Complainant

Respondent

Anonymised Parties

Ms. R on behalf of her son L

A Creche/ Montessori

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019500-001

30/05/2018

The complainant, referred a complaint under the Equal Status Acts, 2000-2015 to the Workplace Relations Commission on the 30th of May 2018.     The complainant Ms. R, referred the case on behalf of her son L whom she submits was discriminated against by the respondent on grounds of his disability in respect of accessing a service provided by the respondent.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 15th of November 2018.

The complainant submits that:

Her son L has been diagnosed as having autism,

L attended at the respondent’s creche/Montessori from 27th of August 2017 to 22nd of December 2017 for 3 mornings per week,

L was not allowed to attend the Christmas concert in December 2017 unless he was accompanied by his mother Ms. R,

L was not allowed to attend a Leisure Park trip unless accompanied by his mother Ms. R,

On returning to Montessori after the Christmas holidays on Monday 8th of January, the respondent refused to take L for the 15 hours per week he was entitled to under the ECCE scheme.

The respondent submits that

L attended at the creche/pre-school from 27th of August 2017 to 22nd of December 2017 three mornings per week from Wednesday to Friday or Tuesday to Thursday,

L received SNA support for the three days from November 2017,

At no time did the respondent refuse L access to the crèche/Montessori,

L was diagnosed with autism in October/November 2017 and an AIMS observations report and risk audit in December 2017 concluded that L required full-time 1 to 1 support in the pre-school setting,

The complainant L did not usually attend creche on Mondays but on Monday 8th of January 2018 Ms. R showed up intending for L to attend school that day,

The respondent advised Ms. R on Monday 8th of January that they did not yet have a suitably qualified SNA to assist L for 5 days per week,

The respondent advised the complainant that following an AIMS assessment of L they were required to recruit a childcare worker with a FETAC level 5 qualification to enable L to attend for 5 days a week under the ECCE scheme,

The complainant L attended the creche/pre-school on the 8th, 9th and 10th of January 2018,

The complainant did not return to the school after 10th of January 2018.

The issue for decision by me now is, whether the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015.   In reaching my Decision I have considered all the submissions, oral and written, made to me during my investigation as well as the evidence at the Hearing.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

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

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

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

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

The complainant Ms. R advised the hearing that her son L is a person with a disability and that he has been diagnosed with autism.   Several documents were submitted to the hearing which included assessments carried out using the AIMS Access and Inclusion Model and a Child Behaviour Risk Audit.   The respondent does not dispute that L is a person with a disability.   I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the Acts.  

Discrimination on grounds of disability

In making my decision I must consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

In addition, sections 4 (1) and 4 (2) of the Equal Status Acts set out the obligation to provide a reasonable accommodation to a person with a disability:

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

The complainant advised the hearing that her son L had attended the respondent creche/pre-school from 27th of August 2017 to 22nd of December 2017 for 3 mornings per week.   The complainant stated that this usually happened on a Wednesday to Friday but had later been changed to Tuesday to Thursday to facilitate Ms. J the SNA.   The complainant Ms. R stated that her son L was assisted by an SNA Ms. J for these three mornings in creche/pre-school.   The respondent advised the hearing that the SNA had been assigned to another child E until November 2017 and that they had sought to have her transferred to L in November 2017 which they were successful in doing.   The respondent stated that they received funding for the SNA from Enable Ireland for two mornings per week and paid the SNA for the third day themselves as L attended creche/pre-school 3 days a week.

The complainant Ms. R advised the hearing that she attended the respondent Montessori after the Christmas holidays on Monday 8th of January, and that the respondent had refused to take L for the 15 hours under the ECCE scheme.

The complainant advised the hearing that she had arrived at the school on Monday morning the 8th of January and was told that the respondent had not been expecting L on that day.   The complainant submits that the respondent refused to allow L to attend school due to his disability.   She stated that he had been accepted to the school in August 2017 but stated that that was before he had a diagnosis of autism.   The complainant stated that she had advised the respondent in August that there was a possibility that L had autism due to his delayed speech and failure to make eye contact but that he had not yet had a diagnosis.     The diagnosis of autism was received in October 2017.

The respondent advised the hearing that following his diagnosis and AIMS observation report it became evident that L required the support of an SNA on a full-time basis for his preschool setting.

Witness for the respondent Ms. G advised the hearing that another child E had left the school in November 2017 and that he had been receiving assistance from an SNA funded by Enable Ireland for 6 hours a week over two mornings.   Ms. G stated that she had then contacted Enable Ireland to seek to transfer the SNA funding from that child to L. The respondent stated that Enable Ireland agreed to this and provided funding for the SNA for 2 days per week and that the respondent had paid the SNA themselves for the third day in order that L could attend the three days.  

The complainant Ms. R advised the hearing that her son L was not allowed to attend a Leisure Park trip with the creche/pre-school unless she accompanied him on the trip. The respondent in reply to this stated that they had recommended to Ms. R that it was preferable if she could attend the trip to the Leisure park as the SNA at the time had been assigned to another child E and was accompanying him on the trip.   Ms. R went on the trip with her son L.

Ms. R went on to state that L was not allowed to attend a trip to a Christmas concert in December 2017 unless she accompanied him. The respondent in response to this stated that they had advised/recommended to Ms. R that it would be better if she came on the trip and attended the concert with L as they were concerned that the bright lights and noise of the concert would upset him and cause him distress. The respondent stated that this was after the AIMS assessment of the complainant and Behaviour Risk Audit which concluded that L required 1 to 1 support on a full-time basis. The respondent stated that neither Ms. R or her son L attended the concert trip.  

Following the AIMS report it was recommended that L needed full time 1 to 1 support in preschool and that this had to be provided by an SNA with a FETAC level 5 qualification.   The respondent advised the hearing that they secured the funding for this post on 15th of December 2017 just before the Christmas Holidays but that they had not managed to recruit an SNA with the required qualification by the time creche preschool had reopened after Christmas on 8th of January 2018.   Witness for the respondent Ms. G stated that she had a discussion with the complainant Ms. R prior to the Christmas holidays and advised her that they would need to recruit a full time SNA with a FETAC level 5 qualification to provide L with a full time ECCE place after Christmas in accordance with Ms. R s wishes.   The respondent told the hearing that Ms. R had said that her mother knew an SNA who might be interested in applying for the post but that this did not materialise.   Witness for the respondent Ms. M stated that she had made a number of enquiries over the Christmas period in respect of SNA s whose CV s she had on file to try and recruit them for after Christmas, but she stated that these attempts were unsuccessful. Ms. M stated that she had also contacted Enable Ireland to ascertain if Ms. J the current SNA could be assigned to provide the support to L for the additional 9 hours they advised her that Ms. J did not meet the criteria for the AIMS funding as she did not have a FETAC level 5 childcare qualification.   The respondent told the hearing that the position before Christmas was that they had advised Ms. R that they would need to recruit a FETAC level 5 qualified SNA in order for L to increase his attendance at pre-school from 3 to 5 days per week after Christmas.

The respondent advised the hearing that they had not expected Ms. R to show up with L on the 8th of January given that they had not yet secured SNA support for him for the full five days as required under the terms of the funding. The respondent stated that Ms. R had shown up with L on Monday 8th of January and even though the correct resources were not in place. The respondent stated that L attended again on the 9th and 10th of January but did not return after that date.

Witness for the respondent Ms. G advised the hearing that it was open to Ms. R to continue with the previous arrangement of sending L to the preschool for 3 days per week until they managed to recruit an SNA for 5 days with the appropriate level 5 qualification.   Ms. G stated that for this arrangement to continue the existing SNA Ms. J would be funded for 2 days by Enable Ireland and the additional day would be paid by the respondent as had been done before Christmas.

The complainant at the hearing stated that she had been paying for the SNA in 2017 but it was clarified to her at the hearing that she was paying the creche/pre-school fees for 3 days per week and not the SNA fees as it is the preschool who must pay for the SNA with funding from the relevant body. The respondent clarified that the SNA Ms. J who had been supporting L prior to Christmas was funded by Enable Ireland for 2 days per week only and that additional days had to be paid for by the respondent themselves.

Witness for the respondent Ms. G advised the hearing that she had tried to explain to Ms. R that L was not being refused access to the 5 day ECCE scheme in the creche/pre-school but that they had not yet managed to recruit an SNA with a level 5 FETAC qualification to support L on a five-day week basis.  

The respondent stated that they had offered that the complainant could continue his 3-day week attendance until they had secured the 5-day week SNA but stated that this was not acceptable to Ms. R.   Witness for the respondent Ms. M stated that the funding for a 5-day week Fetac Level 5 SNA had only been secured on the 15th of December 2017 and given that the creche was closed over the Christmas period she had not yet managed to recruit the SNA before the school reopened on 8th of January. Ms. M stated that Ms. R had been upset to discover that the school could not facilitate L’s attendance on a 5-day week basis from the 8th of January and had pulled him out of the school on the 10th of January.

Mother of the complainant Ms. R advised the hearing that she removed her son L from the school following a conversation with the respondent on 10th of January in which Ms. R had asked Ms. G why L needed a full time SNA.   Ms. G had replied that they were afraid L would climb onto unstable objects and fall and hurt himself or others or that he could run out onto the main road.   Ms. R told the hearing that once she heard this she pulled L out of the school and did not return.     Ms. R at the hearing initially disputed that her son L needed a full time SNA but later stated that she didn’t know if he needed an SNA full-time and stated that she was not answering that question.

Ms. G stated that Ms. R had not advised them at that time that L would not be returning, and it was only on 7th of February 2018 that they became aware that he was attending a different school.   Ms. G stated that L was not discriminated against and that he had attended the school from August 2017 and continued to attend after his diagnosis of autism in October 2017.

Ms. G stated that this arrangement could have continued but that given that Ms. R was seeking that L attend on a five-day week basis this could only be facilitated once the respondent recruited a suitably qualified childcare worker who could provide the complainant with 1 to 1 assistance on a 5 day a week basis.     Ms. G stated that AIMS funding to provide an SNA for the additional 3 days a week was being provided on the basis that the post was to be filled by an SNA with a FETAC level 5 qualification.     Ms. G stated that Ms. J who had been working with the complainant on a 3-day week basis prior to Christmas 2017 (1 day of which was being paid by the respondent themselves) did not have a FETAC level 5 qualification and so could not fill the requirements for which the additional SNA funding was being provided.

Witness for the respondent Ms. G went on to stated that they were very willing to provide the complainant L with his 15 hours a week under the ECCE scheme once they had a qualified SNA in place to support him as recommended by the AIMS report carried out prior to Christmas 2017.   Ms. G stated that this report had concluded that L required full time support from an SNA during his attendance at creche/pre-school. The respondent stated that they had made informal enquiries seeking a suitably qualified SNA over the Christmas period and formally advertised for a suitably qualified SNA on 9th of January 2018. The respondent told the hearing that complainant was offered the option of continuing to send L on a 3 day-week basis and that she would have been able to avail of the full five days with a suitably qualified SNA once the respondent had succeeded in recruiting such a candidate.   The respondent went on to state that another factor in the difficulty in securing a suitably qualified SNA was that it was trying to recruit half way through the school year and that most recruitments of this type take place prior to the beginning of the school year in September.

The respondent stated that it was however willing to facilitate Ms. R s wishes to have L commence a 5-day week on the ECCE scheme halfway through the school year but that it had to secure the SNA to facilitate his attendance on a five-day week basis.

The complaint form submitted by the complainant states that the first date of discrimination was the 8th of January 2018 and the most recent date of discrimination is given as the 10th of January 2018.   It is clear from the evidence adduced that the complainant was facilitated in attending the pre-school on the 8th, 9th and 10th of January 2018.   It is also clear that the complainant on the 10th of January removed L from the school and did not return despite assurances that L could continue to attend on a three-day week basis until SNA support was secured to support his attendance on a 5 day per week basis.

Having given a great deal of consideration to the matters raised here I am satisfied based on the totality of the evidence adduced that the complainant L was not discriminated against by the respondent on grounds of his disability in relation to these matters and that the respondent’s treatment of the complainant does not amount to a refusal or failure 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.

I find that the complainant L was not discriminated against by the respondent on grounds of his disability in relation to these matters and that the respondent’s treatment of the complainant L does not amount to a refusal or failure 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.