled person and the interests of the school. The incidents required attention and management, but did not require exclusion. It had not proved effective to exclude the complainant from school and this left her detached from school life. The fact that the incidents reoccurred showed that the suspensions were disproportionate and ineffective; it represented the respondent’s unthinking recourse to suspension. While the respondent may have had legitimate health and safety concerns, its response could not be trotted out blindly, leading to the complainant’s draconian exclusion from the school. Adding the suspensions to her restricted school timetable led to the complainant losing 80% of her school time.
4.5 In respect of the health and safety defence raised by the respondent, the complainant outlined that the respondent had not provided an example of sufficient magnitude to justify the eternal suspension imposed on the complainant. While the complainant posed behavioural challenges, when assessed against the continuum of proportionality, the school’s response was not proportional. It was apparent from the respondent’s correspondence that it had repeated recourse to suspension and referred to expelling the complainant. It also referred to the need to find an alternative placement for the complainant. The respondent had decided that it was not the place for the complainant and it placed her, via the suspension policy, on a de facto exclusion following her mother’s refusal to move her to a different school.
4.6 In respect of the claim of discrimination by association, it was clear from the principal’s own evidence that he had made the “liar” comment to the complainant’s mother. Such a comment could only have been made as part of an acrimonious exchange and the complainant’s mother had been victimised in this regard. The principal had had to apologise to the complainant on other occasions. Following the photography incident, the complainant’s mother was victimised by not being able to cover a significant school event.
4.7 In respect of the Equality Tribunal decisions opened at the hearing, the complainant distinguished the extreme circumstances arising in Ms A (on behalf of her son v Board of Management of a primary school (DEC-S2014-016). While the schools in both cases cited health and safety grounds, the actions of the respondent took place over five years and led to the denial of the complainant to access to any education qualification and her participation in school life. The inappropriate use of suspensions, the acrimony of the interpersonal relations and the attempt to remove the complainant from the school all distinguished the instant case from the reported case. In respect of Mr X v Board of Management of a National School DEC-S2014-024, it was significant in the instant case that there were a myriad of personalised interactions between the Principal and the complainant’s mother, which was linked to her campaigning for the complainant and the successful outcome to the section 29 appeal. The Principal was displeased with this and took it out on the complainant’s mother. Commenting on Deans v Dublin City Council (Circuit Court, unreported, 15th April 2008), the complainant was not looking for perfection and nor that every demand be accommodated. In this case, the respondent had acted unreasonably in denying the complainant access to an education. In Mr X, the student had not received less education, differentiating this case from the instant one where the respondent had repeatedly relied on suspensions and where the complainant had received minimal education, leading to a diminished and severely impacted education. In respect of Mr A (on behalf of his daughter)v Board of Management of a Community School DEC-S2014-002 opened by the respondent, the complainant said that this was not analogous as in this case, the student was said to have made a threat to kill and had brandished an instrument. In respect of the NEWB guidelines, it had been established that the respondent had not adhered to the guidelines, for example the use of open-ended suspensions. The respondent had failed to justify a deviation from the guidelines and the Principal had confirmed in evidence that he would do the same again.
4.8 In respect of redress, the complainant referred to the severe consequences for the complainant, where, because of her disability, she is now in adulthood and was deprived of educational qualifications and all the ordinary benefits of a secondary school education. The complainant referred to the Constitutional right to education as well as the rights provided in the First Protocol to the European Convention on Human Rights, various UN Conventions and the Equal Status Acts. The response of the respondent school had not been proportionate and in respect of redress, regard should be had to the effect of these actions on the lives of the complainant and her mother, in particular the need to provide for dissuasiveness and proportionality of the redress.
THE RESPONDENT’S CASE
- The evidence of the senior NEPS psychologist:
5.1 The senior NEPS psychologist said that her role covered the county t in the county in which the respondent is situated. Prior to that, she worked in a HSE-funded service and in the UK. She gave an outline of her postgraduate Diploma, Masters and Doctorate in Education Psychology. She worked with several primary and secondary schools and regularly came across children with special needs. The respondent had a good reputation for children with special needs and had a resource area with classrooms.
5.2 The senior NEPS psychologist commented on her report of the 3rd May 2012 and said that the complainant presented with very challenging behaviour. The complainant found it hard to accept limits and would hug or jump on your back and be in very close proximity. The complainant was very likeable but once she imposed a demand, she became very oppositional. The senior NEPS psychologist described the complainant as being driven by anxiety. Asked whether the complainant was high functioning, the senior NEPS psychologist said that she was very verbal but had learning difficulties. Every test that was successfully completed revealed learning difficulties. The result of a low IQ test would have been because of her opposition to demands. The senior NEPS psychologist commented that the junior certificate would not have been suitable or the right focus for the complainant’s education. This was caught by the test for adaptive functioning. She commented that the complainant has great recall for music and films.
5.3 The senior NEPS psychologist said she was then a team leader and the respondent was not covered by a psychologist as the previous incumbent retired. The senior NEPS psychologist visited the school as an emergency. She asked the respondent to do a series of tests to identify triggers for the complainant. She commented that the respondent engaged with her. The senior NEPS psychologist said it was she who brought up the suitability of the school and she carried out an assessment to determine this. This followed the ‘ABC’ and “high interest” surveys. She said that the respondent principal did not put her under pressure regarding the complainant’s placement and she mainly dealt with the special needs coordinator.
5.4 In relation to the use of suspension, the senior NEPS psychologist said that some schools over-use suspension. In this case, the complainant needed to know the limits and the senior NEPS psychologist was concerned that if there was an acceptance of her behaviour, this could impact on the complainant’s ability to live in society. The senior NEPS psychologist said that it was appropriate for the respondent to restrict the complainant’s time in school as she was not able to fit in either socially or academically.
5.5 The senior NEPS psychologist said that, in relation to her first recommendation, a special school setting was more appropriate. It was also better that she not be offered the junior certificate and leaving certificate. She commented that NEPS recommends needs and not schools. A named alternative had been suggested. It was usual to go through the SENO attached to the school to identify special settings, but this required parental support. She commented that NEPS never followed up to identify placements.
5.6 In cross-examination, it was put to the senior NEPS psychologist that she had mentioned some alternative accreditation to the junior certificate but no meaningful alternative was identified by the respondent; she replied that the complainant could not sit at a desk for even four to six minutes. One needed a critical mass of students to devise bespoke accreditation. It was sometimes nice to have people like yourself and the complainant was isolated. Commenting on the difference between the respondent and a special setting, the senior NEPS psychologist said that the respondent was overwhelming as the ASD unit was a room on a corridor and the school was a busy place. It was put to the senior NEPS psychologist that had the respondent tapped into the resources available to it, the complainant could have thrived in school; she did not accept this. It was put to the senior NEPS psychologist that the complainant could have benefited from junior certificate subjects, such as music, art, baking and home economics; she replied that there were certain aspects that the complainant could have enjoyed and foundation maths may have been suitable. The senior NEPS psychologist outlined that she had not seen anything that the respondent had done wrong in the complainant’s education.
5.7 The senior NEPS psychologist did not know the details of the suspension imposed on the complainant in her first year. She outlined that she was not inclined to make findings on issues in this case, looking where things went well and to propose solutions. It was put to the senior NEPS psychologist that she was not given the full account of the school’s performance so could not make an assessment. It was put to the senior NEPS psychologist that the respondent wanted the complainant out; she replied that she did not have an opinion on this. It was put to the senior NEPS psychologist that this was a classic case of the unthinking and draconian use of suspension; she replied that there were two in each of the first three years of school, four in transition year and one on the LCA year and that this total was not a lot. The senior NEPS psychologist said that there was no research to prove the adverse effect of suspension. Her concern was that the complainant engaged in behaviour in order to be sent home, where she had less conflicts. She understood that the respondent used time-outs, praise and redirection. It was put to the senior NEPS psychologist that suspension was the default response of the respondent; she replied that she observed alternative approaches adapted by the school.
5.8 In respect of the outcome of the section 29 appeal, the senior NEPS psychologist said that she expected schools to carry out such recommendations and the respondent had asked for help. It was put to the senior NEPS psychologist that her recommendations were mainly not implemented; she replied that she did not know whether this was true or not. In respect of her second recommendation, it was put to the senior NEPS psychologist that the complainant was never understood or respected; she replied that her recommendation was for the family and respondent to find alternative ways to assess the success or not of a school day. A school would be reasonably expected to ask students how they enjoyed school. The senior NEPS psychologist was asked about her third recommendation and the reference to daily support; she replied that the ASD unit consisted of just classrooms and teachers. In respect of the named alternative, the senior NEPS psychologist said that she did not know how many verbal/non-verbal students were in the school. She agreed that another alternative was not suitable.
- The evidence of the Regional Director:
6.1 The Regional Director outlined that she was a Regional Director with NEPS. She had been both a teacher and a special needs teacher, including in the context of a special setting. She had worked with NEPS for 16 years and had a Masters and doctorate in Education Psychology. She had reviewed the NEPS file related to the complainant, including all psychology reports and the notes of the NEPS interventions. She reviewed the IEP reports and the report of the chartered psychologist prepared on behalf of the complainant. The Regional Director said that she reached a contrary conclusion to those of the chartered psychologist and the section 29 appeal hearing. The Regional Directorsaid that the complainant was not high functioning, evidenced by the NEPS report of 2008 prepared while the complainant was in primary school. The Regional Director commented that her lower adaptive functioning was a point of differentiation. It would not be appropriate to send the complainant to a non-verbal setting.
6.2 In cross-examination, the Regional Director commented on the complainant pursuing the junior certificate or alternative accreditation that she saw efforts to introduce a choice-based timetable and to cover curriculum areas in her interests. It was put to the Regional Director that the respondent should have tailored the timetable to the complainant; she said that her review of the IEP reports indicated that the respondent did as recommended. She got the sense of a purposeful attempt by the respondent to provide a timetable of subjects to the complainant. The Regional Director rejected the contention that the respondent had used suspension repeatedly. There were a small number of suspensions, leading to a positive response, for example in second year. It was put to the Regional Director that there was no health and safety issue arising from sexual acts involving the complainant as this occurred in a class on her own or in a small class. The Regional Director further agreed that a 48-day suspension in third year was disproportionate. She said that the lack of school reports was probably not an issue. Reports were normally done by subject teachers, so this was not appropriate or relevant in the complainant’s case. Her family were aware of the level of intervention and a report would have been demoralising. It was put to the Regional Director that reports would have provided validation and it was a worry that they were not provided; she replied that reports would not have documented progress.
- The evidence of the SNA:
7.1 The SNA said she has worked for the respondent for ten years and had a total of 17 years as an SNA. She worked with the complainant in the LCA year. She described the ASD unit as a corridor with seven or eight classrooms, known as unit 7. There was also a kitchen and a multi-sensory room. There were no other students in the room used by the complainant. She did various classes with the complainant, for example Social Education, PE, Science and English. The complainant would also attend the LCA class of about 15 students at classrooms across the school.
7.2 The SNA outlined that work experience on a Friday was part of the LCA programme. There was vocational preparation to help the student and parental help was needed to find a job. The complainant’s mother found a place for her daughter at a named facility and she could also have gone to an animal welfare centre. The complainant did not do work experience.
7.3 The SNA commented that the complainant has a great sense of humour and a great ear for music. She was great one-to-one but found it hard to work with peers. She could say awkward things and was nervous in corridors. She could be physical and pinched the SNA as a coping mechanism for stress. The complainant could not cope in crowds.
7.4 In respect of the incident of the 18th September 2013, the complainant went to approach a group of girls and the SNA stepped back. Another girl joined the group and the complainant began hitting this girl. The group pushed the complainant off, who ran away, bashing into everyone. The complainant was out of control and the SNA shouted at her. The complainant’s sister was called to fetch her. The complainant ran into town and they pursued. They caught up with her and went into a coffee shop.
7.5 The SNA outlined that there was another incident involving this same girl. The complainant became agitated when this girl came into the room to sell tickets and the girl left. The complainant followed the girl and said to her “you cut yourself”. The SNA outlined that the complainant was saying something she had seen in a private email. The complainant repeated this many times. The girl went white and the complainant became very distressed. The SNA then called for the complainant to be collected.
7.6 The SNA outlined that the complainant could not connect with her peers. One girl gave time to talk with her and they developed a relationship. They arranged for the complainant and this girl to have lunch, but there was an incident where the complainant pulled this girl’s hair back. This was the day the complainant was gyrating and simulated masturbation in the classroom. The complainant went to a room and told the SNA that she was going to hurt her. The complainant grabbed the SNA’s arms and they grappled until the special needs coordinator came to help. The SNA said she was shaking and never thought the complainant would hurt her. The SNA then broke down, crying. She commented that the Former Principal was present.
7.7 In respect of whether the school jumped to punitive action, the SNA said that she gave positive reinforcement of the complainant’s good behaviour. She only reported things that had a direct effect on the complainant, on other students or on staff. If the complainant lasted ten minutes in a class, she was given positive reinforcement. They worked with the complainant in 10/15 minute blocks. She was always allowed to go on the computer, to keep her hands busy and on the table. This stopped her smelling herself and simulating masturbation. The complainant was the only student allowed use the computer. The complainant was brilliant at the tin whistle and knitting. She was encouraged to speak about her interests, such as the ‘X Factor’. In respect of whether the principal placed pressure to have the complainant removed, the SNA said that she never spoke with the principal about the complainant. She dealt with the special needs coordinator. While the principal attended meetings, there was no pressure on her.
7.8 In cross-examination, the SNA said that she first worked with the complainant in September 2013, at the start of the LCA year. She would have known the complainant from her work with the complainant’s sister, who needed help in all areas. The SNA knew that the complainant was physical and she was aware of her specific and challenging needs. She spoke to the complainant about her interests. The SNA outlined that she attended maybe two planning meetings and was given her file. They spoke about bringing in high interest topics for the complainant. The SNA said that she felt that the complainant had done all she could academically by the start of the LCA year.
7.9 The SNA outlined that she had always said to the complainant’s mother that two hours school per day was enough for the complainant. She was difficult at the start of the school day and would say she hated being in school. The complainant was full of anxiety. It was put to the SNA that the complainant should have been exposed to the junior cycle, for example music; she replied that the complainant could not sit down for five minutes and could not fulfil tasks. She could not have done junior cert music. The SNA had no comment on the value of the junior cycle or on the value of an amended junior certificate curriculum, with no exam.
7.10 It was put to the SNA that there was a benefit of routine in a timetable; she replied that the complainant was late some days. The SNA brought high-interest resources, such as magazines, to grab the complainant’s attention and to encourage her to stay in school. She commented that the complainant often planned absences. She said that they got on with the complainant and that they “turned ourselves inside out” for her. The SNA agreed that it was best to have the complainant in school and this was for as long as she could manage.
7.11 It was put to the SNA that it was inappropriate to suspend the complainant for so long; she replied that the complainant was not suspended while she worked with her in LCA. She agreed that the complainant was absent for a great deal of time. It was put to the SNA that 48 days of suspension was not reflective of the respondent “turning itself inside out”; she replied that she felt out of her depth, especially when the complainant simulated masturbation in class. She commented that the complainant needed professional help. This issue was included in the Behavioural Plan of the 9th November 2013 and the complainant’s mother had outlined that her daughter had a referral to adolescent psychiatry. The SNA said that there were four or five incidents where the complainant simulated masturbation in class.
7.12 It was put to the SNA that other behaviour did not merit suspension; she replied that the complainant was often absent or withdrawn by her mother, for example after the incident involving the girl who self-harmed. It was put to the SNA that the decision to withdraw the complainant was taken extremely reluctantly; she replied that the complainant’s last month in school was May and she came in with the HSE. She attended 4 or 5 days and her school day was 9 to 11. She was very relaxed and should have come back in sixth year.
7.13 It was put to the SNA that the respondent resisted the elongation of the school day and it was too short a school day; she replied that any time the day was lengthened, this stressed the complainant and incidents would occur. She saw the complainant become very stressed when she stayed until 3.45pm. She might not then come to school the next day. The SNA said that the complainant received time-outs, choices on her work and trips to the canteen. She was praised for the classes she attended. They used warning cards to keep her in class for 10 or 15 minutes. The SNA said she warned the complainant about constantly speaking about a pupil whose parent had taken their own life. This warning was given to calm her down. It was put to the SNA that the warnings were inappropriate; she replied that NEPS recommended the warning cards and they were very beneficial in stopping the complainant’s behaviour when it was challenging. The visual warnings were very effective when the complainant was “in a state”.
7.14 It was put to the SNA that the complainant not doing work experience on a Friday was an example where the normal course was not sufficient for a child with disabilities and the respondent should have done more to find her a work experience placement. The SNA replied that the complainant’s mother had raised the possibility of work experience at a named restaurant or at an animal welfare facility. The SNA suggested a centre for people with learning difficulties and there would have been a place there for her. The complainant was like some other children who did not do work experience. It was put to the SNA that the complainant’s sibling was supported in getting work experience at a named retailer; she replied that she accompanied the sibling to the retailer and the sibling had agreed to work there. The SNA had discussed work options with the complainant and she did not want to work at this retailer. They discussed other work options and the retailer was not an option for her. It was put to the SNA that it was incumbent on her to encourage a placement with the retailer; she replied that she felt they had encouraged her.
7.15 It was put to the SNA that the complainant was too troublesome so she was treated differently than her sibling; she replied that the complainant had anxieties. It was put to the SNA that reasonable accommodation required the respondent to find the complainant a work experience placement; she replied that finding a replacement was a joint thing, working with the parent. It was not because of her disabilities that she did not find work. The SNA confirmed that she was the staff member who accompanied the complainant’s sibling to work experience at a retailer. It did not work out for her sibling at the retailer. It was put to the SNA that the respondent also assisted the sibling attending a Youth Needs facility; she said that the sibling attended this facility but could not recall any involvement of the respondent.
7.16 It was put to the SNA that she had described the complainant as being uneasy in crowds and the SNA had said “she did not mean harm” and “coped by pinching”. The SNA was asked whether the word “assault” was appropriate in this context; she replied that there was a difference between pinching and squeezing to the incident of the 9th January 2014 when the complainant “came at her”. She said that if a student thumps another, what do you call that. The complainant’s pinching was not an assault. There were incidents where the complainant may have grabbed a student and given the directive to let go. This was intimidating and not nice. The SNA disagreed that the incidents were blown out of proportion and that the complainant did not pose a real or an ongoing threat.
7.17 It was put to the SNA that it was difficult to accept that the principal never spoke to her about the complainant, given his difficult relationship with the complainant’s mother and the threat to expel the complainant; she replied that this was the truth. This was a large school and she did the lunchtime club, so was not in the canteen at lunch time. She sent the school, including the principal, her incident reports. She dealt with the special needs coordinator and never requested a discussion with the principal. It was put to the SNA that the lack of contact between her and the principal represented an “institutional failure” on the part of the respondent; she replied that she liaised with the special needs coordinator, who was her first port of call.
7.18 It was put to the SNA that while she said she was intimidated and upset after the incident of the 9th January 2014, she was well equipped to defuse the situation; she replied that the complainant said “I am going to hurt you” and came at her. Her arms were pinned to the wall and the complainant ran at her. She said that there were no triggers with the complainant and this was unexpected. She never thought the complainant would turn on her.
7.19 In re-direction, the SNA said that the placement at the retailer would have been overwhelming for the complainant.
- Evidence of the special needs coordinator:
8.1 The special needs coordinator outlined that she was a qualified teacher and had worked in a high support residential unit. She retrained in special needs education. She holds postgraduate diplomas in Special Educational Needs and Education Leadership. The respondent had 400 students with special needs of a student population of 1,600. It was typical to have 25% of the population with educational needs. 10% had SEN needs, arising from dyslexia or low IQ. The special needs coordinator outlined that 30 students in each year were taught in two special classes. She said that the respondent includes everybody and had received a good SEN inspection in 2011. The special needs coordinator said that the ASD unit was located on the ground floor and had two small classrooms, to accommodate a class of 15 in each. The unit was also used by students getting additional support.
8.2 The special needs coordinator outlined that in 2008, she and the former principal planned for three students with autism coming to the school, including the complainant. She applied to the NCSE for an ASD class and was allocated 1.5 teacher and two SNAs for six students. This represented 10 hours of resource teaching per student and ¾ of an SNA per student. Other students joined as the complainant went through the school.
8.3 The special needs coordinator said that the allocation allowed the complainant to have an SNA for the full day, or even to have two SNAs. She commented that a computer was installed in the classroom at the end of Year 1. She said that ASD enrolment allowed students to access the mainstream school and to dip in and out of the ASD unit. The two other students were taught in a separate classroom to the complainant and had their own teacher. They wanted the complainant to attend for the full school day and to increase her hours.
8.4 In respect of the complainant’s transition from primary to secondary school, the special needs coordinator said she would run a transition programme with the primary school and the parents. She had four meetings with the SENO, the NEPS Psychologists and an OT regarding the complainant. The respondent developed a low sensory room for the complainant. She met the complainant’s mother on many occasions and ran the transition programme for the complainant. In her last year of primary school, the complainant attended the respondent for six afternoons with an SNA to facilitate this transition. The complainant’s timetable at primary school was reduced to one hour per day and she had a teacher and a SNA of her own. The complainant had not developed peer relationships, had exhibited difficult behaviour and could not access the curriculum.
8.5 The special needs coordinator outlined that the complainant started at the respondent on two hours per day. The complainant made some progress at the start but struggled to get into school. She then refused to enter the school and hated the uniform. She also refused to walk down the corridor or to sit. She was provided with a teacher and an SNA. She was offered academic subjects. In year 1, she was offered numeracy, literacy, history, chess, computer studies, music, art and animal welfare. In year 2, she was offered maths, trips to town to buy goods, basketball and PE. They wanted to get the complainant out of the ASD room into other rooms. In year 3, the complainant was offered Irish, Maths, science, religion, art, wood, literacy, numeracy, social education, history and geography. She always had a choice. In transition year, the complainant was offered film studies, art, English, history, science, religion, PE, Irish and Italian. She was also offered international cuisine, Zumba, music and YSI. The special needs coordinator outlined that she sought to integrate the complainant into her forthcoming LCA year by her attending a third year history class going straight to the LCA. In LCA 1, the complainant was offered Irish, science, English, hotel tourism and catering, social education, maths, IT and music. She was offered crafts in a mainstream class of 15.
8.6 The special needs coordinator outlined that she met the complainant every morning. They did relaxation techniques such as square breathing. They discussed her behaviour. They had the resources in place in the ASD unit. The special needs coordinator said that the complainant had an excellent reading age, way above the average. Her comprehension was at a lower level, equivalent to second class of primary school. In respect of her participation in the junior cycle, there was the practical aspect of being able to attend school, to listen and focus. It also required taking direction and engaging with the curriculum.
8.7 In respect of the length of the school day, the special needs coordinator outlined that the optimum time was two hours. Strenuous efforts were made to increase the school day. In transition year, for example, there were 15 full days in the year. There were other days that she remained in school to 2 or 2.15pm. The complainant attended for four full days in the LCA 1 year: the 9th, 10th and 12th September and the 25th November with some other long days. As the respondent increased the school day, the complainant would be absent the following day, out of her own choice.
8.8 In respect of school books, the special needs coordinator said that the complainant had ziplock folders, books and a colour-coded timetable. She used differentiated books with a new cover to hide the fact that they were not the same as the junior certificate books. She would not do homework and the books were kept in school. In respect of school reports, the special needs coordinator outlined that the respondent provided a daily record of the complainant in school as well as the IEP meetings. There was continuous feedback. The complainant was not doing examinations and this was the usual reason for giving reports.
8.9 In respect of the complainant’s integration with peers, the special needs coordinator that they tried to integrate her in first year, for example into a PE class. The special needs coordinator spoke to the class in advance and this was a strong class with a good teacher. The complainant chose not to go and on one occasion, she ran away on entering the classroom. They also tried reverse integration where they brought in a second-year to join the complainant. The complainant went under the table and called the student a lesbian. She threw a chair at the teacher.
8.10 The complainant’s mother suggested attending school as her daughter’s SNA. The complainant attended a special needs Irish class and they asked the class to ignore the complainant’s behaviour. After the second day, the teacher said that it was no longer appropriate for the complainant to attend as she was calling the other students “retards” for not being able to read. The special needs coordinator said that an attempt at integration was made in second year in a life skills class, but this did not work out as the complainant kept bringing the class back to sex. She was also hurtful to another ASD child by calling him ugly and commenting on his spots. The special needs coordinator said that NEPS were involved in transition year. They attempted integration involving a game of tennis. The complainant also went into the science class in transition year. The teacher had come down to get to know the complainant and her SNA. The complainant joined the science class and stayed for five minutes. This was a success. A second attempt was made to integrate the complainant into the Irish class. This involved two students, one SNA and the special needs coordinator in a 15 to 20 minute class. This continued into the LCA year. The complainant also attended the JPSE class of 15 students.
8.11 In respect of the corridor, the special needs coordinator said that the complainant would not walk down the corridor unless accompanied her SNA. She would grab onto them and this was part of her behaviour. She was physical and they were afraid of the complainant going into someone’s physical space. The special needs coordinator commented that the IEP minutes refer to the preparation work done in this case. It was not possible to document every interaction. In respect of the allegation that the respondent was quick to criticise the complainant, the special needs coordinator said that everyone praised the complainant and ignored a huge amount of her behaviour. They always focussed on the positive. If things were not going well, they would do something else, take a time out or re-direction.
8.12 In respect of the ending the school day and the use of suspension, the special needs coordinator said that the only time the complainant was suspended followed an assault. This was a health and safety issue. The warning cards helped to keep the complainant on track. NEPS had said that they were appropriate and good for people with Asperger’s syndrome, where visual cues were important. The warning card would be quietly placed next to the complainant, so as not to draw attention to her behaviour. They were a good cue to calm her down and would not have been obvious to everyone else. In respect of the smiley face, the special needs coordinator said that people with autism are visual and the smiley face was very useful for the complainant. They absolutely worked for her and helped self-regulation. The special needs coordinator said that the suspensions arose from a health and safety issue and they had a duty of care to all students. In respect of the 48-day period of suspension, the special needs coordinator said that part of this was time pending assessment and board of management meetings.
8.13 In respect of letting the complainant chill and relax, the special needs coordinator said that when they considered sending the complainant home, her behaviour would already have escalated. She could be running around, leading to the locking of classroom doors. They hoped that sending her home would reinforce the consequences of physicality or bad behaviour. The special needs coordinator outlined that the complainant could not have been accommodated in a mainstream post-primary class. They did not have access to an OT or psychologist on site. The SNAs were trained and also provided for care needs, such as toileting issues. They would build a relationship with the student. The respondent’s SNAs had Therapeutic Crisis Intervention (TCI) training, which was unusual for a post-primary school but common in high support units. The complainant’s base line behaviour was different to others, for example her physicality or the things she said. The TCI training dealt with escalation from the base line. The special needs coordinator said that she was calm with the complainant, as she was with six other high support students. Shouting was counter-productive. In respect of whether the school wanted the complainant out, she outlined that the principal was very inclusive and supported all. She confirmed that the SNAs reported to her and she reported to the principal.
8.14 In respect of the senior NEPS psychologist’s report, the special needs coordinator said that they implemented all 13 recommendations involving the school and were taking these steps prior to her report. The complainant’s voice was heard and they implemented a course called “Socially Speaking” and provided art therapy. She debriefed staff every day. There was NEPS support at the complainant’s transition from primary school and from the point in time of the senior NEPS psychologist’s report. There was a period of 2.5 years with no NEPS support. The school was “off-line” as one psychologist was sick until a named replacement was appointed.
8.15 The special needs coordinator outlined that there were 150 to 200 students present at the fashion. This would have been challenging for the complainant, who found it difficult to walk down the school corridor. In respect of work experience, the special needs coordinator outlined that it was a parental job to find a suitable placement. The SNA would have accompanied the complainant to any placement. In respect of the trip to the RDS, the special needs coordinator said that they had prepared the complainant and it was appropriate for her to go. She confirmed that the respondent obtained parental consent. The SNA offered to accompany the complainant to the ploughing championships and it was not a requirement that the complainant’s mother go. The complainant declined to go. A teacher and SNA offered to accompany the complainant on the trip to Galway and to have transport available to take her back at any time. The complainant declined to go.
8.16 The special needs coordinator said that the first and second years assembled to welcome the Olympic champion. This was a large group and an intense event. The complainant had a phobia of the uniform. The special needs coordinator outlined that the complainant’s non-attendance in April 2014 arose because she was withdrawn from the school and not because she was suspended. The complainant could have returned for the second year of LCA, on a restricted start in order to establish routine. She outlined that the LCA was project-based with continuous assessments. There were four examinations. A computer-based project would have suited the complainant.
8.17 The special needs coordinator said that the complainant had hit and hurt a student. In respect of the 9th January 2014, the special needs coordinator said she was called down and knew there had been issues in the classroom. The complainant had gone into the Life Skills room. The special needs coordinator put her hands on the complainant to get her off the SNA. The complainant then twisted the special needs coordinator’s arm. In first year, the complainant had sprayed cleaning fluid at her. The complainant pushed, shoved and jump on her back. The special needs coordinator it was difficult for the complainant and difficult for the staff. The special needs coordinator said that, hand on heart, this was the most difficult placement she had dealt with. It would have been necessary to have a clinical therapist on site, a service that would be available in a high support unit.
8.18 In cross-examination, the special needs coordinator accepted that the respondent enrolment policy referred to an “ASD unit” and said that this consisted of classrooms. The teaching allocation for the unit was ringfenced and provided for two SNAs and 1.5 teachers. It was put to the special needs coordinator that there was an obligation to devote funding to those in need; she replied that the resources were allocated and available for the six students to dip in and out off. There was an ASD teacher available for the complainant at all times. In respect of the two other students based in the ASD unit, the complainant had opportunity to meet with them but she insulted them. It was normal that ASD students would not integrate together. It was put to the special needs coordinator that the respondent had the opportunity to integrate the complainant with the two other ASD students; she replied that this was not appropriate as their needs were not similar.
8.19 In respect of the NEWB guidelines, the special needs coordinator said that the guidelines were in the school, but she did not use them on a day-to-day basis. She was referred to the section dealing with the grounds to suspend and it was put to her that the respondent did not comply with this provision and had used and abused suspensions. She replied that in first year, there were two periods of suspension on the “threat to safety” ground. It was put to the special needs coordinator that there was no evidence the respondent reviewed the impact of sanctions; she replied that they did review the impact of sanctions. They looked at triggers and used the ABC chart. The complainant’s behaviour was impulsive and they could not identify triggers.
8.20 The special needs coordinator was asked about the process used to identify alternatives to suspension; she replied that as the complainant’s behaviour escalated, chill outs were not appropriate as she was running around. The special needs coordinator was asked whether there was a systemic review of alternatives; she replied that they did not suspend every time and they could not contain her in the school.
8.21 The special needs coordinator was referred to the section 29 appeal outcome. She agreed that she attended the appeal hearing and that the document refers to the ASD unit. She accepted that the appeal had found that the complainant’s suspension was incorrect. She accepted the statement that you can have all the timetables you want unless they are implemented. It was put to the special needs coordinator that the complainant did not have the practical reality of a timetable; she replied that the complainant had a full timetable and this reflected the practical reality. It was put to the special needs coordinator that the paltry two hours restricted the complainant’s development; she replied that the complainant had an attention span of five minutes and they had to fill the time and could cover the timetable in two hours. It was put to the special needs coordinator that there was no attempt to elongate the school day; she replied that they had demonstrated that this took place, 15 full days in TY and four in LCA 1. They were very supportive of the complainant, including supporting her going into class. The complainant often absented herself for days.
8.22 It was put to the special needs coordinator whether she considered building on the 15 days; she replied that they facilitated her in staying when she wanted to. They increased the time by 20 minutes per day to the number of days achieved at LCA. It was put to the special needs coordinator that the complainant was awarded the “most improved student” award for TY; she agreed and said that the complainant deserved this award. It was put to the special needs coordinator that the complainant had great potential; she replied that she had, given where she came from, especially in TY which was unstructured.
8.23 It was put to the special needs coordinator that the complainant’s potential was not nourished; she did not agree with this. It was put to the special needs coordinator that the respondent was totally remiss in that the complainant did not engage with the junior certificate curriculum; she replied that this was not possible for the complainant as she did not attend school for long enough and nor did she engage. She would not have been able to do the junior certificate and could not do the Life Skills course, part of Home Economics. The complainant was exposed to content of the curriculum, for example cooking and life skills. The complainant’s literacy and numeracy skills were at the level of a second class pupil.
8.24 It was put to the special needs coordinator that no strategies were followed to promote her motivation for academic development; she did not agree and said that the complainant was not motivated to do academic subjects. She outlined that the complainant’s journal was frequently sent home. In respect of homework support strategies, the special needs coordinator said that the complainant did not do homework or would take weeks to do assignments. She knew that homework would be a source of conflict. It was put to the special needs coordinator that the complainant was on her way home at 11am every day and lacked stimulation in her long days at home; she replied that the complainant had an afternoon plan with her mother and it was obvious that homework was not possible.
8.25 It was put to the special needs coordinator that it was deeply regrettable that the complainant was excluded from the fashion show in TY; she replied that it would have unfair to put her into the fashion show, given her exclusion and limited socialisation. While the complainant had an SNA, they would have been setting her up to fail. It was put to the special needs coordinator that there was an obligation on the respondent to consider safeguards to enable the complainant to attend the fashion show; she replied that they had followed a phased approach and everything was done slowly. The fashion show took place too early in the school year.
8.26 It was put to the special needs coordinator that the complainant posed no risk of harm; she replied that she was assaulted several times by the complainant, even though they got on and she liked the complainant. It was put to the special needs coordinator that words such as “assault” and “intimidation” were not appropriate; she replied that the complainant’s behaviour was threatening and this was not okay. She would not have used the term “intimidation”. The only time the word “assault” was used was when someone was hurt.
8.27 It was put to the special needs coordinator that a report was a great source of encouragement and it was a failing of the respondent not to provide one; she replied that the complainant was not in school and did not sit examinations. There was no need for reports given the amount of IEP meetings and the fact the complainant did not sit examinations. Progress reports were given every day. It was put to the special needs coordinator that reports would have provided the complainant with validation; she replied that the complainant received plenty of validation every day. In respect of the complainant’s sister, she received reports because she completed some junior cycle subjects and the LCA.
8.28 It was put to the special needs coordinator that the complainant was withdrawn from school because it failed to encourage her; she replied that she had looked at all types of support. They had a budget for nine NEPS days. She asked why the respondent would invest in the six NEPS reports and the Psychologist’s intervention, which came out of their budget, if they were getting rid of her. They sought support from the HSE, who worked with the school.
8.29 The special needs coordinator was referred to email from the NEPS Psychologist of 26th March 2014 where the reference to the respondent board suggests the NEPS Psychologist did not agree with the board’s approach; she replied that she did not agree with this interpretation of the email. In respect of the complainant’s exclusion from Irish, she said that all LCA students would normally get the Irish exemption. It was the complainant’s choice whether to do LCA Irish. It was put to the special needs coordinator that the complainant’s mother said that this was tokenistic recognition of her daughter being in school. The special needs coordinator was referred to the journal that was signed for only 20 days between the 10th and 30th September 2013; she replied that the journal was given to the student and sent home.
- The evidence of the principal:
9.1 The principal outlined that he had been teaching for 25 years and started off in the respondent school. He worked in other schools. He was the Assistant Principal of the respondent and from 2009, its principal. Out of choice, he continued to teach in the school.
9.2 The principal outlined that he attended the IEP meetings relating to the complainant. In respect of whether he pressured NEPS and the SNAs for the complainant to leave, he said that this was definitely not true. His whole aim with any student was for a successful placement. His aim was for students to do their best and to achieve their potential. NEPs were the professional body and made recommendations, which he did not influence. While the principal knew the SNAs, given the scale of the school, line managers acted as middle managers. In this case, the special needs coordinator was the SNA’s line manager and liaised with them. The principal met the special needs coordinator every week and they also met informally. He denied trying to achieve a negative outcome for any student.
9.3 In respect of the reduced timetable, the principal outlined that the school was successful because of its interest in their students. This means that they put in place measures to support students. The respondent held meetings prior to the complainant’s arrival at the school. They were outward-looking and took advice, so following the meetings with the professionals, they provided a reduced timetable for the complainant, with a view to later lengthen the school day. It would have been unfair to move the complainant from a reduced timetable in primary school to a full timetable (9am to 3.45pm) in first year. This would have placed unrealistic expectations on the complainant.
9.4 In respect of suspensions, the principal outlined that this was not a decision made lightly. The aim of the IEP meetings was to build on success, but there were points when the health and safety of the school were compromised. They penalised the hair-pulling incidents and this was distinct from physicality such as pushing or grabbing. He said while “assault” was a strong term, they had to look at the safety and care of staff. They used suspension as a sanction on health and safety grounds. He commented that 1,571 students attended the respondent.
9.5 In respect of the suspension in third year, the principal referred to the serious assault incident of the 23rd April 2013. The complainant and her mother were invited to the board of management meeting. It was part of the protocol to invite the student and their parent to the board meeting. At this time, they were waiting on the senior NEPS psychologist’s report. While there had been some successes, this had been a challenging year. The complainant’s suspension was extended waiting on the report. They received the report on the 8th May, close to the end of the school. Given the first recommendation of the senior NEPS psychologist, they asked the complainant’s mother to look for a more appropriate placement for her daughter. They said that they would look at the complainant’s return to the school as she had accessed multi-disciplinary support. He commented that when the complainant’s mother indicated her daughter was interested in doing transition year, they sought to foster good relations even though enrolment had closed the previous December or January.
9.6 In respect of the incident of the 9th January 2014, the complainant was then withdrawn and she was not suspended. They did not know what was going to happen and imposed the suspension once the complainant’s mother said her daughter was coming back. The suspension ended in February 2014 and the school wrote to the complainant’s mother in March and April 2014 to invite her daughter back to school. The principal said that the timetables exhibited were accurate. The school did not operate in a vacuum and relied on NEPs and other support. The principal outlined that the school timetable reflected her absences and this had been her mother’s choice. The complainant was not suspended at this time. The principal stated that the complainant was never formally withdrawn from LCA 2.
9.7 In respect of punishing the complainant for her disability, the principal said that they tried very hard to create a learning environment for the complainant. He said that, unfortunately, he felt that there was no alternative but to proceed with an extended suspension when the health and safety issues arose. In respect of whether the complainant’s and her mother’s voices were ignored, the principal said that this was not true. The complainant’s mother was very involved right from the transitioning process from primary school and was part of the IEP meetings. In respect of the “liar” comment, the principal said that during the section 29 appeal hearing, the complainant’s mother had led the committee to believe that he had shouted at her. This was a slur on him and his professionalism. He said that the assertion was untrue and he had not shouted at the complainant’s mother.
9.8 The principal accepted that at the TY meeting he had said that the complainant’s mother lied. The complainant’s mother was upset and angry at this. She asked for the comment to be withdrawn. The principal said that he then re-convened the meeting and withdrew the comment. This was in the interest of good relations and to try to repair a fractured relationship. The principal denied the allegations made against the board members and said that there had been no aggression and the meeting was respectful.
9.9 In respect of the allegation of penalisation arising from the photography incident, the principal said this arose from a visit to the school from “cycle against suicide. The first years gave the cyclists an informal guard of honour as they left the school. A parent complained that the complainant’s mother was taking photographs of the first years, so the principal put this to her in writing. He commented that there was a difference between taking photographs of first years and of a 6th year graduation.
9.10 In cross-examination, the principal was asked about the respondent’s training of staff who cater for students with disabilities; he replied that the respondent had a reputation for catering for students with special needs. The reason for this success was the training of staff where nine teachers were qualified in this area. In respect of the principal’s own training in this field, the principal said that as a teacher he taught small learning support classes. He had not completed a named Diploma, but had attended in-service training. A management body gave training to principals to help equip them with dealing with students with disabilities. The principal said that he delegated SEN management to the special needs coordinator. He did a Department of Education course on liaising with parents of SEN children and encouraged staff to take up the Diploma or other SEN training.
9.11 The principal outlined that “Croke Park” hours allowed the respondent to provide additional training to teachers. This included staff members who received training passing on this learning to other staff. The respondent had a staggered entry system to allow for an orderly start to the school year, including to first year. The special needs coordinator would go through with staff the new students with disabilities joining the school. In respect of the NEWB guidelines, the principal said that the respondent took these into account in drafting its Code of Conduct. He had completed training in the guidelines. It was put to the principal that the respondent failed to adhere to the guidelines; he replied that this was not true. The guidelines refer to physical threat and health and safety. They had used “tactical ignoring” a lot with the complainant, but it got to the point that health and safety became compromised. He had to look at the bigger picture, to health and safety. It was put to the principal that the respondent used suspensions in contravention of the NEWB document; he replied that this was not true and suspensions were used appropriately on health and safety grounds.
9.12 In respect of the section 29 appeal, the principal said that this recommended that the complainant be allowed return to school. Her suspension had been extended because of the forthcoming NEPS report. They felt that the complainant was not appropriately placed in the respondent. The principal said that the complainant’s mother did not want to look at different settings, preferring for the complainant to continue at the respondent. He said that the respondent welcomed the complainant back to school. It was put to the principal that the “grace and favour” he says he gave the late application for TY contrasted with the section 29 finding against the school; he replied that the complainant was welcomed back to the school, but there was an application process for TY. In respect of whether the principal had day-to-day involvement with the complainant, he outlined that he saw the complainant in school and spoke with her. He did not teach her. The principal was visible in the school and would ask the complainant how she was getting on. It was put to the principal that he had a grossly deficient level of interaction with the complainant; he disputed this and given her conditions and challenges, it was not appropriate to liaise with the complainant on a regular basis. This would make it look as if he was singling her out.
9.13 The principal was asked whether he warned the complainant’s mother that her daughter was at risk of expulsion; he replied by saying that the NEWB guidelines require that if a serious incident, for example an assault, is discussed, the student should know that expulsion is a possibility. They were required to refer to the possibility of expulsion in letters sent to parents. He said that different students required different approaches. Given the complainant’s anxiety, it was not appropriate for him to approach her directly. It was put to the principal that the complainant’s interaction with the former principal showed the benefit of direct interaction; he replied that the former principal was not the school principal at the time he interacted with the complainant, so this interaction was appropriate. The principal supported the ASD unit and there was no change in regime on his arrival.
9.14 The principal was referred to the complainant being sent home at 1pm every day as set out in her mother’s letter of 24th January 2011 and this was one of many letters asking for a stratagem to increase her hours. The principal replied that the paragraph referenced identified issues for the complainant. They did not want the complainant to be on a restricted timetable. Their aim was to gradually increase her school day, but she was unable to cope with a longer school day. It was put to the principal that, systemically, the respondent had failed to practically ensure that the complainant was stimulated, for example using school liaison service; he replied that, because of his involvement in the IEP, there was a huge input to increase her school hours, which was their aim. The respondent supported the application for home tuition. It could not send a teacher to the complainant’s home.
9.15 It was put to the principal that it was not suitable to use the word “assault” in the letter of the 24th January 2012; he disagreed and said that when staff were under a physical threat, they distinguished between “assault” and “physicality”. In respect of the references to assaults involving students, the principal outlined that there were incidents involving students. He had a duty on health and safety grounds. He said that the response was proportionate and it was his responsibility. It was put to the principal that there was no evidence of proportionality in the letter of the 24th January 2012; he replied that they put positive interventions in place, for example praise, but they were dealing with a serious incident. The complainant needed to go home and the staff needed to be protected. It was put to the principal that the duration of the suspension was the 24th to the 31st January 2012, just shy of a week, and why was the complainant not suspended for only one day; he replied that they suspended for a week in a serious incident.
9.16 In respect of whether the suspensions were effective, the principal said that they were successful in the complainant’s early years. The aim was for the child to understand the inappropriateness of their actions. This would involve their parents. At this point, the senior NEPS psychologist’s report said that the respondent was not an appropriate placement. The suspensions did not prove successful as the complainant was misplaced in the school. It was put to the principal that the suspensions allowed the respondent to wash its hands of the complainant; he replied that this was not true. They and the professionals discussed the incidents to see if they could avoid a reoccurrence. It was put to the principal that the letter does not consider an alternative to suspension; he replied that the purpose of the letter was to formally notify the complainant’s parents of her suspension. The complainant’s mother attended the IEP meetings and would have known the reasoning. It was put to the principal that the suspension was just a knee-jerk reaction to get rid of the complainant; he replied that this was not true.
9.17 It was put to the principal that, in respect of the letter of the 2nd March 2012, there was a contradiction between his claim that suspension had been successful with the senior NEPS psychologist’s suggestion that the complainant was misplaced; he replied that the repeat suspensions show the complainant’s misplacement and the respondent’s commitment to hold professionals’ meetings on the incident, despite its seriousness. It was put to the principal that this letter does not refer to the infraction; he replied that the details of the incident were already communicated to the complainant’s mother. It was put to the principal that the delay to the 21st March 2012 was too long; he replied that it was his intention that the complainant would be suspended until the board meeting. They endeavoured to hold the meeting as early as possible and the 21st March 2012 was the earliest date.
9.18 The principal said that in most cases, they communicated the length of time of a suspension, but this was not always possible. In this case, it depended on the professionals’ input. It was put to the principal that this was an example where the complainant received less favourable treatment in being given an open-ended suspension; he replied that this was not true. There was more favourable treatment as they convened the meeting of professionals regarding the complainant. It was appropriate to wait for the professionals. In respect of not notifying the complainant of the timeframe of the suspension, the principal said that it was necessary in this case to have the meeting of professionals. He said that the purpose of a time limit was so the child knows when they are going back and to know that they will be allowed back. It was put to the principal that this applied in all cases so that the child knows they have access to the school; he replied that the complainant was going to return but this demanded the meeting of professionals.
9.19 The principal was asked whether he was aware that the NEWB guidelines that there should be a start and end date to suspensions; he said that he was aware of this. There were exceptional circumstances in this case and it was not possible to give an end date. The principal was referred to the guidelines which states that there should not be open-ended suspensions as they would be treated as a de facto expulsion; he repeated that he was aware of the guidelines. The principal was asked whether he communicated with the complainant’s mother about departing from the guidelines; he replied that he informed the complainant’s mother of the need for the professionals’ meeting regarding her daughter.
9.20 It was put to the principal that the respondent was in breach of the guidelines in imposing an open-ended suspension of more than three days. It was further put to the principal that it became customary to suspend the complainant for one week when the guidelines state that the suspension should not exceed three days and if so, it should be referred to the school board. The principal replied that there was flexibility in the guidelines. The respondent principal had authority to suspend for five days and would consult with the board for longer suspensions. It was not always possible to hold a board meeting.
9.21 In respect of the purpose of the letter of the 15th March 2012, the principal said that this was sent inadvertently and should not have been sent. It was put to the principal that the respondent was over-cautious in its approach as set out in the letter from the complainant’s mother dated the 16th March 2012; he did not agree that the respondent was over-cautious.
9.22 The principal was referred to the letter of 2nd April 2012 referring back to a suspension between the 13th and 17th September 2010 and it was put to him that this suspension was not warranted; he replied that this letter must have been issued in response to a request. An assault warranted suspension. They documented incidents and this revealed the serious nature of the 2010 incident. It was put to the principal that there had been no need for the suspension arising from the incident at the Youth Needs centre; he replied that this incident had been documented. The complainant’s mother approached him and was upset. He agreed to reduce the suspension. It was put to the principal that it was not appropriate that he be involved in the suspension following the cycling event as he had participated in the event; he denied this and said that each incident was assessed on its merits.
9.23 It was put to the principal that the letter of the 2nd May 2012 and the suspension pending the board was part of a cycle of suspension. He was asked whether the complainant’s suspensions were effective; he replied that the complainant was suspended with just cause and on health and safety grounds. It was put to the principal that it was telling that he relied on the senior NEPS psychologist’s first recommendation and that the cycle of suspension was used as an instrument of de facto exclusion; he replied that this was not true. With reference to his statement that the respondent was not able to meet the complainant’s needs, it was put to the principal that he wanted the complainant out and relied on an ineffective instrument of suspension to get the next best outcome to expulsion; he replied that their work over five years showed their commitment. The complainant was a vulnerable young person but her difficulties were accelerating and growing. There were also ongoing issues. It was put to the principal that the suspensions were not effective; he replied that they were doing several things for the complainant, for example the meeting of professionals.
9.24 In respect of the letter of the 4th May 2012, the principal was asked whether the complainant attended the JCSP celebration; he replied that he could not remember. An invitation was issued and he thought that she did not attend. She was not following the curriculum. It was put to the principal that the complainant was deprived of an important milestone in her life; he replied that the complainant did not do the JCSP so would not have received the Department of Education certificate. It was put to the principal that the complainant could have achieved the JCSP with supports; he did not agree.
9.25 The principal was asked about the letter of the 10th May 2012 extending the complainant’s suspension beyond that date; he replied that the suspension followed an increasing number of school assaults. The extension was to give an opportunity to find an alternative school. It was put to the principal that no reason was given; he replied that the suspension followed previous letters of suspensions and the reasons were given in those letters. It was put to the principal that the letter refers to an alternative placement so shows that suspension was used as de facto exclusion. It was put to the principal that the letter of the 14th May 2012 from the complainant’s mother raised the number of days lost to suspension; he replied that in third year, the complainant lost days in the 30s to suspension. It was put to the principal that this was out of all proportion; he replied that they followed serious assaults. It was put to the principal that the complainant disputed that the assaults were so serious.
9.26 It was put to the principal that the letter from the complainant’s mother of the 22nd May 2012 refers to the complainant being enrolled in the school and this was evidence of the school being aware of the pending case and evidence of victimisation; he disputed that either the complainant or her mother were victimised. It was put to the principal that the outcome of the section 29 appeal was the finding that the complainant had not been given full access to education; he replied that he did not accept the outcome as the complainant was enabled to access resources. The reduced timetable was reflective of her ability to attend school. He outlined that the respondent accepted the section 29 recommendations and facilitated the complainant’s return.
9.27 It was put to the principal that the complainant’s mother was victimised following the section 29 appeal as he was extremely displeased at the outcome; he disagreed and he was not displeased. He did not fully agree with the outcome, but did not appeal and sought to implement it. He did not victimise the complainant’s mother. The principal accepted that he said the complainant’s mother had lied. It was unfortunate that the complainant’s mother gave an inaccurate account of the “shouting” incident. This was not true. The principal said that for good relations, he was willing to withdraw the comment. He said that his comment of the complainant’s mother “lying through her teeth” was inappropriate. It was put to the principal that his reference to “slur” shows that this was personal; he replied that this was not the case and this was professional and not personal. He had been the person at the centre of a slur or misrepresentation. He was not angry with the complainant’s mother. It was put to the principal that calling the complainant’s mother a liar could only be made acrimoniously; he did not accept this.
9.28 It was put to the principal that he mocked the complainant’s mother at a meeting, referring to her “agenda”; he denied mocking her at the meeting. He did refer to her “agenda” at a meeting for parents of sixth years (the year of the complainant’s sibling). He had become aware that she had mentioned the section 29 outcome to teachers who had nothing to do with the complainant. The principal suggested at the meeting that the respondent give awards for academic excellence. The complainant’s mother publicly criticised the proposal. He felt that she was continuing an agenda and stated “she had an agenda”. He was later informed that the complainant’s mother was upset and agreed to meet her to say sorry. It was put to the principal that his emphasis on being undermined showed his interpersonal antagonism; he said that this was not the case. He said that this was an attempt to undermine him, a professional attack.
9.29 It was put to the principal that he was ill-disposed to the complainant and her mother; he disagreed. It was put to the principal that there were attempts to victimise the complainant’s mother for the notification of this case and the section 29 outcome; he replied that the shouting allegation pre-dated the ES 1 notice. It was put to the principal that following the outcome of the section 29 appeal, it would have been inappropriate for the respondent to refuse the complainant enter TY; he replied that the outcome required that the complainant return to school, either in TY or in 5th year.
9.30 It was put to the principal that there was no implementation of recommendations 2 to 12 of the section 29 outcome; he replied that this is in dispute and that they were implemented. In respect of the learnings from the appeal, the principal said that they recognised the outcome and continued to work with the complainant. He did not agree with the conclusion on the access issue as the complainant was given full access to the school. The principal was asked what the respondent did differently after the section 29 outcome; he replied that they welcomed the complainant back to school and into TY. There was a significant improvement in her behaviour in TY.
9.31 It was put to the principal that the respondent had issued one-liner suspension letters; he replied that the contents of a letter depended on the circumstances, so there would be more detail when there was less contact in the past. It was put to the principal that the complainant had received the award in TY of the most improved student and this demonstrated that her placement in the school was appropriate; he replied that the report was the report and the complainant would flourish more in another setting. The progress made showed the respondent’s commitment.
9.32 It was put to the principal that his actions in the LCA 1 year were too little, too late, in particular the letters inviting the complainant back to school; he replied that this was not true. The respondent gave a huge commitment to include the complainant in school. It was creative and listened to advice. The LCA was more restrictive than TY. In respect of the decision to withdraw the complainant in April 2014, the principal said that they sought to deal with the HSE. They did not suggest that the HSE would meet the complainant and her mother. The respondent did not ask for such a meeting. It was put to the principal that if he wanted the complainant to stay, he should have personally informed the complainant that she was welcome back; he replied that they spoke with the complainant’s mother a lot and the complainant was welcome back. In respect of whether he liaised with the SNA, the principal replied that he dealt with the special needs coordinator. It was put to the principal that this lack of contact with the SNA was a systemic failing; he said that this was not so.
9.33 It was put to the principal that the photography incident was victimisation as the complainant’s mother had been asked to take photographs. It was further put to the principal that not revealing who complained about her photographing amounted to victimisation of the complainant’s mother; he replied that he had not said who had complained as they were local people and known to the complainant’s mother. This would not have been comfortable. It was put to the principal that he could have provided a redacted complaint or made a restricted allowance to take photographs. The lack of proportionality was because the complainant’s mother was a thorn in the school’s side and penalised. The principal disagreed and said that the complainant’s mother was not a thorn in the side of the school. She was a parent doing her best for her family.
9.34 It was put to the principal that the complainant’s handwritten letter of the 8th April 2014 was a sad letter and an indictment from the complainant; he agreed that it was a sad letter and he felt for the complainant. He said that the respondent did its upmost for the complainant and it was not a sad indictment. The principal outlined that the Department of Education inspector did not find that the respondent had a case to answer. He said that the SENO concluded that the complainant’s placement was successful.
9.35 In re-direction, the principal said that the incident report of the 29th July 2012 was provided to the complainant’s mother and the contents given to her verbally. He confirmed that the complainant’s mother was present at the multi-disciplinary meeting of the 21st March 2012, which referred in its minutes to the incident of the 29th February 2012.
- Closing submissions on behalf of the respondent:
10.1 In closing submissions, the respondent submitted that the High Court in 2004 (in Clare (A minor v Minister for Education and Science and others [2004] IEHC 350) held that a school was entitled to conduct a balancing exercise between the needs of any one student and the needs of the wider school community. The instant case was difficult and two different pictures of the complainant’s time in school were presented at the adjudication. The picture presented by the complainant’s mother was that her daughter was high functioning and that the school had over-exaggerated her behaviour. The respondent’s position was that the complainant presented with challenging behaviour, especially of a physical, sexual and verbal nature. It referred to the incident reports, the impartial NEPS psychologist reports and the compelling evidence of the SNA. It submitted that the complainant’s mother had sought to achieve her best for her daughter and her other children, but her evidence to the adjudication was exaggerated and contradictory. The complainant had referred to emails to a special school but had not produced the emails in evidence. She had said that she had never seen a journal, but later changed this evidence. She had said that she had not withdrawn her daughter from the LCA 1 class, when she had. The respondent contrasted the inconsistencies in the complainant’s evidence with the veracity of the evidence given on its behalf and that the conflicts of fact should be determined in its favour.
10.2 The respondent outlined that the complainant’s mother had withdrawn her daughter from the school and this was how her education came to an end. She had also been withdrawn for two months in the preceding year. The respondent had not expelled the complainant and nor had the suspensions amounted to a de facto expulsion. The suspensions imposed on the complainant were either time-limited or until such time that a particular meeting could occur. The respondent submitted that it had provided the reasonable accommodation to the complainant, pointing to how it conducted her transition from primary school and the fact that the complainant spent five years in secondary school as compared to her four primary schools. It referred to the multitude of IEP meetings and the involvement of professionals. The respondent submitted that everything was done within the resources available to the school. The lack of an alternative school for the complainant could not amount to a discriminatory act by the respondent. The respondent had sought to integrate the complainant, with some success and also involved her in school activities. It explained why she did not participate in particular events. It was a parental duty to find a work experience placement and referred to the barrier faced by the complainant due to her social anxiety in doing a role similar to that of her sister.
10.3 It was submitted that the school had positively reinforced the complainant’s achievements and referred to the “most improved student” award she received in transition year. The “smiley faces” initiative was thought good by the complainant’s expert witness. The timetables showed that the complainant accessed academic subjects. She had full days in school and the respondent sought to extend her school day. It submitted that the complainant could not cope with longer school days and there were examples when this was not successful. It submitted that the respondent did everything it could to provide access to education. The evidence of the NEPS Psychologist’s evidence was that she had not been pressurised by the respondent in issuing her recommendations.
10.4 In respect of suspensions, the respondent relied on the High Court decision in Clare, where the Court referred to the need for a balancing of rights. While the complainant referred extensively to the effectiveness of suspensions, this overlooked that the imposition of a suspension represented a balancing of rights. The respondent submitted that there were assaults so there were health and safety issues. The school could not wait for a student to be hurt in order to act. There came a point when the only action open to the respondent was to issue a suspension.
10.5 The respondent relied on the test outlined in Deans v Dublin City Council (Circuit Court, unreported, 15th April 2008) with regard to reasonable accommodation. The respondent submitted that Mr A (on behalf of his daughter)v Board of Management of a Community School 2012/48 was on all fours with the instant case, in particular the SNA’s evidence that the complainant had said to her “I will hurt you” as well as other incidents. It was significant that the complainant succeeded in a section 29 appeal against an indefinite suspension. It was also significant that it was the complainant’s mother who withdrew her daughter from school. It was submitted that no prima facie case had been established in the victimisation claim to link the acts complained of to the complainant’s mother raising issues with the respondent about the education of her daughter.
- Findings and conclusions:
11.1 The central issue in this case is whether the respondent secondary school discriminated against the complainant during the course of her placement at the school. The question is whether the respondent failed to provide reasonable accommodation to her needs. While the student’s mother also referred complaints, this report refers to the student as the complainant as the focus is her access to education. The complainant did not attend the adjudication and her mother adduced evidence on her behalf. Three professional witnesses gave evidence, one for the complainant and two for the respondent. Three witnesses gave evidence for the school. The evidence covered the entire time of the complainant’s time in school. It included incidents relating to the complainant’s behaviour as well as periods of suspension. It covered numerous IEP and other school meetings. The evidence disclosed several significant conflicts in the evidence, which are addressed below.
11.2 It was not in dispute the complainant’s education was significantly curtailed. It was submitted on the complainant’s behalf that she lost 80% of her time in school. This is more optimistic than the Former Principal’s assessment, who stated that the complainant may have lost 90% of her time in school. What is in dispute is whether the respondent discriminated against the complainant and failed to provide her with reasonable accommodation. Her mother was clear that the respondent punished her daughter for her disability. The respondent asserted that it acted appropriately and had to intervene for reasons of health and safety.
11.3 It goes without saying that there is a huge sadness in this case. The complainant was unable to complete a second-level education. It was also a greatly stressful experience for her. The evidence indicated that she has many talents and is very likeable. I also acknowledge that the complainant’s mother made a great contribution in helping her daughter and in campaigning on her behalf with the respondent and other services.
11.4 There is a statutory presumption that a child with special needs will be educated in a mainstream setting. Section 2 of the Special Education Needs Act, 2004 provides:
“2.A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with—
(a) the best interests of the child as determined in accordance with any assessment carried out under this Act, or
(b) the effective provision of education for children with whom the child is to be educated.”
11.5 It was not in dispute that the complainant has a disability within the ambit of the Equal Status Act. The diagnoses set out in the various assessments state that the complainant has attention deficit hyperactivity disorder (ADHD), Oppositional Defiant Disorder (ODD) and Asperger’s Syndrome. The chartered psychologist suggested that there was evidence of Tourette’s Syndrome and tic behaviour and this was corroborated by the psychiatrist involved in the complainant’s care. The evidence addressed the complainant’s cognitive and adaptive functioning, with the complainant assessed as displaying much stronger cognitive functioning than adaptive functioning. It was a feature of this case that the complainant found it difficult to interact with adults and other children both in the classroom and in other settings. Her mother described her as having a great amount of anxiety, while the respondent pointed to her challenging and physical behaviour. This included physical interaction with staff as well as spitting. It included simulating acts of a sexual nature. It further included making comments to staff and fellow students. I am satisfied that all the actions described in the evidence are manifestations of the complainant’s disability.
11.6 The relevant provisions of the Equal Status Act are sections 4 and 7. Section 4 provides:
“(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.
(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—
…
(b) the person responsible for providing a service in respect of which section 5(1) 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
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.
11.7 It is clear that section 4 of the Equal Status Act obliges the service provider to do all that is reasonable to provide special treatment or facilities to allow the person with a disability to avail of the service where it would be unduly difficult or impossible for her to do so otherwise. This is an assessment made objectively. It is an expansive obligation as it requires all that is reasonable. As opened by the respondent, the Circuit Court held that the solution offered by the service provider must be reasonable and need not be perfect. Section 4(5) refers to the provisions of the Education Act that relate to special needs education. This is a “without prejudice” provision and ensures, in my view, that special education needs fall within the ambit of reasonable accommodation and the Equal States Act.
11.8 The obligation set out in section 4 is qualified by the reference to cost more than a nominal cost. This was not a significant feature in this case as a teacher and SNA were assigned to the complainant for her time in school. There were issues with the availability of a NEPS Psychologist and home tuition, discussed below. Section 4(4) provides that there is no discrimination where a school treats differently a person with a disability where they could cause harm to themselves or to others. This was a central issue in this case. While this is a significant qualification to the obligation to provide reasonable accommodation, the extent of the qualification is curtailed by words “to the extent reasonably necessary”. This prevents the application of a set or universal response to any particular behaviour. In order to be a reasonable response, the treatment must be assessed on a case-by-case basis. It is also significant that section 4(4) refers to “harm” and does not use other terms, such as “loss” or “inconvenience”. The Oxford English dictionary defines “harm” as “1. Physical injury to a person 2. Damage done to a thing 3. A bad effect.” The term “harm” must be interpreted strictly.
11.9 Section 7 of the Equal Status Act provides:
“7. (1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the 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.
(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.”
11.10 This provision imposes an extensive obligation on educational establishments not to discriminate against students in their admission or participation in the school, or in considering any disciplinary sanction or expulsion. This obligation is limited by subsection 4, where compliance with the obligation would make it impossible or have a seriously detrimental effect on the provision of education to other students. This provision was relied on by the respondent as referred to in Clare (A minor v Minister for Education and Science and others [2004] IEHC 350.
11.11 Section 38A sets out the burden of proof in equal status complaints:
“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.”
I find that the complainant has established a prima facie case in relation to discrimination on the disability ground and the failure to provide reasonable accommodation. This relates, in particular, to the very significant curtailment of the complainant’s time in school, the respondent’s use of suspension and the marshalling of the complainant while in school. It is for the respondent to rebut the presumption of discrimination.
11.12 The evidence disclosed several conflicts of evidence. It is necessary to resolve them as far as possible. First, there is a significant conflict over the nature and gravity of the complainant’s behaviour. The respondent said that this presented a health and safety issue, while the complainant’s mother said that the respondent exaggerated the incidents and had also contributed to them in the manner a teacher and the SNA marshaled her daughter. The complainant’s mother said that the respondent never spoke about her daughter’s achievements or her good behaviour. Two of the respondent witnesses had extensive dealings with the complainant: the SNA and the special needs coordinator. The SNA had previously worked with the complainant’s sibling. This was successful and the complainant’s mother praised the SNA. As submitted, the SNA gave compelling evidence of her interactions with the complainant. The SNA spoke about significant reasonable accommodation, where the complainant would pinch or squeeze her as a means of managing anxiety. She gave a detailed account of the incident of the 9th January 2014. She describes this as an assault and taking her account and the witness statements together, no other word can be used. As described by the SNA, the complainant came at her without warning and pinned her to the wall. I appreciate that, by this stage, the complainant was 17. The evidence points to her baseline behaviour as being physical and the incident of the 9th January 2014 represents a significant escalation. It certainly constitutes “harm”.
11.13 The SNA gave first-hand evidence of interactions between the complainant and other students. One incident involved repeatedly saying to a student that she cut herself. It transpired that this was true and the complainant learnt this from reading a private email. It is worth pausing to consider that when looking at “reasonableness” and the other terms used in section 4 and 7 of the Equal Status Acts, we are not just considering one person with disabilities against a body of people without disabilities. We are considering interactions between people with disabilities, in this case, with a person who self-harms. There were other incidents involving the complainant, for example when she referred to other children with special needs as “ugly” or “retarded”. This is not, of course, a criticism of the complainant, but to establish the context in which the respondent should be assessed.
11.14 In respect of the rest of the SNA’s evidence, I note that the SNA saw value in the use of visual cues and rewards. In assessing whether this was age-appropriate, I note that the complainant praises her piano teacher for awarding her gold stars in her typed letter of the 9th April 2014. Visual aids were an appropriate and successful means of assisting the complainant. I note that the SNA gave evidence of the complainant being taught various subjects and this corroborates other evidence of subjects taught to the complainant. In respect of the work placement, I note that there were options open to the complainant to pursue (a restaurant or a facility with people with special needs). I note that work experience at a named retailer was not pursued. There is no basis to criticise the respondent for this, in particular where the work experience of the complainant’s sibling was cut short by a customer giving a well-intentioned tip to the sibling. The retailer operates a large store at this location and it is difficult to see the placement being a success as the complainant’s first role in the workforce.
11.15 The special needs coordinator played a significant role during the complainant’s time attending the respondent. The special needs coordinator attended multi-disciplinary meetings prior to the complainant’s placement with the respondent. She participated in a great many IEP and other meetings. The associated documentation indicate that the special needs coordinator made calm and measured interventions at the meetings. This was reflected in her evidence to the hearing. It is clear from the evidence that the respondent adapted to the complainant’s needs. Starting from her limited timetable at the end of primary school, the respondent sought to extend her school day. They innovated by attempting integration and reverse integration. When something did not work, they tried a different approach. The documentation prepared by the special needs coordinator showed that the respondent offered the complainant different subjects, including high-interest activities. There was a conflict in evidence regarding whether the complainant had school books kept in school. Having considered the special needs coordinator’s evidence, I resolve this conflict in the respondent’s favour. The complainant was supplied with school books, stored in zip-lock bags.
11.16 The special needs coordinator dealt with the complainant’s challenging behaviour. She decided on occasion to send the complainant home. She demonstrated a flexible and tailored response to this behaviour. The complainant’s spitting was initially a reason to send her home, but the respondent adapted and no longer sent her home. The respondent adapted its uniform policy because the complainant had a phobia about wearing it. This was an appropriate adaption to her needs. The respondent also explained what happened in respect of certain events in the school or school trips. Some of these events were more “intense” than walking along a corridor, something the complainant found difficult. The complainant was able to join the RDS trip and could have gone on others.
11.17 It is obvious that the principal and the complainant’s mother had a number of difficult interactions. Correctly, the Principal apologised to the complainant’s mother on two occasions. Having reviewed the evidence, I note that the Principal took the reins of the school at the time the complainant’s placement commenced. The special needs coordinator took the leading role and the Principal attended the IEP meetings from the start of the complainant’s placement. I count that the Principal attended 25 IEP or multi-disciplinary meetings relating to the complainant. Section 18 of the 2004 Act allows a principal to delegate his functions in relation to a student with special needs; the Principal did not avail of this. The NEPS report of 1st October 2013 gives an update on nine students, including the complainant. I do not know whether the Principal attended the IEP meetings of these other students, but he attended those involving the complainant. There are over 1,500 other students in this school, one of the largest in the country. The principal’s involvement in the complainant’s education cannot fairly be described as detached. I note that most of the meetings related to updating on progress or finding solutions to problems. Very few considered the complainant’s expulsion. The respondent accepted the outcome of the section 29 appeal and the complainant engaged in the LCA course after this.
11.18 What is apparent from reviewing the above evidence and the documentation contained in several lever arch files is that the respondent, the complainant’s mother and others spent a great deal of time seeking to identify the triggers of the complainant’s behaviour. This, in turn, shaped how much time the complainant spent in school
as well as the suspensions and her marshaling on the school grounds. I appreciate the need for the respondent to establish what triggers caused the complainant’s behaviour. Ultimately, a mainstream secondary school is a place where students and staff intermingle in classrooms and across the school grounds. It is not a secure facility where sudden, unexpected behaviour can be addressed immediately. The only trigger identified for the complainant was too long a school day. This was the reason the respondent continued the practice of the last primary school of restricting the complainant’s day to one hour. The documentation and evidence show the respondent’s repeated attempts to extend the school day, with some success.
11.19 The complainant was suspended from school on several occasions. The suspensions followed serious incidents, although the first suspension was revoked. Those incidents include hitting staff. Two suspensions were left open-ended pending either a meeting of professionals or a board meeting. The role of these meetings was to identify triggers for the complainant’s behaviour or to address her future in the school. In this context, the open-ended suspension was not a de facto expulsion. I note that one of these suspensions arose from the incident of the 29th February 2012 where the complainant pulled the hair and tried to punch a teacher. The second open-ended suspension followed the incident of the 27th April 2012 where the complainant pushed an SNA away. To rely on section 7(4) of the Equal Status Act, a school must make an assessment of reasonableness for each sanction. Given the nature of the acts leading to suspension and the reengagement of the IEP process on the complainant’s return to school, I find that the respondent behaved reasonably. Ultimately, the complainant was withdrawn from school and not expelled.
11.20 In respect of marshaling the complainant, the SNA gave evidence of interacting or backing off from the complainant as appropriate. This correlates with the statements submitted on behalf of other staff. In the context of a mainstream school, it was appropriate and necessary for the complainant to be accompanied by adults during the school day. Taking the above findings together, I find that the respondent has rebutted the inference of discrimination arising from the length of the complainant’s school day, the use of suspension and her being accompanied by adults during her school day.
11.21 It was a disappointment that the complainant was unable to participate in the junior cycle. There is, however, no evidence that the respondent could have done anything more to facilitate the complainant’s participation. It adapted to the complainant’s interests and behaviour. The special needs coordinator provided a year-by-year account of the academic subjects taught to the complainant. They covered the complainant’s areas of interest. They included languages (English, Irish and Italian) and subjects related to life skills and film studies. There was unfortunately no prospect of the complainant being able to formally participate in the Junior Certificate. It has not been suggested that reasonable accommodation includes the obligation to devise once-off bespoke accreditation.
11.22 Whether the complainant should move to a special school was an issue of contention between the parties. The senior NEPS psychologist recommended an alternative placement. I appreciate the difficult position faced by the complainant’s mother in finding another school. Everyone agreed that the local special school was not suitable. The respondent suggested a named school in a neighbouring county. It is clear from this other school’s letter (exhibited in the complainant’s lever arch file) that it would not admit the complainant. The letter cites that the complainant is outside its catchment area and there were no places available. The complainant’s mother would have been required to avail of the section 29 procedure to secure a placement at the school. One other option was inappropriate as it was residential and another option (Blackrock) was only suggested at the hearing.
11.23 There are a number of wider issues that impacted on the complainant’s education. The first is the issue mentioned by the respondent in evidence. For 2.5 years, the respondent was “off-line”, without any NEPS support. This arose when a vacancy was not filled. NEPS had played an active role in the complainant’s transition to secondary education by attending multi-disciplinary meetings. There was no further NEPS involvement until the senior NEPS psychologist’s “emergency” intervention in May 2012. The consequence was that NEPS did not support the respondent during the complainant’s first years of secondary school. It is a shame that the recommendations set out in the senior NEPS psychologist’s report were not implemented earlier, where they may have had a greater contribution to the complainant’s education. A consistent NEPS intervention may have avoided some unorthodox steps taken by the respondent, for example arranging for members of An Garda Síochána to speak with the complainant. While well-intentioned, there was no evidence that this intervention was a success or prudent.
11.24 I have concluded above that the complainant’s reduced time in school was not discrimination on the grounds of disability. I am conscious of the difficult situation faced by the complainant and her mother with so much time at home. I note the active steps taken by the NEWB to secure home tuition for the complainant. The respondent also supported this application. I note the Department’s reply of the 17th May 2012. This is a pro forma reply, stating that as the complainant has a placement, she is not entitled to home tuition. There is no consideration of the complainant’s circumstances. This is clear because the letter refers to the complainant by the wrong name and refers to her as male. It also addresses the complainant’s mother by the wrong name. More significantly, the letter does not refer to the limited time the complainant was able to spend in school. It does not take account of the growing disconnection the complainant must have had with education. Not only was the complainant spending little time in school, she was not doing homework. I note that the HSE later supported home teaching but as part of the complainant’s transition out of secondary education.
11.25 The complainant’s mother asserts that she was subjected to discrimination by association and victimised. I find that incidents raised do not amount of adverse treatment within the ambit of victimisation. Nor has it been established that the acts were linked to the complainant’s mother raising issues about her daughter’s access to education. The incidents arising from the cycle against suicide event and the parents meeting are not facts of such significance to raise a prima facie case of discrimination by association or victimisation.
- Decisions:
12.1 ES/2014/0084 and ES/2014/0161
In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decisions: the complainant has failed to establish that the respondent discriminated against her or failed to provide reasonable accommodation, contrary to the Equal Status Acts, 2000-2015.
12.2 ES/2014/0160
In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: the complainant’s mother has not established a prima facie case of discrimination by association or victimisation, contrary to the Equal Status Acts, 2000-2015.
_____________________
Kevin Baneham
Equality Officer / Adjudication Officer
21st September, 2018