Complainant

Respondent

Anonymised Parties

Primary school student

Primary School

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 – 2018.

CA-00021739-001

10/09/2018

The Complainant’s case was brought on his behalf by his father. He was not in attendance.

The Claimant was born in 2007. He has been diagnosed with attention deficit hyperactivity disorder (ADHD) and Oppositional Defiant Disorder (ODD). These disabilities were acknowledged by the Respondent.

He has a behavioural plan in place for his school attendance. This was agreed between his parents, the school, CAMHS and NEPS.

His claim was that he was discriminated against in relation to a school trip that he was not allowed to go on. His claim was that his disability was not accommodated for, despite the efforts of his parents to reach a suitable arrangement with the school in relation to the trip. He had issues in relation to the manner and timing of the communication to him of the decisions made by the Respondent.

I have anonymised the parties as the Claimant is a minor.

The Claimant submitted that the Respondent made its decision on the school tour without any proper investigation as to the feasibility of his attendance or without exploring the options of his attendance as presented by his parents.   He further submitted that, the Respondent did not reasonably accommodate his disability and it did not give him a right to reply to their decision.

The school trip was scheduled to take place on the 7th of June 2018.   On the 6th of June 2018 his parents received a letter from the School Principal setting out that the Board of Management (BOM) had decided that it was in his best interest and in the interest of health and safety that he did not attend the school tour. This letter was handed to his mother after 12.00 noon by his SNA (Special Needs Assistant).

His parents submitted that this was to punish him for previous episodes of indiscipline which had been dealt with by the school.

At a meeting on the 30th of April 2018 with the Complainant’s health professionals, parents and School Principal, the school tour was raised for discussion. The Complainant’s father gave evidence on what occurred at this meeting. The Claimant disputed that the School Principal’s notes of the 30th of April were accurate about what was said regarding the school tour. His evidence was that he and his wife raised the issue of their son going on the tour.   The reason they did so was because on the previous year, the Claimant didn’t go on the school tour as he was suspended.   They accepted the as a fact, but they felt there was no reason why he shouldn’t go on the school tour this year.   Their case was that they brought it up at the meeting “just to be sure”, but as far as they knew “he was going on the tour”. The evidence of the Claimants father was that the School Principal advised him at that meeting that the decision as to whether the Claimant would or would not go on the tour was to “go to the Board of Management”. A booking deposit had been paid for the tour. The Complainant’s case is that nothing was heard again until the afternoon of the 6th of June 2018 when a letter from the School principal was received by his parents.

The Claimant’s case is that they gave suggestions as to alternative accommodation that could have been provided, but they were rejected by the Respondent.

The Claimant’s father disputed that he refused to go by car with the Claimant to the tour venue. His evidence was that he was prepared to go by car or on the bus. As he doesn’t drive, the Claimant’s mother would have driven. He also referred to an option of an Uncle driving the Claimant to the tour venue.

The Claimant submitted that the late notification resulted in further distress to him.  

A suggestion by the School Principal that the Claimant be taken to a local pet farm on his own with his SNA was rejected by his parents as they felt it would compound his sense of ostracisation from his fellow pupils and his feeling that he was being treated differently to other pupils by the teachers.

The Claimant set out that Section 9 of the Education Act 1998 went to the heart of the matter. He further relied upon Section 4 of the Equal Status Act 2000-2015 and the requirement to provide reasonable accommodation.

The school was identified as a service provider under Section 7 (2) (c) of the Equal Status Act. The Claimant relied on two cases for their submissions on reasonable accommodation: Deans –v- Dublin City Council Circuit Court unreported April 15, 2008 and Cahill –v- The Minister for Education and Science [2017] IESC29.

By way of background information, the Respondent gave a history of the Claimant’s violence and behavioural issues. The most recent incident took place on the 17th of April 2018 when the Claimant hit a fellow pupil and stamped on his glasses. He was suspended due to “premeditated threatening and violent behaviour towards a classmate and destruction of this classmate’s property. He caught his classmate in a headlock from behind, punched him into the stomach and then into the face knocking off his glasses. He then stamped on his glasses and broke them”.

He was suspended from school for three days which was extended to six days.

The Respondent explained that the letter inviting students on the school tour issued before the Claimant was suspended on the 17th of April 2018.

An emergency meeting was held by the Board of Management on the 25th of April 2018. A copy of the principal’s report for the meeting was produced to me. A copy of the minutes of the meeting were also produced. It was agreed at the Board of Management meeting that the Claimant should return to school the following morning but should be collected by his parents at 12pm to minimise the risk of another incident. Staff had identified after 12 noon as the riskiest part of his day, when his behaviour generally dis-improves as he wanted to go home.

The minutes of the meeting referred to

“……. concern was raised about whether the Claimant should attend the summer school tour. It was generally agreed that the presence of this pupil on the trip could pose a health and safety risk to other pupils. It was agreed that the BOM has a duty of care to all pupils and staff. It was generally agreed that the school tour is outside the scope of the specialised plan in place for the pupil as agreed by CAMHS, NEPS, parents and school.”  

The School Principal informed the BOM meeting that the next CAMHS case meeting for the Claimant was on the 30th of April 2018.

The Respondent produced the Principal’s report to the Board of Management meeting 30th of May 2018 which referred to the School Principal having discussed the school tour with the Claimant’s teacher and SNA.   The report noted

“both feel that he remains a flight risk and a behaviour risk especially with a change to his routine. They are not in favour of bringing the child on the school tour”.

The report goes on to state that when the parents were informed that the tour was in question at the CAHMS meeting of the 30th of April 2018, they were annoyed. They have proposed that Dad or an uncle could go with the child, but staff feel that there is too much risk to health and safety involved.

The School Principal gave evidence that at the meeting of the 30th April 2018 she informed the Claimant’s parents that the Board of Management was “not in favour of him attending the school tour”. She advised the Claimant’s parents that if they were unhappy with the decision, they (the parents) should send a formal letter of complaint to the Board of Management.

No letter of complaint was received by the Board of Management.

A copy of the minutes of the meeting of CAMHS of the 30th of April 2018 was provided to me. There was reference in the minutes that the parents felt that attendance on the school tour shouldn’t be up for discussion. The Claimant’s mother stated that her son was being treated “like a murderer” and left the meeting.

The Respondent’s case is that these notes clearly indicated that the Claimant’s parents were advised to put their feelings in relation to the school trip in writing to the Board of Management.

The Respondent’s case is that the parents were given proper notification of the Board of Management decision. The School Principal advised the parents on the 30th of April 2018 of the Respondent’s views.

A copy of the minutes of the Board of Management meeting 30th of May 2018 were also produced to me. The question of the Claimant going on the school tour was considered in this meeting.  

The minutes stated

“it was agreed that safety is of great concern to the BOM in the case and the pupil still presents a flight risk and exhibits unpredictable and aggressive behaviour, especially when his routine was changed. The trip will not return to school until 5pm. The Claimant is on a decreased school day (12.45pm finish) as agreed with the CAHMS team…. “.

The BOM agreed that this has been advised by NEPS and CAHMS and they should not breach this agreement. Of concern was “the long bus journey and the challenges that this may present for the pupil”.

The Claimant and his parents were on holidays and on return they were issued with the letter of the 6th of June 2018. This was produced to me. The letter stated

“Further to our previous conversation about the [Claimant’s] school tour. The Board of Management have decided that it is in the best interest of health and safety if [Claimant] does not attend the school tour this year. We have experienced that changes to [Claimant’s] school routine can be a trigger for unpredictable and aggressive behaviour and we feel that the school trip can be very challenging for him in this regard.”

The School Principal gave evidence that she spoke by telephone with the Claimant’s father on the afternoon of the 6th of June 2018. She offered a trip to a local pet farm or play centre as an alternative to facilitate a school trip for the Claimant.   The Claimant’s father rejected this suggestion. The Claimant’s mother then suggested that they (the Claimant’s parents) could drive the Claimant to the tour destination in the family car and join the school tour.   The Principal agreed with this suggestion. Her evidence was that she would “check it out with the Chairperson” of the Board of Management. The Claimant’s father then rejected this as an alternative solution. He indicated he wanted to go on the school bus with the Claimant so that the Claimant could fully participate in the school tour with the rest of the children. This was declined by the Respondent as they considered it too great a risk. It would involve the Claimant being on the bus for a lengthy trip and would not return until much later than was usual for his end of school routine. The Respondent’s case was that the Claimant did not deal well with changes to this routine.

The Respondent relied on the provisions of Section 4(4) and 7(4) of the Equal Status Act in defending the submissions that they discriminated against the Claimant.

It was not in dispute that the Claimant has a disability within the ambit of the Equal Status Act 2000-2018.

The relevant provisions of the Equal Status Act are sections 3, 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. (emphasis added)

(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…..

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 him to do so otherwise. This is an assessment made objectively. It is an expansive obligation as it requires all that is reasonable.

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.

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.” (emphasis added)

This provision imposes an extensive obligation on educational establishments not to discriminate against students in their participation in school. 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.

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.”

On the facts of the case, the Claimant had established a prima facie case in relation to discrimination on the disability ground and the failure to provide reasonable accommodation. It was then for the Respondent to rebut the presumption of discrimination.

The only parties to give evidence were parents and prior school principal on behalf of the Claimant, the current School Principal and Chairman of the Board of Management on behalf of the Respondent.   The Special Needs assistant or other parties involved at the meeting of the 30 April 2018 were not called to give evidence on behalf of either side. These matters are mentioned not in criticism but to indicate the evidence available to me.

The evidence presented to me of the events leading to the decision to refuse the Claimant to participate on the school tour and the consideration of alternative solutions were very much disputed between the parties.  

The history of the Claimants aggressive behavior during school time was not disputed. Evidence was presented of the Claimant assaulting staff and fellow students due to his disability. His disability led to him having an increased risk of harmful behavior, especially when his routine was altered.    

I was presented with several minutes of meetings kept by the School Principal.  

There was no written record by either side as to the contents of the telephone calls which took place between the parents and School Principal on the afternoon of the 6 June 2018. A face to face meeting may have helped resolve the conflict between the parties. There was a dispute on the evidence as to whether an offer was made to drive the Claimant to the tour location in his parents/uncle’s car and accompany him on the tour. Evidence was presented by the Respondent that this offer was made by the parents and subsequently withdrawn. The withdrawal of the offer is denied by the parents.

I accept the position of the Respondent regarding the requirement for any person travelling on a school bus to be Garda vetted. The parents travelling on the tour bus with the Claimant was not an option.

Having reviewed the evidence, both written and oral, I prefer the evidence of the Respondent and find that it has rebutted the prima facie case. I note that participating in the tour was not an agreed goal in the Claimant’s behavioral plan.   The contents of the minutes of the various meetings were in the main accepted by the Claimant. The Claimant (through his parents’ evidence) was going on memory and there were instances of when they did not agree on their evidence.

I accept that section 4(4) and 7(4) apply to the circumstances of this case and the decision not to allow the Claimant to participate on the school tour was reasonably necessary for his own health and safety and those around him.

I accept that the offer of the Claimants parents taking him in their own car to the tour location and accompanying him on the tour would have been alternative accommodation. This was not taken up by the parents.

I am conscious of the difficult circumstances each side found themselves in. However poor communication between the parties seems to have led to the situation.

The first signs of dispute on the matter was at the CAHMS meeting of the 30th April 2018.   Had either side followed up with the other on their position on the tour in person or in writing, this would have brought matters to a head earlier rather than on the eve of the school tour.

In view of the heated nature of the meeting 30th April 2018 with evidence being presented to me of the Claimant’s mother leaving the CAHMS meeting upset, I cannot accept the School Principal’s view that the parties left the meeting with ‘clear’ views of what was agreed or what they were to do. Neither can I accept the father’s evidence. He said that he brought up the issue of the school tour as it needed to be agreed on. His evidence was on the one hand that he couldn’t recall if his wife was upset and left the meeting, but his take away from the meeting was “as far as he knew, [the Claimant] was going on the tour”. I find it hard to reconcile that position and the evidence that they had mentioned the school tour to the Claimant’s SNA daily. It was also confirmed to me that that the balance of the tour fee had not been paid. As the Claimants parents gave evidence on how important it was for him to go on the tour, I believe the onus was on them to clarify what the situation was before they went on holidays themselves.

It would have been preferable also if the decision of the Board of Management of the 30th May 2018 was communicated to the parents the following day by email, rather than wait to hand deliver a letter to the parents on the afternoon of the 6th June 2018. I note that the timeframe between the Board of Management meeting and the tour was very tight due to the June bank holiday weekend. An earlier notification would have given the parties more time to digest what was involved and discuss alterative arrangements.  

The Claimant has failed to establish that the Respondent discriminated against him or failed to provide reasonable accommodation, contrary to the Equal Status Acts, 2000-2018.

Discrimination. Reasonable accommodation. Section 4(4) and Section 7(4) Equal Status Acts.