DEC-S2020-002

EQUAL STATUS ACTS

DECISION NO. DEC-S2020-002

PARTIES

A Former Secondary School Student

(Represented by her Parents)

-AND-

Secondary School 2

(Represented by Barra Faughnan BL,

instructed by Millett & Matthews Solicitors)

&

The Department of Education & Skills

(Represented by Aoife Carroll BL,

instructed by the Chief State Solicitor)

File References:  ES/2013/0162 & ES/2013/0163

Date of Issue:  10th August 2020

1. BACKGROUND

1.1 This matter concerns complaints made by Parents (Mr and Mrs B) on behalf of their daughter and Complainant (also referred to as ‘A’), a former secondary school student.  It is alleged that the Respondents failed to provide A with reasonable accommodation and/or discriminated against her and her family by association on the grounds of disability and family status and further victimised them contrary to Sections 3, 4, 5 & 7 of the Equal Status Acts 2000-2012 (also referred to as ‘the Acts’). 

1.2 These complaints were received by the Director of the Equality Tribunal (now the Workplace Relations Commission) on 13th November 2013. The ES3 Complaint Form referred to an attached letter dated 29th May 2013 as setting out the basis of these complaints.  The First-named Respondent is a secondary school (hereinafter referred to as ‘School 2’ or ‘the School’) and the Department of Education and Skills is named as the Second-named Respondent.  An ES1 Notification Form pursuant to Section 21(2) of the Equal Status Acts 2000-2012 containing the names and addresses of both Respondents was sent to the First-named Respondent on 3rd October 2013.  A Direction by a different Equality Officer dispensing with the notification requirement in respect of the Second-named Respondent was granted to the Complainant under DIR-S2014-001 as set out in Part 6.  The Complainant and her Parents were advised and/or represented by Solicitors up until they came off record on 27th June 2016.  The First-named Respondent was represented by Mr Barra Faughnan BL instructed by Millett and Matthews Solicitors whilst the Second-named Respondent was represented by Ms Aoife Carroll BL instructed by the Chief State Solicitor.  It is common case that the complaints against each of the Respondents are inextricably linked, both legally and factually.  Whilst they were initially administratively dealt with separately, at the behest of and consent of the Parties, they have been investigated, heard and determined together.

1.3 On 8th October 2015, in accordance with his powers under the Workplace Relations Act 2015, Section 75 of the Employment Equality Acts and Part III of the Equal Status Acts 2002-2018, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated these complaints to me, Aideen Collard, an Equality Officer (also an Adjudication Officer), for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to the first hearing of this matter on 14th October 2015.  The Complainant attended at this hearing and was excused from attending all further hearings in circumstances where there was no objection on behalf of the Respondents to her Parents pursuing these complaints and/or giving evidence on her behalf.

1.4 A has Down Syndrome and these complaints primarily arise from the refusal of a grant of a reader for her Junior Certificate examinations in 2013 under the RACE (Reasonable Accommodation at the Certificate Examinations) Scheme and the roles played by each of the Respondents in relation to this refusal. Although these complaints concern events occurring over a relatively short period of some ten months, the interactions between the Parties concerned have generated voluminous documentation.  Significant case-management issues arose in this case as extensive legal and factual matters were raised between the Parties.  The scope of these complaints was substantially expanded whilst the Complainant was represented.  Thereafter, her Parents elected to revert to the original complaints, but before and during the substantive hearing sought to expand them in new respects and against unnamed third parties.  This Tribunal also had to contend with correspondence from the Parties and once the Complainant’s Solicitors came off record, endeavored to ensure that her Parents had all the materials furnished on her behalf.  Logistical and resource issues delayed the final substantive hearing and issue of this decision.

1.5 A number of further case management hearings were held during 2015, 2016 and 2017. These complaints were adjourned at the behest of the Parties on a number of occasions to facilitate the exchange of documentation and submissions, to explore alternative routes for resolution and to await the Supreme Court Judgment in Cahill -v- Minister for Education and Science which was felt by all to be of significance in terms of adjudicating upon these complaints.  Following delivery of this Judgment on 24th May 2017, the Complainant’s Parents sought to have these complaints dealt with on the basis of written submissions (on the papers only without an oral hearing) as provided for by Section 25(2A) of the Acts.  To proceed on this basis, the Respondents’ consent along with the Equality Officer’s exercise of discretion in favour of this procedure are required.  Pursuant to Section 25(2A)(b), representations were sought from the Respondents and received within the requisite 28-day period under Section 25(2A)(c).  As both Respondents raised objections to this course given the factual conflicts between the Parties which could not otherwise be resolved fairly along with complex matters of law to be aired, this Equality Officer had no discretion but to hold an oral hearing pursuant to Section 25(2A)(d). 

1.6 Accordingly, a further case management meeting was held on 23rd October 2017 wherein I gave directions to the Complainant’s Parents (who were representing the Complainant at that stage) to confirm the complaints being pursued, directed the exchange of documentation between the Parties and sought to identify the witnesses to be called. A further exchange of submissions and correspondence ensued.  Owing to the large number of witnesses, it took some time to identify hearing dates that suited all concerned.  The first hearing scheduled for January 2018 had to be adjourned at short notice when one of the Parties became ill-disposed.  The substantive hearing of these complaints eventually took place on 23rd and 24th April 2018 and 21st, 22nd, 23rd & 24th January 2019.  The hearing was transcribed by an official stenographer on behalf of the Respondent/s and the Complainant’s Parents were furnished with the transcripts (which ran to 600+ pages) without being required to make the usual financial contribution.  

1.7 This Equality Officer ruled that to enable a fair hearing, these complaints would be confined to those properly referred but evidence regarding events falling outside of the complaints would be allowed by way of background information for context in accordance with the guiding case law as set out in Part 6. Given the history and nature of these complaints, it has been necessary to set out the evidence in detail.

1.8 All evidence presented along with the extensive submissions and documentation submitted before, during and after the hearing have been taken into consideration along with relevant statutory provisions and case law. Save from where specific issue is taken, it is common case that all of the documentation submitted forms the record of events giving rise to these complaints even if not specifically cited or included in brackets.  This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015. 

Preliminary Procedural and Jurisdictional Issues raised and/or addressed at/after the Hearing

1.9 It was common case that many of the issues raised within these complaints are moot. Firstly, and as at the date of the first hearing on 14th October 2015, A had left secondary education to pursue alternative / third level courses.  Secondly, it materialised that A had in fact undergone her Junior Certificate at another secondary school (hereinafter referred to as ‘School 3’) in June 2014 without a reader, when it had been contended otherwise in submissions which were subsequently corrected.  Thirdly, the eligibility criteria for the RACE Scheme had changed in 2016-17 such that someone in A’s position could thereafter potentially be entitled to a reader for the Junior Certificate examinations from 2017 onwards.  Notwithstanding mootness, A’s Parents indicated that they still wished to proceed with these complaints and receive a decision along with applicable compensation and/or directions as to actions that should be taken by the Respondents.  Regardless of whether the issues raised are now moot, it is still incumbent upon the Equality Tribunal to determine whether a failure to provide reasonable accommodation, discrimination and/or victimisation arose at the material time and if so, to order appropriate redress.

1.10 At the outset of the first day of the substantive hearing on 23rd April 2018, objections were made on behalf of the Respondents to the presence of certain witnesses on behalf of the Complainant remaining in the hearing room and the Complainant’s Parents likewise objected to the presence of certain witnesses present on behalf of the Respondents. The Complainant’s Parents did not have legal representation but a Senator (in a personal capacity), an Adult Advocacy Officer and a former CEO of a Disability-related Charity were in attendance to support them.  Having heard the Parties in relation to their various objections and enquired as to the basis for the attendance of each witness, I directed that in the interest of fairness, all witnesses should be permitted to remain in the hearing room on the basis that various undertakings were given to maintain the privacy requirements under Section 25 of the Equal Status Acts.

1.11 A number of preliminary issues as to the Tribunal’s exercise of jurisdiction were also raised on behalf of the Respondents. The ES1 Notification and ES3 Complaint Forms both named School 2 and the Department of Education and Skills as Respondents.  On behalf of the Second-named Respondent, it was submitted that whilst the Department of Education and Skills remains a parent body, the State Examinations Commission (SEC) was set up as an independent statutory body established under statute to run State examinations.  Its functions include responsibility for setting the criteria and processing applications for reasonable accommodation from students undertaking State examinations under the RACE Scheme.  Hence it is the most appropriate respondent in relation to any complaint about the RACE Scheme.  There had been no application to amend the name of the Second-named Respondent to date, notwithstanding that this had been flagged as an issue throughout and the Complainant had the benefit of legal advice.  In particular, a letter dated 8th January 2014 from the Department of Education and Skills to the Secretariat of the Equality Tribunal stated: “I have read the background material and discussed it with officials in the State Examinations Commission (SEC).  The Scheme of Reasonable Accommodations at the Certificate Examinations is the responsibility of the SEC.  Therefore, I would ask you to consider that the complaint should have been addressed to the school in question and to the SEC.  The complaint should not have specified the Department.  The SEC is agreeable to step in to replace the Department.”  In response and in other correspondence, the Complainant’s Parents confirmed that they wished the Department of Education and Skills to remain named as the service provider for any named organisation which falls under the remit of education  The Department of Education and Skills and the SEC have been referred to together and interchangeably in written submissions on behalf of the Complainant.  The Secretariat confirmed to the Parties that this was an issue for determination by the Equality Officer assigned.  At an early case management hearing, it had been indicated that there was no issue with the Department of Education and Skills meeting these complaints on behalf of the SEC.  At the substantive hearing, it was confirmed that this remained the position and in fact both the Department of Education and Skills and the SEC were represented.  However, there remained a concern as to the jurisdiction being exercised as firstly, it is incumbent upon a complainant to bring a complaint against the correct party and secondly, any jurisdiction being exercised to award redress should be against the correct respondent.  Furthermore, if the Department of Education and Skills has been incorrectly named and/or the SEC is an appropriate respondent, then this also raises an issue regarding compliance with the notification requirements under Section 21(2) of the Acts in circumstances where the SEC was not notified of these complaints or subject to DIR-S2014-001.  As the nature and scope of these complaints had been recalibrated within the various submissions on behalf of the Complainant, I ruled that it was necessary to hear and consider the substantive evidence before this issue could be properly determined.

1.12 The Second-named Respondent also sought to revisit the Direction DIR-S2014-001 made by a different Equality Officer dispensing with the notification requirement under Section 21(2) of the Acts and the basis upon which this Equality Officer is bound by same. It was also contended on behalf of the First-named Respondent that the notification and time limit requirements under Section 21 of the Acts had not been adhered to by the Complainant and in particular that the ES1 Notification was out of time.  In reply, the Complainant’s Parents contended that the discrimination alleged had been ongoing and referred to the Tribunal’s latitude to amend.  I reserved my position pending hearing the substantive evidence and as these issues go to jurisdiction, have addressed them on a preliminary basis within Part 6.

1.13 Having heard the Parties regarding the issue of anonymisation, given that the Complainant is under a disability and was a minor at the material time of the facts giving rise to these complaints, I have exercised my discretion to anonymise this decision in so far as is practicable. Whilst the Complainant’s Parents had no objection to being named, they confirmed that they did not want A named contrary to a previously held position.  It was also the view of Counsel for both Respondents that it would not be appropriate for A to be identified and also that anonymisation of the Parties should be consistent.  Counsel for the Second-named Respondent acknowledged the reality that it may be easier to identify official bodies but expressed a preference that individuals be anonymised and their specific titles not used.  To this end, I have deemed it necessary to anonymise any information likely to identify A including the names of her witnesses, schools she attended and staff / witnesses for School 2.  Whilst the officials and witnesses for the official bodies involved have also been anonymised, it has been necessary to identify the bodies vis-à-vis their statutory roles and obligations in relation to these complaints.

List of Witnesses (alphabetically in order of evidence given)

Mr B & Mrs B – A’s Parents (submitted these complaints on her behalf and gave evidence on her behalf)

Ms C – Senior Speech and Language Therapist with a Disability-related Charity who assessed A

Ms D – Special Needs Coordinator with a Disability-related Charity and Advocate for A and her Parents

Ms E – A Family Friend who attended with Mrs B at the initial meeting with School 2

Mr F – Former Principal for School 2 (Principal during the material time of A’s attendance)

Ms G – Special Educational Needs (SEN) Coordinator for School 2 (including during A’s attendance)

Ms H – Senior Manager at the State Examinations Commission (SEC)

Ms I           – Senior Manager with the National Educational Psychological Service (NEPS)

Dr J – Senior Psychologist with the National Educational Psychological Service (NEPS)

List of Abbreviations and/or Acronyms

IEP – Individual Education Plan

NEPS – National Educational Psychological Service

RACE – Reasonable Accommodation at the Certificate Examinations

SENO – Special Educational Needs Organiser

SNA – Special Needs Assistant

SLD – Specific Learning Difficulty (note that ‘difficulty’ and ‘disability’ are often used interchangeably)

The SEC – The State Examinations Commission

2. SUMMARY OF THE COMPLAINANT'S EVIDENCE

Direct Evidence of the Complainant’s Parents, Mr and Mrs B

2.1 The Complainant’s Parents, Mr and Mrs B gave evidence in support of these complaints. They confirmed that A was born in 1997 and is one of four children.  She has Down Syndrome, a genetic disorder arising from the presence of an extra chromosome giving rise to a range of cognitive and physical characteristics and challenges.  By way of background, they outlined her educational history and their aspirations for their daughter.  As reflected in her early educational psychological assessments, they wanted her to participate in mainstream education with the assistance of all available supports.  A undertook her primary education at a local mainstream national school with full-time SNA (Special Needs Assistant) support and overall had a positive educational experience there.  She began her secondary education at a mainstream secondary school (‘hereinafter also referred to as ‘School 1’).  At her Parents’ behest, she had been undertaking the Junior Certificate curriculum there.  However, she had struggled with the workload and became unhappy.  When School 1 refused to allow her to drop some of the subjects and her SNA hours were reduced around the same time, they looked at alternatives.  At the commencement of A’s third (exam) year in September 2012, they contacted the First-named Respondent (School 2) with a view to transferring schools.  They had chosen School 2 primarily because it had a Special Educational Needs (SEN) Unit to support mainstream classes and operated the Junior Certificate School Programme (JCSP) and Leaving Certificate Applied (LCA) which provide a curriculum and continuous assessment framework suitable to individual needs.  It also had existing students with Down Syndrome.  On 2nd October 2012, accompanied by a friend, Ms E, Mrs B met with Ms G, the Special Educational Needs (SEN) Coordinator for School 2 who showed them around.  Ms G had indicated to them that there would be no problem with A’s immediate transfer to School 2 and her Junior Certificate studies could be accommodated including the option of staggering her examinations over a number of years.  She also indicated that A’s existing CSPE (Civic, Social and Political Education) and Art projects could transfer over.  They had discussed A undertaking Art, English and Home Economics for the Junior Certificate.  Ms G had said that she would run A’s transfer to School 2 by the Principal, Mr F, as a matter of courtesy.  Mrs B furnished Ms G with the most recent NEPS Psychological Assessment Report dated 4th August 2010 for A.  [An assessment involves a series of tests and/or activities to help identify a student’s specific learning style, strengths and areas of educational need and makes recommendations which may assist with devising an Individual Educational Plan (IEP)].  The Report had concluded: “Overall results from the Vineyard II results and A’s cognitive score suggest a diagnosis in the moderate intellectual disability range.” and recommended as much practical-based learning for A as possible.

2.2 Mr F invited A’s Parents to a meeting at School 2 on 16th October 2012 where despite the assurances of Ms G, he indicated that he was not recommending A’s transfer to the School during the current academic year as she had missed the induction week and it would be too disruptive. A’s Parents alleged that he had informed them that as he was on the Board of Management, the Board always upheld his recommendations, and that he handed them an envelope containing the School’s Policies indicating that they were for the purposes of appealing and shook their hands.  As they were leaving, Mr B noticed that he was “…cleaning his hands on a white towel or white rag or something”.  They subsequently received a phone call from Mr F followed by a letter dated 18th October 2012 from the Board confirming that A’s application to transfer to School 2 had not been accepted.  Whilst confirming that an application for A’s enrolment the following 2013/2014 academic year would be welcomed, having heard Mr F’s views as shared by the Principal for School 1, the transfer application was declined “…as the Board felt a transfer mid-year and after our induction process had been completed would not be in A’s best interests either educationally or socially.  The Board also felt that such a move might not be in the interests of the other students who had gone through the induction process and are well settled at this stage in their class.” 

2.3 On 25th October 2012, A’s Parents attended an open enrolment night at School 2 for 2013/2014 and applied to have A enrolled. They emailed Mr F on 7th November 2012 seeking confirmation as to whether this had been accepted.  Mr F replied outlining the various modes of entry with reference to the Admissions Policy confirming: “The Transfer Form submitted by you in October was for admittance to the Special Class whereas the Application Form submitted by you following Open Night was for enrolment in 1st Year Main Stream in September 2013…  Provided that A’s Psychologist recommends a Special Class as appropriate for A, I would be delighted to offer A a place next September.”

2.4 By letter dated 18th November 2012, A’s Parents wrote to Mr F acknowledging the prospective offer of a place for A at School 2 the following 2013/2014 academic year but appealing to the Board to reconsider their decision to refuse her transfer during the current 2012/2013 academic year. It also confirmed that they were appealing the decision to refuse the transfer (under Section 29 of the Education Act 1998).  They set out the reasons as to why they felt that it was in A’s best educational interests to transfer to School 2 during the current academic year as follows: “In the recent months we have observed our daughters struggle educationally and we still feel that it would be most beneficial for A to work alongside children who face similar struggles academically.  We are aware that your school offers the Junior Certificate Home Programme which would suit A’s academic needs perfectly.  Socially, A has become much more isolated in her current environment as there is no meaningful engagement with her peers.  Whilst we do fully acknowledge that A has missed the induction process we, as parents feel confident that A would settle in very quickly as she has always had consideration for other students.  We are aware that there are no resource issues and the SENO has reassured us that the resources will be there for A.  As you can understand we are still interested that A transfers to the special class in (School 2) as soon as possible and we would again be grateful if you could facilitate this in A’s best interests.”

2.5 On 21st October 2012, A’s Parents received a phone call from Mr F confirming that School 2 would now accept A’s transfer in the current academic year and inviting them to a meeting along with Ms G and the Special Educational Needs Organiser (SENO) on 29th November 2012. As this was just a verbal confirmation and as the time limit for an appeal was due to expire, they submitted a Section 29 appeal in any event.  At the meeting, the SENO confirmed that A’s resources would transfer over from School 1.  Mr F said that what had occurred to date was water under the bridge.  He also indicated that A could not undertake Art as an exam subject and despite their misgivings, A’s Parents reluctantly accepted this by way of compromise.  At that stage, they understood that between the mainstream classes and the SEN Unit, A would be undertaking the Junior Certificate examinations on a staggered basis.  They wanted the transfer to take place as soon as possible but were informed that whilst A could attend on the last day of term, she would start the following term in January 2013.  They contended that Mr F had told them that he did not want to be the first Principal subject to a Section 29 appeal and was anxious that it be withdrawn.  They proceeded to complete the necessary paperwork with Ms G who reassured them that they were looking forward to having A and the School was very informal.  They withdrew the Section 29 appeal and by letter dated 1st December 2012 to Mr F, expressed their “heartfelt thanks” for accepting A into the School and forbeing “so welcoming and understanding” and “we look forward with great optimism to January and thank you once again for your courtesy and consideration.”  On the same date they sent a similar note to Ms G thanking her for her input, courtesy and consideration.  They sent a further email on 6th December 2012 enquiring as to whether A could start earlier than the agreed date.

2.6 In any event, A started School 2 on the first day of the new term, being 7th January 2013 and from the outset it became clear that A’s Parents educational expectations for A differed from those of School 2. When Mrs B collected A from her first day at the School, she was upset because she had been placed in the first-year class instead of the third-year class.  When Mrs B queried this with Ms G as being contrary to what had been agreed, she said that she did not have time to discuss it then.  When Mrs B approached her about the issue again the following day of 8th January 2013, Ms G had explained that although there were IL, 2L and 3L classes, they were not very different and the students interacted between them.  Mrs B had responded: “Well if my daughter is coming home telling me she is in first-year and she is supposed to be doing her Junior Cert, well then, there is something seriously wrong about this.”  Ms G had suggested that she was confused and arranged for her to speak to Mr F in his office who repeated the position and Ms G agreed to explain this to A and the other students.  As Mr F had said that his door was always open, Mrs B approached him again on 9th January 2013 about the arrangement.  She recalled that a tetchy exchange had ensued.  She had questioned why he had agreed to allow A to transfer over and he had replied that it was because of her resilience and persistence.  She had retorted: “…so nothing to do with our daughter’s ability then.”  In response he had stated: “Mrs Bin your daughter’s time here…, she and you will learn the lesson that it is not about the individual here, it is about the collective”.  She shook his hand and thanked him for his honesty.  He then swiveled on his chair and wiped his hands.  [It is common-case that at that stage and during the course of those initial informal meetings, Mrs B had also expressed a desire for A to undertake the Junior Certificate examinations within that academic year.]

2.7 On 13th January 2013, Mrs B wrote to Ms G enclosing A’s last term Report and IEP from School 1 for the purposes of planning her School 2 timetable and raised a number of concerns including seeking confirmation that A was enrolled in third-year as discussed previously. It outlined the subjects she “is” doing and subject choices for her JCSP and questioned why her Art exam could not be facilitated.  It requested A’s provisional timetable, SEN Unit Policies, the date when her mock exams start and questioned why A was doing history homework when she is not doing that as a subject.  Regarding an application for reasonable accommodation for A’s forthcoming Junior Certificate examinations, it stated: “…let us know the status in relation to the Department of Education state accommodations.  If a new form needs to be filled out, please furnish us with whatever documentation is required.”  It further stated: “While no decisions have been made at this early stage in relation to State Examinations, as agreed, it’s necessary that A follows the modified curriculum, while integrating into third year successfully.” 

2.8 Mrs B said they received the first of six letters by registered post from Mr F in response to their letter to Ms G. [The letter dated 16th January 2013 expressed surprise at Mrs B’s letter as Mr F had believed that these issues had been addressed at their unscheduled meetings on 8th and 9th January 2013.  He also expressed disappointment that she had declined his request for a meeting with the SENO to discuss A’s educational needs stating: “I strongly suggest that you rethink your approach and engage in a collaborative approach from here on in.  I am of the opinion that excluding A’s school from a meeting to discuss A’s educational needs is counter productive and insulting.”  He then replied to the various points raised stating: “A has attended (School 2) since 7th January and as such has completed 5 school days.  As I explained to you at our meeting on 8th January it is our wish to get to know A, gauge her strengths, monitor her progress, get the opinions of her teachers and assess her needs before making a decision, in consultation with you, on the most appropriate placement for her.  This will take time and, if you remember, I appealed to you to give us this time.  This is the approach we agreed at our meeting on Thursday November 29th prior to A taking up a place.”  He also outlined the interchangeability of the classes within the SEN Unit.  Regarding Mrs B’s reference to the subjects A “is” doing, he stated: “I want to make it very clear to you that all students follow the curriculum as laid down by the school.  Students take the subjects that are timetabled.  A will not be an exception as we have neither the resources nor the facilities to operate individual timetables.  The movement between the groups in the SEN Unit however does facilitate individual needs.”  Regarding A not being able to take Art as an exam subject, he stated: “… it has been explained to you on a number of occasions that the students in the SEN Unit are not being prepared for the Junior Certificate in Art and the mainstream Junior Certificate Art class is at capacity.  This was clearly pointed out to you prior to A joining (School 2).  You accepted a place for A on this basis.”  Regarding accommodations for the examinations, he stated: “I have contacted the State Examinations Commission and they have informed me that no RACE Application has been received for A.  I have referred this to Dr J who will assess A’s eligibility.  I am enclosing forms which you may wish to complete.”  He confirmed the dates for A’s mock exams under exam conditions starting on 29th January 2013, enclosed a provisional timetable and said that he would be in contact regarding a proposed team meeting including Dr J (a Senior Psychologist from NEPS assigned to School 2).  In conclusion, he referred to the notes as to what had been agreed at their meeting of 29th November 2012 stating: “I felt that we had reached a good understanding at this meeting and it is my intention to adhere to the agreements reached at the meeting.  My staff and I will continue to work in A’s best interests.  She is a lovely, pleasant child and seems to have settled in very well which was our stated objective.”]  It was common case that the RACE (Application for Reasonable Accommodation at the Junior Certificate 2013) application forms enclosed within the letter comprised of one on grounds of physical difficulty/ies and the other on grounds of specific learning difficulty/ies (SLD).

2.9 A’s Parents signed the forms but did not tick the boxes corresponding to the accommodations being sought as there had been no instructions to do so. They posted the forms back to School 2 under cover of a letter dated 28th January 2013 on the understanding they would be completed by School 2 and forwarded to the necessary body.  They were also conciliatory, thanking Mr F for the clarifications and stating: “It was never our intention to cause any insult to you or any of your staff by the letter or meeting that we undertook.  Our only concern is to try to get what is best for A and sometimes this is confused by emotion.  Sometimes all of us can act in order to try and resolve an issue, and sometimes this creates new issues but our objectives are genuine and are with the best of intentions for our child’s education.  Working within the current Educational system is sometimes for parents an uphill battle to get what is right for your child.  We now understand that it will take a bit more time for (School 2) to complete your assessments of A in her new environment.  Thank you for your explanations of the educational process within the School and the class exam process, and we are in agreement that A will benefit from doing the Pre Junior Certificate exams and this will give us all a barometer of A’s ability going forward.”  A’s Parents also confirmed that they would follow the provisional time table provided and would be delighted to meet as proposed to discuss plans for A’s education and “In conclusion, Mr F, we thank you for your interest and work so far with A and as far as we are concerned we still have a good working relationship and a good understanding and we will work together in A’s educational journey.”

2.10     A underwent her mock exams in late January / early February 2013 under examination conditions without any supports and received a mark of 4% in her English paper.  After a brief improvement following her move to the third-year class, A became unhappy as relations with the School deteriorated.  On 19th February 2013, the proposed team meeting went ahead with Mr F, Ms G, the SENO and Dr J, in attendance.  A’s Parents were surprised by Dr J’s presence as they had not been expressly notified of his attendance beforehand.  They acknowledged that School 2 had agreed to allow A to pursue her Junior Certificate examinations within that academic (2012/2013) year.  When they had enquired as to whether A’s psychological assessment should be updated given that she would be undergoing her Junior Certificate, Dr J expressed the view that this was not required.  They were also disappointed to learn that the School did not have the resources to enable A to complete her CSPE project.  Contrary to the School’s view that the focus should be on A’s practical living skills, they indicated that the focus should be on her preparation for the Junior Certificate examinations.  They felt that this was important for her socially and as a rite of passage.  According to Mr B, she had “…her own little dreams of going to college…” just like another girl with Down Syndrome she knew of had, and there was “…a lifetime to teach her living skills”.  They understood that at this stage, the RACE application forms they had returned in January 2013 had been processed.  They wrote to School 2 on 28th February 2013 raising a list of concerns including the conduct of the meeting and the fact that they had been unaware of Dr J’s attendance beforehand and had not been furnished with A’s draft IEP and mock exam results prior to the meeting.  They set out the subjects A would be doing for her Junior Certificate in 2013 and referred to the fact that her Art project would need to be submitted in the current school year to meet the timeframe for undertaking the exam in 2014 “as agreed”.  They questioned the level of supports and resources that had been put in place for A at School 2 given her high level of need.  They requested a meeting with Ms G to have A’s IEP “redeveloped” and also a meeting with the teachers in her five Junior Certificate subjects and JCSP programme before the St. Patrick’s Day break “due to time constraints”.  They also sought other information and documentation.  Regarding A’s RACE application, they stated: “… can you let us know of the status of same, and furnish us with a copy of the completed Application Form?” and “…can you please return the Psychologist Form as a matter of urgency?”  Regarding A settling into School 2, they stated that the first few weeks at School 2 had been very for difficult her and “There are some on-going issues and we are monitoring this and we may need to relook at an alternative option in the future.”  The ‘Psychologist Form’ referred to their earlier request to Ms G to complete a form to enable A to undergo a psychological assessment which they had arranged but had not been forthcoming. 

2.11     In a detailed registered letter from Mr F dated 8th March 2013, A’s Parents were invited to attend a parent-teacher meeting on 13th March 2013.  [Mr F stated that it was for fifth-years but they were being accommodated as the third-year parent-teacher meeting had taken place before A’s transfer.  He also responded to the various points they had raised in their last letter.  He asserted that they had been informed of Dr J’s attendance at their meeting beforehand.  He set out the resources and supports available to A at School 2.  Regarding her Art project, he stated that SEC Regulations do not allow for a project to be submitted in a different year to the written examination and “I also wish to point out that no discussion whatsoever has taken place in relation to A sitting Junior Certificate Art in 2014 much less any agreement reached.”  In relation to the IEP, it stated that it was only ever a draft which Ms G had spent many hours compiling for discussion at the meeting.  Regarding the RACE application for A, Mr F stated: “An Application for RACE will be forwarded to the State Exams Commission for their consideration as soon as I receive same from you.”  He enclosed the other documentation sought but queried: “Neither Ms G nor I understand what you mean by “Psychologist Form”.  He expressed surprise that they had not raised their ongoing concerns about A at the meeting of 19th February 2013 stating: “I am sorry to hear that there are still ongoing issues with A’s settling into (School 2) as we feel she made great progress in her social and personal development.  While there are concerns around her ability to cope with the academic area she is pursuing, I would appreciate if you would bring any outstanding issues to my immediate attention as our sole concern is A’s well-being, happiness and progress.”] On the same date, Ms G emailed Mrs B confirming that she was sending RACE application forms home with A, which when completed would be forwarded to the SEC.  A’s Parents maintained that these were a new set of forms to those which they had returned to School 2 in January 2013.  As they were not completed, Mrs B emailed Ms G on 11th March 2013 confirming: “We have returned the Application Forms to you today.  It would be remiss of us as parents and unfair to A to sign off on non completed forms so we will follow the normal protocol and expect the completed forms to be resent home today with A or we can sign off on them on Wednesday when we are at the school meeting…”

2.12 A’s Parents attended the parent-teacher meeting on 13th March 2013 and brought the forms along to obtain assistance with their completion. (Note: It is unclear as to whether A’s Parents brought the forms along to the meeting or having returned them to the School, Ms G furnished them at the meeting and/or whether they were a new set of forms to those returned in January but nothing material turns on this.) Whilst they found most of the teachers to be helpful, they also detected an atmosphere.  The Art teacher had confirmed that it was not possible for A to undertake the Art exam as a non-exam subject.  In response to the English teacher’s comment that A was extremely good at drama and music, Mrs B had said: “That doesn’t really seem appropriate to us that A is doing drama and music while she is a Junior Cert year studying for her exams.”  When they came to Ms G, they asked for her assistance with completing the RACE application forms.  She informed them that they had to tick the boxes corresponding to the accommodations required by A, sign the forms and return them to the School.  They felt that she was not particularly positive about A or helpful.  She did not respond when Mrs B queried what had happened with the forms they had returned in January.  When they sought clarity as to what they were supposed to do with the forms, Ms G replied that they could do whatever they liked with them.  When they persisted, Ms G had called Mr F over stating that they did not seem to understand her.  They alleged that Mr F had marched over and had spoken to them in a raised voice.  A further tetchy exchange ensued, in the course of which Mr F said that there was no obligation on him or the School to help complete the forms and they should tick whatever boxes they felt appropriate and send them back.  He also said that under no circumstances were they to be sent directly to the SEC as they had to be signed and stamped by the School first and he did not know if there was enough time left at that stage.

2.13 At that stage, A’s Parents felt that they were in trouble. Owing to all of the issues that had arisen with School 2, they sought guidance from a Special Needs Coordinator with a Disability-related Charity, Ms D, as she had been assisting them throughout A’s educational journey including with the Section 29 appeal. Ms D assisted them with completion of the RACE application forms and advocated on their behalf in subsequent dealings with the Respondents.  They ticked the boxes seeking a scribe (inclusive of a spelling and grammar waiver), helper for practical examinations and a special centre on the form for physical difficulty/ies and a reader and a spelling and grammar waiver on the form for a SLD, signed the forms and handed them into the School on 15th March 2013.  By letter dated 4th April 2013, they responded to Mr F’s last letter and other issues that had arisen in the meantime.  Regarding A’s RACE application they stated: “You have received A’s application for RACE and can you let us know the status of the application.  We were disappointed that at the parent/teacher meeting when we asked you for your guidance on how and what to complete with regards to the RACE application you declined our request.  In many letters you have mentioned the benefits of a collaborative approach, we felt that looking towards you for guidance on such important matters such as a RACE application was correct in order to utilise a collaborative approach in order to put A in the best possible position to complete and succeed in the Junior Certificate Examination 2013.”  It also questioned the School’s use of registered letters to communicate and requested that all future correspondence be copied to Ms D.  They received a response from Mr F by registered letter dated 16th April 2013 repeating and clarifying his position.  [Mr F confirmed that owing to the “frequent and continuous misunderstandings”, he required the full team to be present at any meetings regarding A’s IEP.  Regarding A’s application for RACE, Mr F stated: “I will, of course inform you immediately I receive the SEC’s decision in relation to A’s RACE Application.  I am horrified and extremely upset at your untrue assertion that I declined to give you guidance on filling in the RACE Application.  At the 5th Year PTM Ms G explained to both of you what was required, she then called me over and I outlined, not once but twice, how you should complete what is a relatively straightforward form.  Ms G was present at this time and agrees with my recollection.  Unfounded and untrue statements such as this do nothing to foster trust and cooperation.”]

2.14 Upon hearing nothing further, A’s Parents contacted the Home Economics teacher as the practical was due to commence at the end of April 2013. She had confirmed that a helper had been granted and they presumed that all of the accommodations sought had been granted. Accordingly, they cancelled an assessment they had arranged for A.  They contended that unbeknownst to them there had been a back and forth exchange between School 2 and the SEC regarding Mr F’s refusal to sign off on the RACE application form on grounds of a SLD (thereby certifying that she had a SLD).  They contended that in the process of bringing these complaints, they learned from a note disclosed under an FOI request that in fact all of the accommodations sought had been granted by the SEC but were withdrawn without any explanation.  According to the note, the SEC had contacted School 2 requesting that a letter granting A full accommodations be returned as it had issued in error.  The note and/or letter was never furnished.  [Paperwork was also furnished confirming that A’s Parents had authorised a Professional Disability Advocate to act on their behalf on 15th May 2013.  She had written to Mr F about the issues that had arisen including A’s RACE application and had also written to the SEC regarding same.  Mr F had written back confirming that he could not engage until he had received direction from the Board.]

2.15 On 15th May 2013, Mrs B received a call from Ms G stating that she was concerned that the School had not received any news from the SEC regarding A’s RACE application despite being in constant contact. She gave Mrs B a contact number for Official X, the staff member dealing with the application. Mrs B said she had questioned why she was being given this information as it was the School’s job to follow up and Ms G had replied that she could do whatever she liked with it.  A’s Parents asked Ms D to contact Official X on their behalf and he informed Ms D that the SEC could not progress the RACE application for A as School 2 had refused to sign off on the forms.  Ms D also contacted NEPS for assistance to no avail.  Mr B also rang Official X to query the position and was given the same information.  Official X had also stated that in his five years at the SEC, he had never seen a school refuse to sign off on a RACE application before and “…once there is a Down Syndrome child, we just throw everything at them because we know they need it.”  However, once a school refuses to sign the RACE form, there is nothing they can do.  He informed Mr B that there was an appeal available and asked for an updated assessment for A.  Mr B requested him to put the SEC’s position in writing and received a letter dated 20th May 2013 on official headed paper from Official X stating: “Following our telephone conversation today I wish to officially state that the reasons behind Anot receiving her reader and grammar waiver can be attributed to the school refusing to sign off on the application form on the grounds that she does not have a specific learning difficulty.  Following this refusal I forwarded the application and all other information to NEPS who informed me that the psychological review dated 4th August 2010 did not contain enough information in order for a decision to be made.  I trust this clarifies the situation and I will forward on all the documentation once it is returned from NEPS.” 

2.16 On 23rd May 2013, A’s Parents cancelled an assessment for A organised for 25th May 2013 by Ms D on their behalf. On 24th May 2013, Mr B received a call from Mr F expressing his disquiet about the SEC’s handling of A’s RACE application. Mr B responded by saying that the SEC had done its best and he had written confirmation that it was School 2’s fault for not signing off on the application form/s.  Mr F had protested that he had signed and stamped the forms and asked to see the letter in question.  Mr B replied that he would see it in due course, berated Mr F and hung up.  Mr B received another call from a Senior Manager at the SEC, stating that it was unfortunate that the accommodation sought had not been granted and requesting that he submit a one liner appealing the decision.  She also said that he must have been mistaken about receiving a letter from Official X.  Then Mr F rang Mr B back listing off the physical accommodations which A had been granted but Mr B hung up again.  Mr F also rang Mrs B listing the physical accommodations granted comprising of a scribe (including a spelling and grammar waiver), a helper and a special centre.  Mrs B pointed out that a reader had not been granted.  Mr F asked whether they wanted the School to appeal and she had responded that he could do whatever he wanted.  School 2 appealed the decision on their behalf which Mr B felt was “a strange one”.  A letter of appeal dated 28th May 2018 from A’s Parents was also submitted.  It referred to Mr F’s refusal to sign off on the application on grounds of a SLD and maintained that a reader should be granted stating: “As is common with other adolescents with Down Syndrome, A has difficulties with writing, sentence structure, organizational skills, gross motor skills and difficulty staying on task.  These specific learning difficulties entitle her to reasonable accommodations for her Junior Certificate examination.”  A’s Parents maintained throughout that at no stage had School 2 informed them that there was any issue with signing the form to certify that A had a SLD and were unaware of this fact until their contact with the SEC in mid-May 2013.  Had they been aware, they could have sought their own evidence of a SLD. 

2.17 A’s Parents also sent a letter dated 29th May 2013 (enclosing a copy of Official X’s letter) to the Board of Management and copied to the Minister for Education and Skills, another Educational Representative Body and a Disability-related Charity outlining their concerns as to School 2’s handing of the matter. The letter asserted that since A had started at School 2 in January 2013, she had not been supported to “…realise her true potential” as promised in the school’s mission statement.” and “In fact, the actions and omissions of (School 2) have substantially prejudiced A’s ability to perform to her full academic potential when she takes her Junior Certificate Examinations in June.” It set out a background chronology of events broadly in line with their evidence.  It referred to Mr B’s interactions with Official X regarding the status of A’s RACE application and quoted from his letter of 20th May 2013.  It alleged that by not signing off on the RACE application form for a SLD, “Mr F’s actions have deprived A of her right to participate in the Junior Certificate Examination with the appropriate supports and accommodations envisaged by the system.”  It went on to state: “In particular we are concerned that:  1. A will be sitting her Junior Certificate Examinations without proper accommodations and supports in violation of the Equal Status Acts 2000 and 2004, Pt. 3 s48, the Disability Act 2005, s26(1)(a)(b) and (c) and the Education for Persons with Special Educational Needs Act 2004, s2 and s14(1)(a).  2.  We were not provided with any assistance on how to complete applications to the State Examinations Commission for exam accommodations for A.  3. Applications to the State Examinations Commission were not submitted by School 2 in a timely manner.  4.  Mr F refused to “sign off” on the Application for Reasonable Accommodations for the Junior Certificate 2013 on the Grounds of a Specific Learning Difficulty despite A having difficulties with writing, language, etc.  5. School 2 has not engaged with us regarding planning for A’s next year at School 2 in contravention of our rights as parents under Article 42 of the Constitution in Ireland, Education (Amendment) Act 2012, s23(1)(e) and Education for Persons with Special Educational Needs Act 2004, s14(1)(b)(i) and (ii).”  It further alleged that Mr F had refused to engage with their Advocate, Ms D regarding A’s RACE application and expressed disappointment at the lack of cooperation by School 2 asserting: “By refusing to ensure A is given every opportunity to demonstrate her achievements in the Junior Certificate examinations, the school has deprived our child of hope which is critical to her educational and emotional well-being.”  It outlined further concerns and posed questions about A’s treatment by School 2 management including: “(1)  A’s future at the school.  (2) Mr F’s failure in his role as principal to use an ounce of common sense in relation to the State Accommodations has the potential to seriously undermine the high reputation of School 2 for many years to come.  (3) Mr F didn’t sign off on the forms.  Why weren’t we notified?  (4) Ms G rung us on the 15th of May, at which stage she knew why our daughter’s application was on hold.  Why did she not say anything?  (5) Why has the principal tried to blame the SEC for the mix up.  (6) Why did it take until the 23rd of May for the school to contact us?”  The letter went on to request that the Board of Management appoint a representative to ensure that A is treated fairly and provided with the same opportunities as other students.  It sought to have Mr F (as Secretary of the Board of Management) recused from any Board meetings where this matter was to be discussed owing to a conflict of interest.  The letter concluded: “We as parents are now in the appeals process with the SEC and none of it was necessary according to the official that we spoke to on various occasions.  As parents it was also necessary for us to engage in an appeals process in order for our daughter to be transferred / enrolled to School 2 (letter enclosed).  In the interim, we will give careful consideration to all of the other options available to us.” 

2.18 The appeal was not heard until 31st May 2013 when A’s Parents were told to ring the SEC and were informed that the appeal had been unsuccessful. The ‘Outcome of Reasonable Accommodation Appeal Form’ obtained under FOI stated that: “The appeals committee has considered the appeal submitted in this case in light of the principles set by the Expert Advisory Group, having had access to all documentation relating to the application. A decision has been taken (a) to reject the appeal.  Reason(s) for rejection: On balance, the evidence provided does not warrant the granting of a waiver & reader.”  It had come down to the wire as A’s exams were due to commence the following Wednesday 5th June 2013 and Monday was a public holiday.  A’s Parents contacted the Ombudsman for Children to see if anything could be done but to no avail.  A was gutted by the outcome and became very unwell requiring medical treatment.  Mr B said that they had withdrawn her from the Junior Certificate examinations the day beforehand “…because she hadn’t the help she needed and she wasn’t prepared…”.  They gave an interview to a National Newspaper about the fact that A had been forced to miss her Junior Certificate examinations owing to a lack of support and an article to this effect was published.  They received a letter dated 5th June 2013 from the Board of Management for School 2 indicating that an investigation into their complaint would be conducted but also threatening litigation against them.  The following day, they received a call from a National Broadcaster who had picked up on the story and wanted to interview them.  They underwent a two-hour interview and also furnished the Broadcaster with the letter from Official X.  They were informed that when the Broadcaster’s journalist had rung Mr F for his response, he was furious and had threatened legal action and it was also contacted by Solicitors seeking to have the interview pulled.  It had been due to broadcast on the evening news but was pulled just beforehand.  The Broadcaster had been very apologetic and furnished them with a follow-up contact.  They were of the view that the interview was not aired owing to a legal threat.

2.19 A’s Parents maintained that the letter of 5th June 2013 in response to their letter of 29th May 2013 from the Chairperson of the Board of Management of School 2 constituted victimisation by threatening them with litigation. [The letter confirmed that School 2 had not previously had sight of the letter of 20th May 2013 from Official X and upon Mr F contacting the SEC about its contents and “factual inaccuracies” was informed that it should not have been sent. School 2 had not made a recommendation as to whether A should be provided with reasonable accommodation one way or the other and this was a matter for the SEC.  Regarding their assertion that Mr F should have signed off on the RACE application form for a SLD, it stated: “On a number of occasions, your letter refers to your child having a specific learning difficulty.  As a Board, we understand from Mr F that at no stage has the National Education Psychological Service, or any other party suggested or confirmed that A has a specific learning difficulty.  As you are aware, the procedure specifically states that reasonable accommodation will only be made available where a candidate for examination has a specific learning difficulty requiring this.  This would appear to be the crux of the matter.  We would be obliged if you could please confirm what A’s specific learning difficulty is.  We understand that she has Down Syndrome and we understand that this is not, for the purposes of the State Examinations Commissions, considered to be a specific learning difficulty which requires the provision of reasonable accommodation.”  It further stated that whilst the Board was not in a position to meet again until September, Mr F would make himself available along with the Deputy Principal to meet A’s Parents to “…discuss A’s attendance in the school next year and any issues which need to be dealt with in advance of the school re-opening in September.”  It suggested 19th June 2013 as a date and if unsuitable they could contact Mr F directly to arrange another date.  It further noted: “We understand that Mr F has suggested to you on a number of occasions that a meeting would be appropriate but that you have to date not responded to this proposal.”  With reference to the correspondence confirming appointment of a Professional Disability Advocate, it confirmed that although it was felt that this was unnecessary, Mr F had no objection so long as one of A’s Parents were also present during all meetings or phone-calls.] 

2.20 A’s Parents took particular exception to the next section of the letter. It stated that under the School’s Procedures, prior notice had to be given to a teacher before they could be subject to criticism by the Board and therefore, Mr F had been furnished with a copy of their letter of 29th May 2013 to enable him to respond. It went on to state his position: “I understand that Mr F takes grave exception to the matters alleged and to the version of facts as narrated in your letter.  Mr F has informed the Board that he will be seeking his own legal advice in relation to this matter and that he feels that the manner in which your letter was published to third parties i.e. the Minister for Education, the CEO (of an Educational Establishment), (a Disability-related Charity) and the Board of Management was done in a way calculated to damage his reputation and undermine his standing with the Board of Management and the other parties.  We would however highlight that this is a matter for Mr F to take up himself.”  It then stated the Board’s position: “For our part however as the Board of Management of the school, it is clear that the publication of your letter to third parties was defamatory of the school and damaging to the school’s reputation.  As your letter of the 29th May 2013 was addressed to me, it is reasonable to assume that your comments and purported criticisms are directed at me and at the handling by the Board of Management of A’s enrolment and the issues of the State Examinations Commission.  As a Board we will be reserving our rights in relation to this, however should it become necessary the Board will take all steps appropriate to ensure the reputation of the Board of the school and of the individual members of the Board of Management is not damaged in any way.  The reputation of (School 2) is one which we jealously uphold and is one which we will not tolerate being impugned to third parties, least of all to the Minister for Education or our Patron.”  A’s Parents said they did not respond to this letter or a subsequent invite to meet Mr F because they were angry and the School had threatened to sue them.  They received a standard letter and report dated 25th June 2013 congratulating A on the progress she had made during the year and looking forward to her progress in the coming year.  The final communication was their email to School 2 on 7th August 2013 confirming that A was being withdrawn from School 2.

2.21 Thereafter, A’s Parents transferred A to a third secondary school (School 3) where they also ran into difficulties including a delay in having her enrolled and obtaining sufficient attendance/SNA hours. They confirmed that she had undergone the Junior Certificate in 2014 at School 3 in four subjects without a reader. A RACE application on grounds of physical difficulty/ies had been made and was granted and there had been no application for a reader on grounds of a SLD.  A had passed two of the subjects and failed the remaining two.  Although A’s Parents had arranged extra tutoring, they felt that she had been at a significant disadvantage when undertaking the English examination without the assistance of a reader.  Correspondence between the SEC and School 3 also confirmed that that A was not eligible for a reader on grounds of a SLD given the evidence available in line with the eligibility criteria.  Relations between A’s Parents and School 3 also ended badly and they removed her following her Junior Certificate examinations in 2014.  They had not pursued a complaint to the Equality Tribunal against School 3 because they had already lodged complaints against School 2 and the Department of Education and Skills, it had been a long and arduous process, they were exhausted and having previously engaged Solicitors, they did not have the requisite financial resources.  [A file in relation to the interactions between A’s Parents, School 3 and the SEC subsequent to her withdrawal from School 2 furnished in relation to the investigation of these complaints mirrored many of the issues subject to these complaints.  In particular, School 3’s stated position for the 2013/2014 academic year was that it was unable to submit a RACE application for a reader as A did not meet the criteria as laid out by the SEC.]

2.22 A’s Parents added that after A’s departure from School 3, they had difficulty accessing suitable further education until they found a hairdressing course in Northern Ireland which she passed. They confirmed that she had moved onto an independent living arrangement with two days a week in college.

2.23 A’s Parents confirmed that they also received a letter from a Senior Official in the SEC on 4th June 2013 effectively stating that everyone had done everything possible. [It clarified Official X’s letter and outlined the purpose of the RACE Scheme and rationale for the requirement of a SLD as defined for the purposes of accommodations on grounds of a SLD. It confirmed that Mr F had not been in a position to certify that A met the eligibility criteria for RACE and A had not been granted a reader because all of the evidence before the SEC (and NEPS on its behalf) and the Appeals Committee was that A had a general learning disability and not a SLD.]  Through a question posed on their behalf in the Dáil, they subsequently learned that A’s RACE application had been changed from a Junior Certificate to a Leaving Certificate application.  They felt that this was flawed because it was not the application that had been made and nobody from the SEC had contacted them at the time to explain the process.

2.24 Commenting on the aggravating effect of Official X’s letter of 20th May 2013 and the SEC’s position that it had been unauthorised, Mr B said that he had been kind, helpful and truthful and he still regarded it as an official State letter. Regarding School 2’s position that Mr F could not have signed off on the form to certify that A had a SLD when all her available assessments referred to ‘a general learning difficulty’, Mr B contended that this was because nobody had looked for a SLD by way of an updated assessment. He also pointed out that no questions had been raised regarding whether A had a physical disability and she had still been granted the physical accommodations sought.  When asked whether he had expected Mr F to sign off on the form certifying that A has a SLD without any evidence to that effect, he contended that he should have had her assessed.  A’s Parents confirmed that they had also made a number of appointments to have A psychologically assessed with NEPS/other psychologists and following her withdrawal from School 2, A had been assessed by a number of experts.  Several reports were submitted in support of their contention that A had a SLD.  A Report dated 26th July 2013 commissioned from an Educational Psychologist concluded that: “A, a student with Down’s Syndrome, presents with a level of learning disability which would be typical of individuals with that developmental disorder.”  It recommended: “Tests and examinations should be practical wherever possible due to A’s lack of independent, functional literacy skills.  Where verbal elements are included, these should be oral rather than written, using a reader to read and repeat questions and a scribe to record her answers.”  A was also assessed by a Senior Speech and Language Therapist, Ms C (who gave evidence on behalf of the Complainant) in 2014 and her Report dated 7th February 2014 concluded that the disjoint between A’s language scores and her general intellectual ability was “… evidence of a specific learning disability which is not attributable to her general intellectual ability.”  Notwithstanding confirmation by the SEC to School 3 that these Reports did not confirm a SLD for the purpose of a reader, they maintained that the speech and language difficulties encountered as part of Down Syndrome should have been considered in the context of a SLD under the RACE Scheme.  They also submitted that the Equality Tribunal should look behind the Second-named Respondent’s Circulars containing the rationale for limiting the granting of a reader under the RACE Scheme to students with a SLD as defined therein.

2.25 In documentation disclosed on foot of their FOI request, A’s Parents had received a three-page letter dated 8th August 2013 from Mr F to the SEC setting out his position and containing handwritten notes including: “No acknowledgement. Answers, explanation letter factually incorrect and should not have been sent. School acted accordingly and appropriately.  A was transferred to another school.  Principal there possible (probable) will sign form.  If accepted by SEC will be used by A’s Parents to come after me and school.  Need protection, not paranoid.”  (A copy of this document was furnished to the Respondents and Mr F confirmed that this was his draft letter to the SEC containing his notes.) 

Effects of alleged Failure to Provide Reasonable Accommodation, Discrimination & Victimisation

2.26 Overall, A’s Parents felt that the Respondents had discriminated against A on the ground of disability by not affording her reasonable accommodation to undergo her Junior Certificate examinations. In relation to the First-named Respondent, it was contended that School 2 had not assisted them to apply for RACE and/or had not signed off on the form to enable A to have a reader for her Junior Certificate examinations. They were further victimised by School 2 with the threat of litigation in response to their grievances.  They contended that the treatment they were subjected to throughout including communication by way of registered letters was reprisal for bringing the Section 29 appeal.  Mrs B said that there had been no communication from the First-named Respondent and every time they contacted the School with a query they received a registered letter in response.  The Second-named Respondent had likewise discriminated against A by refusing to provide her with a reader for her Junior Certificate examinations and victimised her by maintaining this denial of support when she moved to School 3.  They also maintained that they had been discriminated against on the family status ground as this treatment had affected them as a family.  When asked about the effects of the alleged discrimination on A, Mr B stated: “…she wanted to belong… she wanted to be part of society.  This was her opportunity; she has no more opportunities in life and this opportunity was taken from her.  She wanted to really be part of the gang.”  A’s Parents expressed the view that in circumstances where A will never marry, have children, drive a car or live on her own, undertaking the Junior Certificate was her biggest opportunity in life.  They also expressed the view that it did not matter whether A passed all of her subjects, rather that the provision of a reader would have afforded her the opportunity to participate in the examinations at her level and enable her to achieve her best.  They contended that with the assistance of a reader, A would have passed the two exams which she had not passed at School 3 or at least would have performed better.  They explained that a reader would have been of particular assistance as A is unable to self-correct reading errors and hence give correct answers.  She would also have been accustomed to having her Parents read out lines to her repeatedly at home in order to comprehend them.  In this respect, Mrs B felt that the role of the reader extended to repeating sentences if A had not understood them in the first instance and emphasising words that were highlighted in the exam paper.  A’s Parents confirmed that whilst A had been unhappy with the conduct of her English exam by School 3, she had not been upset at not passing all of her exams.  Whilst they accepted that sitting the Junior Certificate examinations in 2014 at School 3 and passing two subjects was an achievement, they maintained that A would have felt more supported and have performed better with a reader.  When asked what they were seeking from the complaints at this juncture, Mr B responded: “I am looking for blame, I am looking to blame people to hold up their hands and say ‘look I made mistakes’ it is a simple thing,”  When asked whether they were attributing all the ‘blame’ to School 2 in circumstances where they had also encountered difficulties at Schools 1 and 3, they maintained that A had been at a disadvantage at School 3 as a consequence of School 2’s actions.

2.27 Whilst accepting that many of the points raised were now moot, A’s Parents felt that these issues were not moot for A who had been wrongly deprived of a reader for her Junior Certificate examinations. They also requested the Tribunal to give directions as to actions that should be taken by the Respondents in this respect and compensation for the discrimination suffered. They pointed out that there was no way of quantifying the educational experience and nothing would compensate them for A’s lost years.

Questioning of Mr and Mrs B on behalf of the First-named Respondent

2.28 As Mr and Mrs B had given their evidence in tandem, it was agreed that it would be most efficient to question them as to the issues that they had direct knowledge of rather than questioning them in turn. Counsel for the First-named Respondent (School 2) put it to them that between the original complaint and various submissions made by lawyers on their behalf and more recently, submissions they had made and their oral evidence, they had told their story or aspects of their story approximately six times to date. It was contended that they had made a number of new allegations against School 2 and in particular against Ms G and Mr F in the course of their oral evidence which were not contained in any of their written submissions.  Specifically, it was put to Mrs B that Mr F denies the allegation made for the first time during her oral evidence that during a meeting with her on 9th January 2013 he had said that she and A “…will learn the lesson that it is not about the individual here it is about the collective”.  Mr F also rejected her account that she had shook his hand and thanked him for his honesty and he had swiveled on his chair and wiped his hands.  It was put to Mrs B that it was incredible that such a significant statement made by a Principal in the context of a discrimination complaint that a child’s individual needs had not been taken into account had never been put in writing.  Mrs B maintained her position as being truthful and contended that they had informed their lawyers of this incident from the outset.  However, she agreed that she and her husband had not made any reference to this incident in writing including within their complaint of 29th May 2013 to the Board of Management, ES3 Complaint Form to the Tribunal or written submissions.  Likewise, it was put to A’s Parents that Mr F vehemently denied the allegations made about his conduct during their initial meeting on 16th October 2012.

2.29 It was further put to A’s Parents that in circumstances where Section 29 appeals were commonplace and there had been a previous Section 29 appeal against School 2, Mr F would not have made the statement to the effect that he did not want to be the first Principal subject to a Section 29 appeal. They maintained their position on this point. Counsel also challenged their contention that A had only been accepted into School 2 because they had submitted a Section 29 appeal and that the School’s attitude towards them had been a personal vendetta for submitting the appeal.  On this point they were asked to explain this in the context of correspondence confirming that the Board had reconsidered its position and reversed its decision on 21st November 2012 on foot of their written request dated 18th November 2012.  The Section 29 appeal had not been submitted until 21st November 2012 and was received by the Second-named Respondent on 23rd November 2012.  They replied that they had submitted the Section 29 appeal to meet the statutory deadline in circumstances where the School had not confirmed the offer of a place for A that academic year in writing as “…there wasn’t much trust there.”  When asked why they had proceeded to transfer A to School 2 in circumstances where there was a lack of trust before she had even been accepted, they said that they still felt that it was in her best educational interests, a bridge had been built with Mr F following their meeting on 29th November 2012 and he had a duty of care.

2.30 Counsel asked A’s Parents about a number of factual discrepancies arising from submissions made on behalf of the Complainant in 2015 and 2016 deemed by School 2 to be fundamentally untrue and misleading. Firstly, it had been contended that as a consequence of the Respondents’ actions, A had not been permitted to commence School 3 until October 2014 thereby missing a year of schooling when it had materialised that she was in fact admitted there in October 2013. Secondly, it had been contended that A “…did not sit her junior cert exams when she was not afforded reasonable accommodation in the form of a reader as it was inevitable that she would be unable to demonstrate her knowledge to the best of her ability and failure of her exams would be more likely.  The Claimant withdrew from the school after the threatening letter received from the school and with the ongoing threat of litigation towards the family when it continued to wash its hands of any responsibility for what occurred.  The Claimant has not sat her Junior Cert and will not be doing so.”  A’s parents contended that these were errors on the part of their lawyers which they had not spotted at the time but were later rectified in a letter dated 12th January 2016.  A’s Parents were also questioned about the veracity of their reasons for not pursuing a complaint against School 3, when the same situation had arisen there and A had been deemed not to be entitled to a reader for her Junior Certificate examinations in 2014 owing to the absence of a SLD.

2.31 Counsel further questioned the accuracy of A’s Parents recollection of their interactions with School 2. It was put to them that Ms G denied that they had discussed A undertaking her Junior Certificate examinations during their initial meeting. The School’s understanding was that A was being transferred to the SEN Unit as the JCSP Programme was only available there.  Mrs B maintained that as far as they were concerned, they were transferring A from mainstream in School 1 to mainstream in School 2 with the provision of resources from the SEN Unit.  On this point Counsel referred A’s Parents to their letter of 18th November 2012 to School 1 appealing for it to support their application to transfer A to School 2 after the initial refusal.  It stated: “Firstly, both of us wish to express our sincere gratitude for all of the wonderful work that both you and your staff have given A over the years.  But as you are aware it was with extreme reluctance that we as parents made the difficult decision to exit A from Mainstream to Special Needs.”  It was put to them thatthe reason for A leaving School 1 was to move from a mainstream school to a school for special needs.  Mrs B explained that they had written this because Ms G had explained to them that they always put children like A down for special needs as that is where most resources are available but encourage their students to move between mainstream and SEN classes.  A’s Parents were referred to the email exchange with Mr F cited above wherein he confirmed that the transfer form for A they had completed in October 2012 was for transfer to the SEN Unit whereas the application to enrol A for the following year was for mainstream and the two processes were different.  Mrs B maintained her position that they transferred A based on the understanding that she would be moving from third-year to third-year and moving between mainstream and SEN classes.

2.32 It was put to A’s Parents that whilst School 2 had accepted that A undertaking the JCSP Programme and Junior Certificate examinations was important to them, its position was that she would firstly have to come into the School, settle down and be assessed before any decision was made about what examinations she would undertake and when. In response, Mrs B stated: “That is partly fair, but we also and always stated that while we agreed to assessment and monitoring, it was important that A follow the curriculum of the Junior Cert programme as that was our primary reason for transferring A over there.” Mrs B was referred to Ms G’s typewritten attendance note of their meeting on 29th November 2012 stating: “A to start school on the 21st December, to help the transition.  Focus to be on the social interaction, rather than the academic.  Undertaking of exams would be reviewed after a settling in and observation period during January.  No commitment to exams could be given, until the student had been observed.  An IEP review meeting would be called at the end of January, to discuss A’s options and to develop a programme suitable for A’s educational and social needs.  Art will not be taken as an exam subject.”  Mrs B was also referred to her own note of the meeting disclosed during the exchange of documentation stating: “We thanked the principal and the Board of Management for the opportunity for A to join the school in January.  We expressed our appreciation of the place for A to make a new beginning.  With regards to the Junior Certificate, given A’s recent educational struggles we are taking her educational developments one day at a time.  So we will let her settle and then make the decision which is best for her to either sit the exam or not.  After reviewing her situation both educationally and psychologically and we can then all agree what is best for her in the short term.  Obviously we are conscious of the Dept parameters and timeframes but we will work within these.”  She was also referred to her letter of 13th January 2013 stating: “While no decisions have been made at this early stage in relation to State Examinations, as agreed, it’s necessary that A follows the modified curriculum, while integrating into third year successfully.”  Mrs B accepted that she had written this and contended that contrary to what had been agreed with School 2, A had not been following the JCSP. 

2.33 Regarding their state of knowledge as to the reason for Mr F’s refusal to sign off on the RACE application for a SLD, A’s Parents were referred to the letter dated 16th January 2013 as cited from Mr F stating: “I have contacted the State Examinations Commission and they have informed me that no RACE Application has been received for A (from School 1). I have referred this to the NEPS Psychologist who will assess A’s eligibility. I am enclosing forms which you may wish to complete.”  Whilst accepting the contents, Mrs B maintained that this letter was not clear as to the purpose of the assessment. 

2.34 Ms G’s position was put to A’s Parents, being that she had specifically flagged a concern that A would not meet the eligibility criteria for a reader under the RACE Scheme which required a SLD. They had also been sent the RACE eligibility criteria and guidelines. They denied that this was the case.  Ms G’s notes of the meeting of 19th February 2013 were also put to them: “Mr F arranged a review meeting.  A’s Parents, NEPS Psychologist, Dr J, SENO, Mr F and I were present.  The agenda for this meeting was to review A’s needs and participation in state exams.  I gave a progress report on A outlining her strengths and areas of concern.  Mrs B responded to this positively highlighting the difficulties A had overcome regarding the transition, but seemed settled now.  I had drawn up a draft IEP focusing on A’s social and life skills needs, rather than the academic.  I expressed and raised deep concerns regarding A undertaking exams.  I felt the failure she would experience sitting her exams could impact on A and held very little beneficial purpose.  I make this statement based on the observations and exam results obtained during her Pre’s.  Mr F supported my opinion and raised his concerns, strongly advising A’s Parents to postpone the Junior Cert until 2014, allowing teachers and A time to prepare for this.  A’s Parents requested A to sit her Junior Cert this year, against our advice, as they felt it was an important life experience for A to sit her exams and attend the Forum after, despite the outcome of grades.  Mr F and I stated again we felt the experience of failure as unnecessary and sitting the exams this year could be detrimental.  It was agreed that I would support this parental choice by focusing on her exams, rather than the social and life skill element highlighted in the draft IEP.  I spoke to A’s Parents on my own at the end of the meeting to discuss inappropriate use of language by A in one of her pre papers.  I felt the need to voice again of a focus on social skills, as highlighted in the draft IEP, to help A’s Parents address this issue.  I gave them a copy of the draft IEP to look at and to discuss when A’s IEP would be formulated.”  Mrs B agreed that these notes were reflective of the discussion.

2.35 When A’s Parents were asked to acknowledge that School 2 clearly had a differing view as to whether it was in A’s best interests to undergo the Junior Certificate examinations that year, they maintained that it had been her choice as supported by them. When asked whether it was legitimate for the School to have concerns about someone in A’s position undertaking the examinations that year and to take the view that it might not be in her best interests, Mrs B responded that a school has a duty of care to best support a child in her own decision-making process. She accepted that despite their differing views, School 2 had agreed to allow A to undertake the Junior Certificate examinations. 

2.36 Counsel outlined School 2’s position regarding the completion of the RACE application forms to A’s Parents with reference to Ms G’s contemporaneous notes. School 2 had firstly established that that no application for RACE had been made by School 1 for A’s Junior Certificate. Ms G then had a discussion with the SEC and also the assigned NEPS Psychologist, Dr J, and specifically advised A’s Parents as to her concerns regarding A not meeting the criteria for a SLD.  Mr F had also spoken to the SEC in January 2013 confirming that if A did not have a SLD, the School could not sign off on the form to that effect.  Mr F was advised to submit the forms unsigned to the SEC where they would be considered on their merits.  Accordingly, he had submitted them with the accompanying note to the SEC on 13th February 2013: “After a consultation with the NEPS Psychologist, Dr J, the school did not make an application for RACE on behalf of A.  As advised by Dr J, A, in his opinion, does not meet the requirements specified to be eligible for RACE.  A has been diagnosed with a moderate general learning difficulty, with no significant discrepancies.  As requested by A’s Parents, I am forwarding on an application.”  The application forms were returned to School 2 on 4th March 2013 with the words “no accommodations ticked, form not signed” handwritten on his note.  Specifically, it was put to A’s Parents that School 2 had contacted Dr J who was of the view that A was not eligible for accommodation on grounds of a SLD.  They maintained their position that they had not been made aware of any issue with A meeting the requirements for a reader and were only asked to sign the forms.

2.37 A’s Parents agreed that at the parent-teacher meeting on 13th March 2013, they had asserted that they had not been given any help or guidance with completion of the RACE application forms and had been told to tick whatever accommodations they thought were appropriate and return them to the School for submission to the SEC. However, they disagreed that they had been repeatedly informed that the School could not sign off on the form for a SLD and that they had been informed of the reason, being that A did not meet the criteria. They also maintained that they had already signed-off on an earlier set of forms which they believed had been processed by the SEC and now they were being asked to complete a new set of forms.  It was not in issue that they may have been sent a new set of forms.  They maintained that they first discovered that the School had not signed off on the forms in mid-May 2013.

2.38 Counsel cited typed-up entries a ‘RACE Diary’ maintained by Ms D as Advocate for A’s Parents, contemporaneously recording all her interactions on behalf of A including the following: “Re RACE accommodation for A for Junior Cert 2013. In early March, parents became aware that the school expected NEPS to sign off on RACE application.  Principal felt he couldn’t make decision against advice of NEPS Psychologist and he referred application to SEC  07/03/2013 – Mother asked the school to forward application immediately.  Parents were asked to download form and forward it themselves.  14/03/2013 – Calls to SENO (details)… now retired.  Suggested calling (a named official) in NEPS Head Office…  Then spoke with Dr J and asked if he could sign off.  He said No and that it was up to the school to certify level of need.  He said to continue appealing if applications were unsuccessful.”  A further entry dated 19th March 2013 noted: “In a telephone call to the Principal, he said that NEPS advice is that A was not entitled to accommodations.  Said the school would make a judgment but would not sign.  The parents must fill in form and sign.”  Counsel also read from an email from Mrs B to Ms D on 14th March 2013 sent the day after the parent-teacher meeting which stated: “Well we staggered through the meeting and A is doing CSPE, HE and English this year.  We let the art go.  Some of her classes are being freed up now so she can do the written work as required.  However, when it came to signing the application forms, Mr F informed us that it was up to us to fill in the boxes as we saw fit.  When I said we didn’t know what to fill in and we thought it was done in conjunction with the school he said he didn’t approve.  So we still have the forms and we don’t know what to fill in.  I asked him should we send it off to State accommodations and he said the School will.  So what boxes do we tick Ms D?  Can you ring him back and give me some guidance on how to fill the forms or should we just send them back blank?”  It was put to A’s Parents that Ms D’s account tallied with the intended evidence on behalf of School 2.  Based upon Ms D’s contemporaneous notes, it was also put to them that they were clearly made aware from March 2013 that the School was not signing off on the RACE application forms contrary to their direct evidence.  They maintained their position and stated that arising from the parent-teacher meeting, they understood that the School was going to sign and stamp the forms.  It was put to them again that the School had informed Ms D (who they had engaged on their behalf) of the position.  They accepted that if this information had not been relayed to them, it was not the School’s fault. 

2.39 Counsel questioned A’s Parents in relation to the concept of a specific learning difficulty (SLD) and the RACE Scheme. It was put to them that the State Examinations Commission (SEC) who operate under the auspices of the Second-named Respondent was the decision-maker responsible for determining who gets accommodations for State examinations and not School 2. It was further put to them that the applicable RACE guidelines at the time provided that a prerequisite for the type of accommodation sought (being a reader in the instant case) was that the student had a SLD and there was no diagnosis confirming that A had a SLD as at May/June 2013.  Mrs B contended that there had been no diagnosis as first of all, one had never been requested and secondly, it had been obvious to them as a family that A had a SLD in conjunction with her Down Syndrome.  When it was put to them that A’s last educational assessment undertaken by NEPS in 2010 did not disclose a diagnosis of any SLD, A’s Parents contended that this was because the Psychologist had not looked for a SLD.  It was further put to them that the evidence of the NEPS Psychologist, Dr J (on behalf of the Second-named Respondent), would be that when he was contacted by School 2, he had expressed the view that A did not have a SLD.  As the guidelines required there to be a SLD and there was no diagnosis of A having a SLD at the material time, the School was not entitled to sign a form certifying the contrary.  On this point Counsel referred to the ‘authorisation’ part of the form.  This included a space for the Parent/Student’s signature which was signed by Mr B and A respectively and a space for the Principal or Deputy Principal’s signature under the following statement: “I certify that the candidate named above has a specific learning difficulty and I wish to apply on behalf of this candidate for the proposed arrangements.”  Therefore, the only way that School 2 could sign off on the form was if it was certifying A as having a SLD.  In response, A’s Parents maintained that School 2 had a duty of care, and as the gatekeeper to all support services, an obligation to either prove or disprove whether A had a SLD by obtaining an updated assessment or by informing them and the relevant bodies so as to afford them the opportunity to acquire same.  On this point, Counsel questioned whether A’s Parents were making the case that the School had a legal duty including under the Education Acts and/or the Equal Status Acts to acquire and pay for a fresh assessment to confirm whether or not A had a SLD.  They maintained that it was Mr F’s duty to prove one way or the other whether A had a SLD.  In reply, it was put to them that Mr F had contacted Dr J and obtained his opinion on this issue and hence had discharged any duty of care arising. 

2.40 Counsel put it to A’s Parents that everybody had gone beyond their scope to ensure that A’s RACE application was processed on time for the examinations. Firstly, as the time limit of 31st October 2012 for a RACE application for 2013 had already passed by the time A had entered School 2, it had to be processed as a late application and was in fact fully processed. Mrs B responded that there was specific provision for this.  Secondly, the SEC had processed the RACE application by adopting a more flexible procedure used for Leaving Certificate applications to ensure that it could be processed based upon an opinion from NEPS.  A’s Parents disagreed and Mrs B replied: “Our understanding is that instead of everybody going outside of the scope in order to facilitate A, perhaps if they had remained within the scope and done what they were supposed to do, and kept the parents and student informed, we wouldn’t be all sitting here today.”  In reply, Counsel put it to them again that they had been kept so informed.

2.41 Counsel also questioned A’s Parents in relation to their interactions with Official X and put it to them that the position stated in his letter of 20th May 2013 had been incorrect and issued without authority as disavowed and clarified in further correspondence from the SEC. The latter position had mirrored School 2’s position that Mr F could not sign off on a RACE application form on grounds of a SLD where there was no evidence of a SLD and the SEC had agreed to process the forms unsigned. A’s Parents maintained that Official X had told the truth in his letter written on official State paper. 

2.42 Counsel then proceeded to question A’s Parents about the various appointments for psychological assessments they had made for A and the assessments that were subsequently undertaken. It was put to them that it was not the School’s fault that the NEPS Psychologists that they had requested to conduct updated assessments had not done so. They refuted the suggestion that the reason that they had requested an assessment from the NEPS Psychologist in February 2013 was because Ms G had informed them that A did not have a SLD.  Regarding their contention that School 2 had not provided the necessary information for an assessment they had arranged for A, it was put to them that the letter from Mr F dated 8th March 2013 as cited above had stated that neither he nor Ms G had understood what she had meant by “the psychologist form” but she had never replied to clarify.  Mrs B said that she had not replied as she had made the request twice and at that stage decided to source another Educational Psychologist for an assessment on 25th May 2013.  However, this appointment had coincided with learning that School 2 had not signed off on the RACE forms and they were too traumatised to make the long journey to the appointment so deferred it to a later date.  Ultimately, that Psychologist assessed A at a later stage after she was withdrawn from School 2 and his Report of 26th July 2013 is cited above. 

2.43 Counsel then referred A’s Parents to their letter of complaint dated 29th May 2013 to the Board of Management which was submitted along with their ES3 Complaint Form to the Equality Tribunal to set out the basis for their complaints. As outlined above, the letter contained a number of specific allegations against School 2 and particularly against Mr F and had been copied to the Minister for Education and Skills, another Educational Representative Body and a Disability-related Charity. In this respect, it was put to A’s Parents that it would have been more appropriate to direct their complaints to Mr F and afford him an opportunity to respond before circulating the letter widely including to his employer.  In response, they maintained that they were correct and constitutionally entitled to write to the other bodies concerned given the circumstances and timeframe involved.  In this respect, it was put to them that there was a risk that there might be consequences because other people have rights too.  When pressed as to whether they accepted that other people had rights, Mrs B responded: “We accept that everybody has rights except for our A”.  It was also put to them that at the time of responding, the Board had not had sight of Official X’s letter of 20th May 2013.  Counsel opened and read from the Board’s letter of response of 5th June 2013.  Regarding an invitation to a meeting on 19th June 2013 with the Principal, Mr F and the Deputy Principal, they maintained that the reason for declining this was that there would be no person of an independent nature at the meeting, coupled with the fact that A had become unwell.  When asked whether Mr F was entitled to take legal advice on foot of the allegations made in their letter to the Board and damage to his reputation, Mrs B responded that he was entitled to do whatever he wants as he had done on many occasions before.  Regarding any potential complaint of victimisation, it was put to A’s Parents that there had not been any threat of litigation directly to A.  In reply, they both said that they took the threat of litigation as being a threat to the whole family.

2.44 Finally, A’s Parents were asked about A’s educational journey including her transfer from School 1 to School 2 and her subsequent withdrawal from School 2 on 7th August 2013 before she joined School 3. It was put to them that School 2 could not be held responsible for any of the difficulties that they subsequently encountered in School 3. In response, Mrs B stated that they could see no other reason for the difficulties they subsequently encountered at School 3.  They also attributed the fact that A had not been granted a reader for her Junior Certificate in 2014 at School 3 to some form of collusion between the latter two Schools and contended that there was a bias against A.  However, they acknowledged what a substantial achievement it was for A to have undergone the Junior Certificate examinations and Mrs B stated: “The fact that our daughter managed to present herself at Junior Cert level and to sit the exams either with or without the proper supports in place was and always will be a magnificent contribution.”  Whilst A’s Parents also agreed that since leaving secondary school, A had been doing well, they disagreed that School 2 could not be held accountable for any events occurring after she left.

Questioning of Mr and Mrs B on behalf of the Second-named Respondent

2.45 Counsel for the Second-named Respondent firstly questioned A’s Parents in relation to the RACE Scheme with reference to the applicable guidelines at the material time in 2012-2013. Reference was made to the sixth paragraph which provided: “The State Examinations Commission operates a simplified devolved application model in relation to the Reasonable Accommodation Scheme at the Junior Certificate Examinations. Essentially the Commission accepts the school’s confirmation on the application form is sufficient evidence to enable the Commission to confirm accommodation.”  It was put to A’s Parents that the school’s confirmation on the application form was sufficient evidence to enable the SEC to grant an accommodation and the school was responsible for certifying eligibility for any of the accommodations available under the RACE Scheme.  In response, Mrs B contended that the SEC had access to NEPS in terms of having A’s eligibility assessed.  Without going into to the technicalities of how a specific learning difficulty (SLD) for the purposes of the RACE Scheme is assessed, Counsel then referred A’s Parents to the definition used under a heading entitled ‘Identification’ as follows: “A specific learning difficulty may be indicated where:- There is a marked failure to achieve expected levels of attainment in basic skills such as reading and writing.  - A history of such failure not related directly to factors such as poor attendance, poor motivation or problems in social interaction which may affect attainments.  - The observed level of difficulty is inconsistent with the candidate’s ability as demonstrated in knowledge of course content and knowledge of other areas of the curriculum.”  When pressed, A’s Parents accepted that this was the definition of a SLD for the purposes of the RACE Scheme at the material time.  Counsel then referred to page 7 of the guidelines which set out the eligibility criteria for a reader and provides: “Access to a reader is appropriate where it can be established that the candidate’s inability to read a question paper is attributable to a specific learning difficulty as distinct from his/her general intellectual ability.”  In this respect, A’s Parents were asked whether they accepted that for the purposes of the RACE Scheme for the Junior Certificate examinations in 2013, there was a distinction between general intellectual ability and a specific learning difficulty.  Whilst they accepted this distinction, they questioned its lawfulness in the context of RACE.

2.46 Counsel put it to A’s Parents that the first criteria that had to be met for access to a reader was that the student had a SLD as defined, and that their inability to read the paper was attributable to that SLD rather than to his or her general intellectual ability. They maintained their position that a reader could still be granted even where a student does not have a specific learning difficulty but were unable to point out where this was covered by the RACE Scheme criteria for 2013. They also referred to the fact that the criteria had since changed to take account of intellectual disability.  It was put to them that this was irrelevant and they were entirely mistaken in relation to their understanding of the eligibility criteria.  When repeatedly pressed to answer the question of whether as a matter of principle, a student who does not meet the eligibility criteria should be granted accommodation under a scheme, A’s Parents declined to give a ‘yes’ or ‘no’ answer and contended that this depended upon whether the student was tested for that purpose.  They confirmed that they had been aware that the closing date for the RACE Scheme for the Junior Certificate in 2013 was 31st October 2012.  With reference to their direct evidence, Counsel asked them about their understanding of the role of a reader and whether they accepted that it was solely to read the examination paper to the student.  Mrs B responded: “I accept that the purpose of a reader is to read the question how it is written out in the paper, and if the words are highlighted or emphasised that the reader will do so audibly.”  It was put to Mrs B that she had gone somewhat further in her direct evidence and in fact what they had really wanted was a reader to explain the questions to A. 

2.47 Regarding A’s transfer from School 1 to School 2, Counsel read from an email from Mrs B to Ms D on 1st November 2012 as follows: “The other thing we did was remove to A from the Junior Cert programme last Friday. Mr B spoke to (the Principal) briefly and she said she would instruct her staff.In a way it was the easiest decision because we couldn’t allow A to have all that pressure from the school.  When we fought for that and we did and we won I still didn’t realise then that it was a two-year syllabus that A would have to deal with.  I wouldn’t do that to my other children so certainly not to A.  I was also hoping that (School 2) will take on board now that it would be better for A to transfer to second year and start the JC programme with her peers.”  It was put to Mrs B that at the time, she had not wanted A to sit the Junior Certificate in 2013 but instead had wanted her to start a two-year programme towards the examinations in 2014.  Mrs B accepted that was what she had written at the time. 

2.48 Counsel questioned A’s Parents regarding the various educational assessments A had undergone. They disagreed with the Second-named Respondent’s position that a NEPS Educational Psychologist will always assess for a SLD during an assessment and unless it is found, it will not be noted in a professional report. They also disagreed that every single educational psychologist who had ever assessed A had looked for a SLD and had not found one.  It was put to them that the Report of 26th July 2013 arising from the educational assessment they had subsequently obtained specifically stated: “The results of the WIAT 2 scale show levels of basic educational skill which are commensurate with her general ability.” concluding that “A’s attainment is commensurate with her ability.”  Therefore, she did not have a SLD.  They contended this was a mistake as they had asked the wrong question and had not sought a test for a SLD.  It was put to them that they had obtained this assessment in the context of A not sitting her Junior Certificate owing to the absence of accommodations and questioned whether they were not accepting the evidence of their own expert that A did not have a SLD.  A’s Parents maintained their position that a SLD had not been found because “we didn’t ask for it to be looked for.”  A memo made by Dr J following their meeting at School 2 on 19th February 2013 was put to them as follows: “Mrs B then inquired about A being psychologically assessed.  I explained that (another NEPS Psychologist) had carried out the most recent psychological review on 4th August 2010.  Parent-and-teacher reports indicated that A’s presentation had not changed in the intervening period.  Therefore, there was no reason to complete a further psychological assessment.  I explained that I was available to provide psychological advice and support for A when required.  I then left the meeting as Mr and Mrs B wanted to discuss a separate matter with school staff.”  In this respect, it was put to A’s Parents that there was no need for an updated assessment as nothing had changed in A’s presentation based upon all of the information to hand but they maintained otherwise.  In response to this line of questioning, they introduced a further Report dated 14th January 2015 which they had obtained from a Consultant Educational Psychologist to support their contention that A had a SLD.  However, they were unable to point out where it stated that A had a SLD within the Report and said that this information had arisen during a conversation about the Report.  The Report noted that A was referred by her Parents “…solely in relation to her reading speed and reading accuracy.”  On the WIAT-2 test, A’s reading speed and accuracy was found to be at or below the 25th percentile and she cannot self-correct.  It was put to them that the Report was inconclusive, the only test conducted was a WIAT 2 test without the provision of results.  It did not establish that A had a SLD and in fact noted: “Given the restrictiveness of the assessment required of the examiner, it is impossible to come to accurate conclusions about A’s age equivalent reading scores.  Additionally, operating with no knowledge of her overall level of cognitive function puts another level of restrictiveness on interpretation of results.”  A’s Parents maintained otherwise.  They also disagreed that having made arrangements for three separate assessments in 2013 and cancelling/postponing them, they had ample opportunity to have A assessed in advance of the examinations and put new evidence before the SEC or the Appeals Committee but had not done so.

2.49 Counsel also questioned A’s Parents regarding the application process for the RACE Scheme. They confirmed that it was common case that School 2 had not signed off on either set of RACE application forms and it was for the School to certify the presence of a SLD and hence eligibility. In light of this position, Counsel asked them what steps they thought should have been taken by the SEC when the forms were not signed off.  They contended that the SEC should have consulted with NEPS to “…find out exactly what was wrong with A.”  On this point it was put to them that the SEC had in fact consulted with NEPS, utilising a process usually reserved for Leaving Certificate RACE applications but occasionally used for Junior Certificate applications when there was a doubt and NEPS had concluded that A had not met the criteria for a reader.  A’s Parents maintained that this meant that Leaving Certificate criteria was applied notwithstanding the SEC’s position that in fact Junior Certificate criteria was still applied.  It was put to A’s Parents that the application for RACE was considered based upon the application being made and the supporting evidence submitted including her mock exam scripts, a writing test conducted by School 2 and previous NEPS Assessment Reports.  Counsel further put it to them that in keeping with the guidelines cited above, it was for the School and also the Parents to determine what evidence was relevant to an application for RACE.  A’s Parents maintained throughout that the SEC had maintained an improper process in relation to assessing A’s RACE application.

2.50 It was common case that a RACE application had been made by School 3 on behalf of A for accommodations on grounds of a physical difficulty which had been granted but no application for a reader on grounds of a SLD had been made for her Junior Certificate examinations there in 2014. A RACE application had also been made on behalf of A for the Leaving Certificate Applied in School 3. In this respect, Counsel read from a letter from School 3 to SEC as follows: “To whom it may concern, please find attached an application for reasonable accommodation for LCA year 1.  There has been a delay due to the fact that we were waiting on an Audiology Report and also waiting for the parents to engage with NEPS.  The student was granted a scribe and helper in practical subjects for her Junior Certificate 2014.  As the parents refused to give consent to the school to seek advice from NEPS regarding her application, the school has contacted the SEC directly to request assistance with the application.  Again in October 2014 parents refused to give the school permission to contact NEPS and therefore we are forwarding this application to you to complete.”  It was put to A’s Parents that in October 2014, they had refused to permit consideration of any NEPS assessments for A which would have assisted with her application for reasonable accommodation for the LCA.  In response, Mrs B said that they were no longer engaging with NEPS as they had obtained and submitted their own assessment.

2.51 Finally, Counsel questioned A’s Parents about a number of other matters that had arisen. Again, they confirmed that they had received correspondence from the SEC clarifying that Official X did not have authority to issue his letter dated 20th May 2013. They clarified that they withdrew A from the Junior Certificate at School 2 because she had not been granted a reader as opposed to lack of preparation.  They had been expecting A to get a reader because all other Down Syndrome children had received readers before as per their conversation with Official X.  On this point it was put to them that there was no evidence to support this assertion and because certification was undertaken by the schools, this was not something within the SEC’s knowledge.  Regarding the intended broadcast of their interview by a National Broadcaster, Counsel confirmed that there had been no intervention by lawyers on behalf of the Second-named Respondent or the SEC.  Finally, it was put to A’s Parents that A had achieved her two life milestones, one being to sit the Junior Certificate which she had achieved in 2014 passing a number of subjects and the other being to go to college like her peers, which she had done too.

2.52 By way of reply, A’s Parents referred to a screenshot from the SEC website in 2013 which stated the following: “The inclusion of specific learning difficulties appears to be only exemplary. General learning difficulties are not excluded.” They contended that therefore the Scheme would apply to A.  In response, Counsel clarified that the SEC’s position on this point was that this statement meant that someone with a general learning difficulty could also have a specific learning difficulty (SLD). 

Direct Evidence of Ms C, Senior Speech and Language Therapist with a Disability-related Charity

2.53 Ms C outlined her professional qualifications and experience. She confirmed that she is a Senior Speech and Language Therapist working for a Disability-related Charity for the last nine years and had extensive experience of working with people with disabilities for the last thirty years. She has Primary Degrees in Speech and Language Pathology and Therapy and is a member of the Irish Association of Speech and Language Therapists and registered with a body for professionals associated with medicine.  She explained that her training had been in the UK where specific language difficulty is well recognised unlike the position in Ireland.  She explained that there is quite a body of research to support the fact that if you compare students with Down Syndrome to other students with a similar level of intellectual disability, the students with Down Syndrome will have additional speech and language difficulties. 

2.54 Ms C outlined the history of her interactions with A and her Parents leading to her issuing a Report on 7th February 2014. She said that she had been working closely with their Advocate, Ms D at the time to support a number of children in educational settings and would regularly discuss difficult cases. It was in this context that Ms D had mentioned the issue of a specific language difficulty in A’s case and documenting same.  Following discussion, it was felt that it might be helpful to undertake a thorough investigation of A’s language because whilst psychological tests go into language, speech and language assessment delves more deeply into language capacity.  She explained that there is always a certain level of difficulty with assessing a child with a language difficulty in that even for non-verbal tasks there is an element of verbal-oral-language understanding that is required to complete those tasks.  Therefore, any educational psychologists working with people with Down Syndrome with significant language problems will express the fact that these tests are not standardised on this population.  It was in this context that she offered A a language assessment under the remit of her role within the Charity. 

2.55 Over the course of a day, Ms C undertook a fairly thorough language assessment of A, the results of which she noted in her Report of 7th February 2014. She explained that the assessment she used is primarily standardised on typically developing children but reading into the manual there is a small subset of approximately fifty children with intellectual disabilities. If the numbers are crunched around, the expectation of the self-assessment used is that the language scores would be roughly equivalent to the IQ scores.  However, that was not the case with A based upon her assessment and her language scores were considerably lower than would be expected for her IQ.  She then proceeded to go through the individual subtests.  She recalled A as having fairly good attention and concentration and being very cooperative, but she had great difficulty actually completing the assessment as it should have been done on a sixteen-year-old.  She explained that there were some subtests which A could not attempt or if attempted, the language scores would not have reflected her language abilities and gave examples.  Therefore, she felt that these subtests would be invalid because any mistakes might not be due to language classification and concepts but down to auditory memory.  She therefore used subtests that would be used with a younger child.  She confirmed that A performed poorly at a test which entailed repeating sentences that get longer and more complicated as one goes along.  Her score was almost six standard deviations below the mean, compared to three or four standard deviations below the mean on her other psychological assessments.  In two other tests, her mean raw score was more than eight and eleven standard deviations below the mean expected for her age respectively.  Her language scores came out considerably below what would have been expected given her psychological assessment.  Ms C said that it was possible to distinguish between language and intellectual limitations with the use of various psychological assessments.  For example, some of the children in her caseload could have a high non-verbal IQ with a much lower verbal IQ.  Whilst A’s full-scale IQ was confirmed as 44 which she regarded as being on the moderate scale, her language was in the very severe range.  Based upon the gap between what would be expected for her IQ and on the language assessment used for her IQ, she concluded that A had a specific learning difficulty (SLD).  Regarding the role of a reader in an exam context, Ms C said that given A’s significant difficulties with receptive language processing, her clinical experience was that if people are able to read and listen at the same time, then they have a better chance of understanding the concept.  She said that if skills are looked at in isolation, the cognitive load is overlooked.  Additionally, decisions are made based upon standardised assessments that are not designed for the population in question.  She also expressed the view that written language disabilities such as dyslexia are better recognised by the State than a developmental language disorder.  

Questioning of Ms C on behalf of the Second-named Respondent

2.56 Counsel for the Second-named Respondent questioned Ms C about her Report with reference to the RACE criteria and guidelines for 2013. Ms C confirmed that she was not an educational psychologist and that speech and language therapists carry out different functions. She also confirmed that prior to A being withdrawn from the Junior Certificate at School 2 in 2013, she had not been asked to undertake an assessment notwithstanding that the same Disability Charity had been working with A at the time.  She confirmed that the tests undertaken were in relation to A’s language ability and she did not carry out any tests in relation to her reading ability.  Ms C was asked whether she accepted the proposition that the ‘SLD’ which she had identified was different to a SLD for the purposes of RACE.  She said that she was not entirely sure because she understands that specific language difficulties within the realm of written language are accepted and it seemed inconsistent that a written disorder is included whilst a spoken oral language disorder is not included.  When Counsel asked whether she would accept that for the purposes of the RACE Scheme, that a SLD in language is not considered to be a SLD, she stated that this was outside her realm of experience and she had a layman’s familiarity with the RACE Scheme.  She had carried out the assessment with A to support her case and find out whether she had a significant additional disability that could not be explained by her intellectual abilities as opposed to assessing her specifically for the purposes of the RACE Scheme.  Counsel read the following from the RACE guidelines: “The existence of a specific learning difficulty does not automatically entitle a candidate to special arrangements in examinations.  Even though candidates may have a specific difficulty with reading, writing or spelling, they may not require the provision of any special facilities provided they can read the question papers of the required level and write legibly.  Each case is considered on its merits.”  On the basis of this definition, Ms C was asked whether she would accept that a SLD has to arise in the context of reading, writing or spelling.  In response, she questioned the definition of reading being used and whether comprehension should be a factor.  On this point Counsel clarified the SEC’s position that it referred to reading accuracy, writing and spelling and comprehension was not something to be considered within any reasonable accommodation scheme because that is one of the things that is being tested.  Therefore, the provision of accommodation for comprehension would fundamentally undermine the integrity of the examination system.  Whilst accepting that this was the definition of a SLD used by the SEC, Ms C contended that it was inequitable.  She later clarified that if it is accepted that somebody can have an additional disability on top of their general intellectual disability, “…it seems uneven that you would accept that in terms of written language but not in terms of spoken language when they’re two halves of the same coin.”  The SEC has been accepting that one can have dyslexia on top of a general learning difficulty but not a significant language impairment on top of a general learning difficulty or that the latter might have an impact on examination performance.  On this point, Counsel clarified with Ms C that it was not the SEC’s contention that students cannot have a SLD relating to language on top of a general learning disability but rather that the latter does not qualify students for the RACE Scheme.  This predominately relates to the difference between reading accuracy and reading comprehension and the need to maintain an equal playing field amongst students.  Reasonable accommodation is used to ensure this without compensating for an intellectual deficit.

2.57 Counsel put extracts from the RACE guidelines to Ms C including the criteria for identifying a SLD as outlined to A’s Parents above and questioned Ms C as to what tests she had conducted on A. Ms C confirmed that she had not tested A for basic skills in reading and writing and hence could not speak to whether A has a difference in the level of attainment as distinct from her intellectual ability in the context of reading or writing. However, she maintained that children who have difficulties with the comprehension or expression of language would not be able to demonstrate their ability in the context of language and that A had a specific language disability over and above her intellectual ability.  

2.58 Finally, Counsel questioned Ms C regarding her methodology used to calculate A’s scores and the conclusions arrived at in her Report. Ms C confirmed that she was unable to provide an overall language score for A as there was too much variation and as A’s scores were below floor level, it would not have been a standardised score. Regarding her conclusion that “A would require a modified paper and with questions presented in plain English, usually short, clear sentences and straightforward vocabulary.”, she accepted that this was beyond the scope of the RACE Scheme and these complaints.  However, in terms of natural justice, she felt that failing a Home Economics exam because a child does not understand the question but knows how to do the task is very difficult for a child struggling with language.  On this point it was put to her that in the context of establishing a State examination system, there is a requirement for equity to all students and also a need to ensure that the exam system has integrity.  Finally, it was confirmed with Ms C that her Report which post-dated A’s attendance at School 2 was subsequently presented to the SEC by School 3 to confirm her eligibility for a reader based upon a SLD.  However, the Report had not established that A met the criteria for a reader. 

Questioning of Ms C on behalf of the First-named Respondent

2.59 Under questioning by Counsel for the First-named Respondent, Ms C agreed again that speech and language therapists perform different functions from educational psychologists. Whilst she also accepted that generally a diagnosis of learning difficulties would be conducted by an educational psychologist, she is of the view that where difficulties arise in the realm of language, that it is a mistake not to have a more multidisciplinary approach. She confirmed that she had conducted an expressive and perceptive oral language test and there was no element of writing analysis involved.  In this respect, it was put to Ms C that the entirety of this case and the issue of whether A had a SLD was predicated upon the assessment of whether somebody is entitled to assistance of one kind or another for a written exam.  Whilst she agreed that this was the position, she contended that it seemed inconsistent to her that written language and oral language are seen as two completely separate areas when often they are interlinked.  Counsel also questioned her about her methodology and what she meant in her Report that it should be read in conjunction with the Report of the Educational Psychologist obtained by A’s Parents.  Ms C explained her comparative analysis between the results of her assessment and the findings of the Educational Psychologist with regard to A’s IQ scores affirming her view that A had severe additional language difficulties over and above what would be expected for her intellectual functioning.  She also acknowledged that the Educational Psychologist had not diagnosed a specific oral difficulty or a SLD.

Direct Evidence of Ms D, Special Needs Coordinator with a Disability-related Charity & Advocate

2.60 At the outset, it materialised that Ms D had maintained a contemporaneous handwritten record of all of her interactions relating to A’s education, comprising of a document which she referred to as her ‘RACE Diary’. A typed-up version of entries pertaining to these complaints had previously been disclosed. Ms D also confirmed that this document included entries of a sensitive nature which were not directly related to these complaints.  She indicated that she intended to refer to this document with reference to the timeline of her various interactions whilst giving her direct evidence.  As it had not been disclosed to date save from the typed-up version, I heard from all three Parties regarding its relevance and requirement for disclosure in advance of Ms D giving her direct evidence.  I also gave A’s Parents an opportunity to review the document and consider their position.  Ms D indicated that she had no difficulty with disclosing this document and A’s Parents confirmed that they wanted Ms D to give her evidence with reference to same.  Both Counsel for the Respondents submitted that in circumstances where Ms D had used this document in preparation of her evidence, her evidence was predicated upon it and hence their ability to cross-examine effectively would be unfairly curtailed without sight of same.  Additionally, A’s parents had been questioned with reference to the typed-up version.  Both Counsel also objected to any redaction and sought disclosure of the entries extending beyond the Complainant’s dealings with the First-named Respondent particularly as A’s Parents had alleged that the effects of the alleged discrimination and victimisation had extended into A’s time at School 3.  Furthermore, it had initially been submitted that A had not been able to undergo her Junior Certificate as a consequence of the Respondents’ actions and the record had subsequently been corrected to confirm that A had in fact undergone her Junior Certificate in 2014 in School 3.  After considering the Parties’ various positions, I ruled that the entries for the timeline of the events giving rise to these complaints (18th October 2012 until 7th August 2013) should be disclosed to the Respondents strictly for the purposes of this hearing and reserved my position in relation to the balance.  This was granted on the basis of the Respondents’ undertaking that the notes would be treated with the utmost confidentiality and at the conclusion of the hearing, handed back and retained on the original file in the event that they are required for any appeal.

2.61 Ms D outlined her role and her interactions on behalf of A and her Parents in relation to these complaints. She is now retired but at the material time of the events giving rise to these complaints, she was employed as a Special Needs Coordinator with a Disability-related Charity. In that capacity, she had acted as an Advocate for A and her Parents in relation to her educational journey.  She had also offered supports to A’s schools right through from her primary school to the end of her secondary school education.  She had supported the family through the Section 29 appeal in relation to A’s transfer from School 1 to School 2 and subsequent dealings with School 2 for the duration of her attendance there.  She confirmed that during this time she was in constant communication with A’s Parents and also liaised with the schools and external agencies including the Second-named Respondent, NEPS and the SEC.  In this respect, email correspondence between Ms D and A’s Parents was also furnished.

2.62 Ms D confirmed that although A’s Parents had been verbally offered a place for A at School 2 after the initial refusal, Mrs B had instructed her to submit the Section 29 appeal on A’s behalf on the basis that it would be withdrawn once they had formal confirmation. She said that where issues arose between parents and schools, her approach would always be to counsel for communication, negotiation and discussion working with the teachers concerned and she would often mediate in this respect.

2.63 With reference to A’s application for the RACE Scheme and refusal of her application for a reader, Ms D stated that in her extensive experience of forty years of working through various agencies with Down Syndrome children, A was the only Down Syndrome applicant she knew who had been refused. However, she was not privy to the number of applicants or the particular basis upon which a school had signed off on a RACE application form to certify whether a Down Syndrome student had a SLD.

2.64 Ms D outlined her dealings with A’s Parents regarding their differences with School 2 from the outset and confusion as to what year A would be going into, what subjects she would be undertaking and whether and when she would be undertaking the Junior Certificate examinations. She had discussed with Mrs B, their initial meetings with School 2 and dealings with Ms G, Mr F and the SENO regarding their expectations for A as outlined. She recalled that the fact that A could not do Art as an exam subject had caused them anxiety.  Mrs B had also assumed that A would be going into a mainstream class.  However, the place offered was in a special class of four where resource hours are not individually allocated and A’s Parents understood that eventually.  Mrs B also informed her that School 2 were applying for the RACE Scheme on behalf of A.  Regarding the differing views between School 2 and A’s Parents as to whether it was in A’s best interest undergo the Junior Certificate examinations that academic year (2012/2013), Ms D commented that many schools around the country would have suggested that a child with Down Syndrome is not able to do an exam despite what the parents want and hope for their children.  They were not talking about A doing ten subjects or doing them at a higher level but rather doing some subjects at an appropriate level.  Regarding whether it would have been better for A to have waited until the following academic year to sit her Junior Certificate in circumstances where she had started the academic year late with School 2 and the application for RACE was also consequently late, Ms D said that she would have advised A’s Parents of that as an option.

2.65 Ms D then went on to outline her various interactions regarding A’s application for the RACE Scheme in chronological order with reference to her RACE Diary. Following A’s Parents meeting with Ms G, Mr F, the SENO and Dr J, the NEPS Psychologist assigned to School 2 on 19th February 2013, she had noted “polar opposites” with reference to A undergoing the Junior Certificate examinations. She had called School 2 on 7th March 2013 at Mrs B’s request and spoke to Mr F in relation to whether A had a SLD and noted that he said that he “… doesn’t feel he can make decision against advice of the NEPS psychologist, referred app to the State Examinations Commission.”  She said she had placed a question mark next to this note as she had wondered if he had done this yet.  In her view this meant that he could not certify A as having a SLD.  Mr F had also indicated the possibility of Art being available to A as an exam subject the following year.  She subsequently had a telephone conversation with Dr J on 14th March 2013 and he informed her: “The school gave the concerns that they had so that the parents could make informed decisions.  And he said that NEPS had no role in the Junior Cert RACE application.  The accommodations he said were not designed to remediate and he suggested using the appeals process if declined.  That was if the principal refuses to sign to contact the SEC directly and to appeal and he went on to give the details of the website and so on and how to look after that.”  Ms D confirmed that she had been aware that Mr F was refusing to sign off on the RACE forms all along and had communicated this to A’s Parents.  In this respect, she had noted a telephone conversation on 19th March 2013 with Mr F who told her that: “SEC had issued guidelines not to grant RACE which are not justified.  He says that the NEPS advice is that A was not entitled.  He said that they would submit the application, the school would make a judgement, but they would not sign…  He said the parents must fill it in and sign it and return it to the school.  They are applying.  He then said that the school was bending over backwards; that the teachers were very stressed and that the Principal will not stake his reputation on breaking the rules.  He said that the school was proud to have A; that she was happy and settled, but that home was not allowing them to do their job.”  Following the Easter break and at Mrs B’s request, Ms D rang School 2 and left voice messages enquiring about A’s RACE application. 

2.66 Ms D recalled a telephone conversation with Mr F on 8th May 2013 whom she noted was “very abrupt” on this occasion and “He doesn’t understand why I am ringing or bothering him. He has been in touch verbally and in writing with the parents… He said that SEC did seek further info in relation to A and that it has been submitted.  He has some accommodations for other children.  He told me that it was extremely unfair for me to be ringing him.  Again I explained my role as an advocate for A and her family.  And he backed off somewhat when I said that I wouldn’t ring him if he didn’t want me to.  He asked if I was suggesting that he was withholding information.  That would not be a normal conversation with schools.”  With reference to this interaction with Mr F, Ms D clarified that when she rings schools she is usually very polite and professional and does not bother people.  She would only ring as an Advocate for the parents when she felt it was helpful which was her job.  She expressed the view that regardless of any tensions with the parents, a teacher should always remain professional.  [Email correspondence between Ms D and Mrs B mirrored the actions she undertook on their behalf, including an email exchange on 6th March 2013 where Mrs B instructs Ms D to contact Dr J and the SEC regarding A’s RACE application and also asks her to source a suitable psychologist to assess A.]

2.67 Ms D also confirmed her subsequent dealings with the SEC and had noted a telephone call to Official X on 17th May 2013. He had informed her that School 2 had refused to sign off on A’s RACE application forms. He had also said that the information supporting the application was insufficient.  There were no figures on cognitive ability and he needed further information from NEPS.  Ms D said that she was confused herself at that stage and she did not know who was in charge, the SEC or NEPS.  She asked Mrs B for A’s last full educational assessment which she sent to the SEC immediately.  On the same date, she spoke to a NEPS Representative.  Mrs B submitted the last NEPS Report for A dated 4th August 2010.  She spoke to Official X again and he informed her that this Report did not contain enough information to grant accommodation and NEPS would not decide on it without more information.  “He said his hands were tied.  There was a letter gone out to the family, he said, NEPS would not sign off on it because A did not have a specific learning difficulty.  The school must sign off or there must be new information.”  He confirmed that A could have a scribe but would not be granted a reader.  Ms D said that at that stage, there was less than two weeks to obtain an updated assessment before the Junior Certificate examinations.  She had spoken to Mrs B and informed her that another assessment was necessary.  To this end, Ms D contacted a number of educational psychologists and after some discussion, one agreed to assess A on Saturday 25th May 2013 for the purposes of her RACE application.  She noted that on 22nd May 2013, she spoke again to the NEPS Representative about RACE accommodation for A.  He informed her that it was not NEPS’ responsibility and the application must show evidence of a SLD and come from the School.  He had suggested looking at the guidelines as to what was required.  Ms D was aware that that a moderate general intellectual difficulty is not a SLD.  She spoke to Official X once more noting:  “He told me that NEPS couldn’t say that it was the responsibility of the SEC.  He said the school were to blame because they didn’t sign off on the application form; they refused to apply for a reader and a grammar and punctuation waiver.  (He) was quite upset the parents had asked a legal person to contact him and that wasn’t me so I don’t know about that.  He would not deal with this matter anymore he said and he gave me his boss’s number.”

2.68 Ms D recalled receiving a call from Mr B on 21st May 2013 who was very upset by the situation. She noted that she had discussed three choices as being available: “… they could do the assessment on Saturday the 25th, and reapply or appeal; they could go with no assessment and do the exam; or they could postpone the exam to 2014.” Mr B’s main question was whether School 2 would sign off on the RACE applications.  He also added a fourth choice which was to bring the media in and A’s Parents were to discuss this with the CEO of the Disability-related Charity.  Mr B rang Ms D back on 23rd May 2013 and again he was upset.  He informed her that they had decided not to proceed with the assessment and she would undergo the exams without a reader.  They felt that it was too close to the exams and would impose extra stress upon A.  As it turned out she became unwell with a thyroid issue.  Accordingly, Ms D cancelled the assessment that had been arranged for A.  She also called the NEPS Psychologist who had undertaken the 2010 assessment with A to discuss the situation.  The Psychologist was helpful and had suggested applying for a special examination centre which had in fact already been granted but A’s Parents were unaware of this owing to communication with the School not being great.  On 26th May 2013, she noted that a letter of appeal had been sent to SEC.  On 28th May 2013, Ms D noted various phone calls and confirmation that the SEC would meet on Friday 31st May 2013 to make a decision.  On 30th May 2013, she received a call from Mrs B stating that she was thinking of moving A to another school owing to her general frustration and disappointment with the way things had worked out in School 2 and would be in contact about it the following Tuesday.  She had also wanted to know about publicity.  Ms D had advised her that she was not really in favour of publicity as it can have an adverse effect on future placements.  In her experience, families resorted to the media owing to frustration when many things had failed.  On occasion, the Disability-related Charity had also resorted to the media and in the instant case, it had liaised with a Media Group to assist with giving the details and naming School 2 for the article which was published and the TV interview which was not broadcast.

2.69 Ms D confirmed that she assisted with the drafting of a letter dated 30th May 2013 to the Board of Management of School 2 from the Disability-related Charity which she co-signed with the CEO in relation to A’s application for RACE and was copied to a number of third parties. [The letter stated: “(A’s Parents) looked for our support in applying for RACE accommodation for their daughter A, for the Junior Certificate Examination, 2013. In our experience… these accommodations are always granted by the State Examinations Commission on foot of an application by the child’s school.  Unfortunately, A’s family were not supported in their application by their school Principal, Mr F.  He refused to sign off on the application form.  This Disability-related Charity through Ms D contacted Mr F on a number of occasions, yet he still refused to sign the application.  It was pointed out to him that accommodations were granted to children, in many different countries, who have a Moderate Intellectual disability as A has.  Contact was made with the SENO, with NEPS and with the State Examinations Commission.  All were of the opinion that the lack of cooperation by Mr F was delaying the granting of accommodations…  It is extremely unfortunate that granting of approval for A has gone to this late stage and the family is still unaware of what accommodations she will be granted.  They are unable to prepare her for that aspect of her examination as they don’t know what the reality will be.  We regret very much that this situation was allowed to continue despite many requests for a resolution.”]

2.70 Ms D noted that on 31st May 2013, they were informed that A would not be granted a reader. On 4th June 2013, Ms D received a call from Mrs B confirming that A would not be undertaking the Junior Certificate examinations which she communicated to School 2. Mrs B had expressed the view that “nobody wants A” as she was too young for third level and an alternative programme for people with Down Syndrome required participants to be 18.  Whilst acknowledging that the role of a reader at the material time was to access words on a script as opposed making up for a deficit caused by intellectual disability, Ms D was also of the view that it was very important for a child with Down Syndrome to have a reader “…irrespective of any figures that might be assigned to them in the different tests…  Reading for a child who is doing an exam is a lot more than just reading a piece.  They can pick up the piece and read it but sometimes it doesn’t make sense or they miss an inflection or they miss a comma or they miss something and they just don’t have that understanding.  And if the child doesn’t read the question or read the text properly, then the answer is going to be very, very different to what it maybe could be or should be.”  Regarding A’s Parents expectations for A undertaking her Junior Certificate, she said that they just wanted A to have the opportunity to do examinations to the best of her ability like any other child.  Ms D was of the view that undergoing the Junior Certificate at School 3 without a reader would have made it more difficult and a reader would have given her a better experience overall. 

2.71 Thereafter, Ms D confirmed that she received a call from Mrs B on 18th June 2013 about the proposed meeting with School 2, questioning whether they should attend in circumstances where they were planning to send A to a new school in September 2013. Mrs B also furnished details of a new school to contact on their behalf. Finally, Ms D confirmed that in her extensive experience, the level of A’s difficulties within all three secondary schools attended was not typical of her experience of families of Down Syndrome children within the education system.  This case was very different and the level of acrimony between A’s Parents and School 2 was significant as evidenced by the volume of her notes. 

2.72 Finally, Ms D outlined her dealings with School 3 on behalf of A and her Parents. She had noted that an application for a reader was one of the first things that was discussed at the first parent-teacher meeting. She noted other meetings with School 3 in December 2013 where A’s mock exams and application for a reader were discussed.  A number of updated assessments already outlined were submitted for the purposes of an application.  Ms D confirmed that she had advised A’s Parents to apply for a reader to undergo the Junior Certificate in School 3.  On 30th January 2014, Mrs B had asked about A doing full days at School 3 and enrolling in a transition year programme for 2014/2015 with a view to undertaking the Leaving Certificate Applied.  She had also received an IEP without any parental involvement.  On 4th February 2014, the aforementioned Psychologists prepared a joint submission to the SEC on behalf of A.  There was a meeting with School 3 around 11th or 12th March 2014 regarding subject choices including CSPE, Home Economics and Maths.  Ms D had notes about other interactions but could not speak as to why ultimately a decision had been made not to apply for a reader for A. 

Questioning of Ms D on behalf of the First-named Respondent

2.73 Counsel on behalf of the First-named Respondent (School 2) questioned Ms D about her interactions on behalf of A and her Parents with reference to her RACE Diary and correspondence. Ms D confirmed that she had typed up her contemporaneous handwritten notes when the application for a reader on behalf of A was refused as she had a “gut feeling” that they may be required again.

2.74 Counsel confirmed that Ms D acknowledged that the notes were a correct reflection of her interactions with Mr F and with regard to their latter conversation on 8th May 2013, it was agreed that Mr F was tetchy as he had just returned to work following heart surgery. Ms D was questioned about her experience of the RACE Scheme. Ms D confirmed again that based upon her extensive experience, she had never encountered a case before where an application for a reader had been refused.  However, she accepted that she did not have an extensive, detailed knowledge of the RACE guidelines at the time that the application for RACE on behalf of A was made but came to know them better as A’s case developed following refusal of a reader.  Counsel opened an email from A’s Parents to Ms D on 1st November 2012 as cited above as to their expectations at the time, being that A would get into School 2 and do her Junior Certificate in 2014 as part of a two-year programme starting in second year as opposed to undertaking the exams in 2013.  Ms D agreed that is what A’s Parents had written to her at the time.  She also accepted that at the meeting between A’s Parents and School 2 on 29th November 2012, it was agreed that there would be a settling-in period before any decision was made regarding undertaking the Junior Certificate.  Ms D was questioned regarding her involvement in assisting A’s Parents with the Section 29 appeal in respect of School 2’s initial refusal to accept her transfer despite confirmation of a place.  Thereafter, there was a gap of some three months in her communications. 

2.75 Ms D was asked to explain various entries in her RACE Diary in March 2013. She confirmed that “Query psychologist, no reply x 2” on 5th March 2013 along with her direct evidence that A’s Parents had been thinking ahead “…obviously had to do with accommodations for the exam because NEPS is also mentioned there.” This was supported with an entry from 6th March 2013 noting that she had obtained details for a SENO whom she had contacted and noted: “Suggested asking for a meeting with NEPS and asking that he sign off on accommodations. Dr J.”  Ms D has also noted: “In early March the parents became aware that the school expected NEPS to sign off on the RACE application.  Principal felt he couldn’t make a decision against advice of NEPS Psychologist and he referred application to SEC.”  As per her notes, Ms D agreed that as of early March 2013, A’s Parents had been aware that School 2 was not willing to approve of the SLD accommodations, either because of the advice or information received from NEPS.  She was asked about other entries including the following from 7th March 2013 to suggest that at that stage, Mr F felt that he could not sign off on the application: “School are applying for accommodation but NEPS have to sign off.  A doesn’t like going to school.  Why not?  Email as NEPS do not need to sign off.  School can certify level of need.  Call to Principal, Mr F.  Doesn’t feel he can make a decision against the advice or NEPS Psychologist.”  It was put to Ms D that this was Mr F saying that he could not sign off on the form contradicting the NEPS assessment that A did not have a SLD.  Whilst she could not recall the specifics of that conversation, she did recall Mr F telling her that he was referring the application to the SEC.  Ms D said that from memory, a note of a follow-up call to the SENO on 14th March 2013: “Just unable to help.” meant that it was not the SENO’s place to get involved but she had suggested calling NEPS Head Office.  Ms D’s notes further confirmed that she had spoken to Dr J, NEPS Psychologist and noted: “Asked if he could sign off.  He said no, it was up to school to certify the level of need.  Continue with the application if unsuccessful.”  In this respect, it was put to Ms D that NEPS could not sign off on the RACE form as it was for the School to certify the level of need and Mr F was not in a position to certify A as having a SLD.

2.76 Ms D was also questioned about her understanding of the role of accommodation under the RACE Scheme. She agreed that it was not designed to improve performance or make up for intellectual or comprehension deficits but rather to make exams more accessible. She confirmed that Dr J had referred her to the requirement for a specific learning difficulty (SLD) and had explained what that entailed.  Ms D also accepted that at this stage, A had not been diagnosed with a SLD.  She was referred to an internal letter from Dr J dated 14th March 2013 summarising his conversation with Ms D as follows: “Telephone conversation… acting on behalf of A and wanted to inquire about the application for a reader and accommodation for A.  I recommended that she consult the State SEC guidelines available to download.  I explained that for the purposes of RACE there must be evidence of a specific learning difficulty in order for a candidate to qualify for accommodations.  I further explained that the school administers the RACE scheme for the Junior Cert in line with the criteria they found on the SEC.  I advised Ms D to discuss this further with Mr F and Ms D inquired about the appeals process for it.”  It was put to Ms D that Dr J’s account accorded with her note and she accepted that it did.  Ms D also agreed that accordingly, in a situation where there was no evidence that a student has a SLD, then as per the RACE guidelines, they are not entitled to that accommodation.  Counsel referred to Ms D’s Diary entry of 19th March 2013 regarding a further telephone conversation with Mr F.  She accepted that as per her note cited in her direct evidence, Mr F had confirmed to her that the NEPS advice was that A was not entitled to a reader under the RACE Scheme as she did not have a SLD and that he is not willing to break the RACE guidelines and stake his reputation by certifying that A qualified by signing the forms.  Ms D was also referred to the RACE application form on grounds of a SLD and accepted that by signing the form, a school is confirming that a student has a SLD within the meaning of the Scheme. 

2.77 Ms D was referred to the letters of complaint from A’s Parents and the Disability-related Charity (in respect of whom she worked for) to the Board of Management and had assisted with drafting. She was questioned about the use of the terminology throughout to the effect that School 2 and Mr F had refused to cooperate and help A by signing the RACE form. She said that this response had been in the context of never having had experience of any family or school where the accommodations sought were not signed off.  Ms D was referred to the RACE form and the heading: “Authorisation” followed by “I certify that the candidate above has a specific learning difficulty and I wish to apply on behalf of this candidate for the proposed arrangements.”  She agreed that this meant that by signing the form, the Principal is certifying that the student has a SLD and in order to honestly do so, there must be evidence of a SLD.  Ms D also accepted that all of the assessment reports and evidence to hand indicated that A did not have a SLD and Mr F could not have signed off on the form without confirmation of a SLD.  When asked why she had been requiring Mr F to sign the form at the time when all the evidence was that A did not have a SLD, she maintained that she had not been the one asking him to sign off on the form but had been advocating for A’s family and in her experience, the Down Syndrome children of every other family she had dealt with had received the accommodations sought.  When pressed on whether this was reasonable she replied: “I wouldn’t ask Mr F to certify something that wasn’t true.”  Ms D also accepted that between all her interactions she had been given a detailed explanation as to why Mr F was unable to sign off on the form and it was not a case of a simple refusal to sign off.

2.78 Counsel also questioned Ms D regarding A’s Parents’ state of knowledge as to School 2’s position and that Mr F was not signing off on the RACE application form/s for A in the absence of evidence of a SLD. On this point, it was put to Ms D that A’s Parents had maintained the position throughout including in written submissions, direct evidence and under questioning, that they were unaware of this until mid-May 2013 when it came as a complete shock. Ms D conceded that Mr F had made her aware of the School’s position as per her note of 7th March 2013 that he could not sign off against NEPS advice and also during their telephone conversation on 19th March 2013.  Ms D said that she would have communicated this to A’s Parents.  She conceded that it was therefore untrue that this had come ‘as a bolt from the blue’ to A’s Parents.  Whilst accepting that the School had made it abundantly clear that it was not signing off on the form/s and informed her as to the reason she “…didn’t feel that the avenue of communication was closed” and had remained hopeful that the accommodations sought would still be granted.  She was also aware that the School had forwarded the unsigned forms to the SEC for its consideration.  Regarding her reference to “no accommodations” throughout, Ms D agreed that the only accommodation not granted was a reader as a spelling and grammar waiver was included with a scribe.

2.79 Ms D confirmed that she had assisted with drafting the letter of complaint of 30th May 2013 on behalf of A’s Parents to the Board of Management for School 2, being Mr F’s employer and copied to a number of third parties as outlined above. She confirmed that she signed the letter jointly with the CEO of the Disability-related Charity who had approved of the draft. She did not recall producing her notes at the time to the CEO but agreed that the letter was based upon her various interactions as set out in her ‘RACE Diary’.  The contents of the letter were put to her with reference to the agreed factual position as already outlined.  The letter had stated: “A’s Parents looked for support for RACE accommodations in relation to their daughter, A, for the Junior Cert.  In our experience, these are always granted by the SEC upon application by the child’s school.”  When asked what she meant by this, Ms D said that she was simply stating that in the Disability-related Charity’s experience, the accommodations sought had always been granted by SEC on foot of an application by the child’s school.  The letter went on: “Unfortunately A’s family were not supported in their application by Mr F, the Principal.  He refused to sign off on the form.”  It was put to Ms D that this was a grossly unfair way to characterise her interactions with Mr F and the way he had dealt with A’s RACE application.  Ms D said that was how she felt and she did not regard the contents of the letter to be grossly unfair at the time, although they might be in retrospect.  She had formed the view that Mr F had not been very communicative and she had also been influenced by her interactions with Official X in the SEC and his use of the word ‘blame’ with reference to Mr F.  She accepted that the letter omitted to set out the full factual position including the fact that Mr F had informed her that he was bound by the RACE guidelines which required there to be a SLD; that the guidelines required Mr F to certify that there is a SLD by signing the form; that Mr F said he could not sign off because he did not want to risk his reputation by breaking the rules in the knowledge that the Department of Education and Skills does not want RACE accommodations granted where they are not justified; or that the matter had been referred to the SEC and that all accommodations sought had been granted except for a reader.  It was also suggested that in light of the actual factual position, the following sentence was also fundamentally untrue. “Contact was made with the SENO, with NEPS and with the State Examinations Commission.  All were of the opinion that the lack of cooperation by Mr F was delaying the granting of the accommodations.”  Finally, it was also put to Ms D that the letter gave an inaccurate impression that no accommodations had been granted to A and her Parents were unaware of what had been granted when in fact there had been confirmation that all of the accommodations sought other than a reader had been granted at that stage.  Overall, Ms D stood over the letter, her professionalism and the appropriateness of sending it to the third parties including Mr F’s employer.  Nothing new arose from re-examination of Ms D by A’s Parents in relation to various dates and details.

Questioning of Ms D on behalf of the Second-named Respondent

2.80 Counsel for the Second-named Respondent questioned Ms D about her role and her interactions with A’s Parents in the context of these complaints. She agreed that in exercising her professional role in guiding children with Down Syndrome through the education system one should have familiarity with schemes being operated by the Department of Education and Skills. Apart from a personal experience, she had never been involved in a RACE application previously or could cite a case whereby a child with Down Syndrome not diagnosed with a SLD was granted a reader.  Although she might not agree with it and/or would debate it, Ms D also accepted a number of propositions put to her on behalf of the Second-named Respondent including that such schemes seek to accommodate students with a range of different disabilities whilst also trying to ensure that those who do not have a disability are not unfairly disadvantaged; that such schemes have to be operated on the basis of eligibility criteria and that someone who does not meet the eligibility criteria should not be given the benefit of that scheme.  

2.81 With reference to A’s application for the RACE Scheme, Ms D said that she had familiarised herself with the guidelines for the Junior Certificate as required and was aware that where a SLD was a requirement, this had to be diagnosed by an Educational Psychologist. She confirmed that as of March 2013, she was aware of the requirement for the existence of a SLD for the grant of a reader, having discussed A’s application for RACE with Mr F, the SENO and Dr J and had communicated this to A’s Parents. It was for this reason that they had worked towards getting another assessment.  Whilst she was not directly involved, she had also been aware that A’s Parents had organised a number of assessments and had cancelled them for various reasons.  During telephone conversations with Official X in the SEC on 17th and 21st May 2013, he had made her aware that the information contained in the last NEPS Report was insufficient for the purposes of granting a reader and/or any appeal.  On foot of this, she confirmed that she arranged an assessment for A on 25th May 2013 and cancelled it on 23rd May 2013 based on A’s Parents’ instruction that she would undertake the Junior Certificate without a reader. 

2.82 Finally, Counsel also questioned Ms D about the various allegations made in the letter of complaint against Mr F to the Board of Management for School 2 which she had assisted with drafting. She conceded that there was no evidence including from her conversation with the NEPS Psychologist to support the allegation that it was Mr F’s lack of cooperation that had delayed the granting of accommodation to A. She confirmed that she was aware that the RACE application had not been made until March 2013, months past the closing date, and that most of the accommodations sought had been granted at that stage.  She also accepted that the application had been dealt with quickly in the context of a late application.  Whilst she accepted that A was not eligible for the RACE Scheme under the guidelines pertaining in 2013, she still felt that A should have been granted a reader owing to an imbalance when compared to other children with Down Syndrome.  Finally, Counsel questioned Ms D about her view of the role of a reader.  Nothing new arose from re-examination of Ms D by A’s Parents.

Direct Evidence of Ms E, Family Friend to the Complainant and her Parents

2.83 Ms E confirmed that she was a family friend and had attended a meeting with Mrs B at School 2 on 2nd October 2012 to discuss A’s transfer from School 1. Ms G had showed them around to some of the rooms where the special needs students were studying and discussed the School and SEN Unit. She recalled a discussion around A undertaking the Junior Certificate there and what subjects she would undertake including Home Economics, Art and CSPE.  A modified Junior Certificate involving continuous assessment was also discussed.  She recalled reference to the special needs’ students joining in with the mainstream classes and not being segregated and of the meeting being very positive.  She had understood that A would be transferring from her Junior Certificate year in School 1 to the Junior Certificate year in School 2.  There was no mention of any difficulty with A undertaking Art as an exam.  Ms E accepted that it was just an exploratory meeting and no commitments had been given.  However, there seemed to be no issue with A’s transfer and sometime after Halloween was mentioned.

Questioning of Ms E on behalf of the First-named Respondent, School 2

2.84 Counsel for School 2 put its position to Ms E and specifically Ms G’s recollection of what had been discussed at their initial meeting on 2nd October 2012, contending that it would be similar. However, Ms G was showing them a range of options available at School 2 and within the SEN Unit without any specific commitment towards A. Ms E reiterated that the meeting had been very positive and there was no indication that Mrs B’s expectations for A could not be met by School 2 or that there would be any issues with the transfer, undertaking the Junior Certificate examinations or any of the subjects discussed. 

3. SUMMARY OF THE FIRST-NAMED RESPONDENT’S EVIDENCE

Direct Evidence of Mr F, Former Principal for the First-named Respondent (School 2)

3.1 Mr F confirmed that he was the Principal of School 2 at the material time of the events giving rise to these complaints. He had been a Principal there since September 2002 and retired in August 2014.  At the time of the hearing, he worked on a consultative basis for an Educational Body.  In addition to providing mainstream education, School 2 had a Special Educational Needs (SEN) Unit which catered for the individual needs of students on a case by case basis.  Some students would be confined to the Unit for classes but part of the wider school community for breaks and would generally not undergo State examinations.  Others moved between mainstream classes depending upon their academic ability and social skills.  Mr F further confirmed that during his time in School 2, there were other students with Down Syndrome, only two of whom went through the entire system and one who undertook public exams in 2004 utilising the RACE Scheme which would have operated differently at the time.

3.2 Mr F confirmed that the enrolment process for entry into first year was a totally separate process from a transfer from another school. Whether an application to transfer was into mainstream or the SEN Unit, it followed the same procedure including an exploratory meeting with the parents and student and contact with the principal of the school they were leaving.  Transfer to the SEN Unit entailed an exploratory meeting with the Special Educational Needs (SEN) Coordinator, Ms G, where information was exchanged and the various possibilities which may be available to a student within the Unit outlined.  “None of that would be a commitment because obviously until we got to know the child and had assessed the child over a period of time we wouldn’t know what we would have felt was educationally best for the child.”  The next stage was for Mr F to meet the student and their parents to discuss the pluses and minuses of a transfer as there would be different criteria involved.  He explained that transferring within an exam year is totally different to transferring within the other years as there would be concerns around the coursework, teachers being different and time required to adapt.  In relation to the instant case, he said that A had missed the induction process and resources within the SEN Unit had already been allocated and “We had an intake of seven new students in September and to move in an exam year into a different town which involved transport, I just felt it was an awful lot for a child to have to take on.”  He confirmed that whilst the responsibility for deciding on a transfer was delegated to him by the Board of Management, the Board had the ultimate responsibility for making a decision to refuse a transfer.

3.3 Mr F recalled meeting A’s Parents for the first time on 16th October 2012 regarding her transfer from School 1. He agreed that he had said to them that he would not be recommending A’s transfer in the middle of the academic year as it was not in her best interests.  However, he denied that he had said words to the effect that they could appeal his decision and the Board of Management always did what he told them.  Whilst he was not a member of the Board of Management, he held the position of Secretary so would not have said something that was factually incorrect.  Besides the Board was comprised of very capable people including a nun who had been a principal for many years, a solicitor, a bank manager and a sergeant and not the kind of people who would be told what to do.  Mr F referred to the letter from the Board of Management to A’s Parents setting out their view that it was not in A’s interests to transfer mid-year but offering a place for the following year and confirming their entitlement and the procedure to bring a Section 29 appeal to the Department of Education.  He denied that he had told A’s Parents that he had never had a Section 29 appeal and did not want to be the first principal to have one as they had contended in their direct evidence.  He said that such appeals were commonplace and School 2 had previously dealt with a Section 29 appeal against expulsion.  He referred to the letter dated 18th November 2012 from A’s Parents confirming that they were appealing and asking the Board to reconsider its position as cited above.  The initial decision to refuse A’s transfer had not been taken lightly but when he received this letter containing phrases such as “educational struggles” and “A has become more isolated”, he decided to ring the Principal for School 1.  They had spoken previously and had shared similar views about the timing of the transfer being wrong but not the transfer itself.  Mr F learned that A’s attendance at School 1 had become very irregular and relations had broken down with A’s Parents.  The word “isolated” had really concerned him so he contacted the Chairperson of the Board of Management and read out the letter to her and a meeting was convened for the following week on 26th November 2012.  At that stage, they were also in a position to review the allocation of resources with a view to accommodating A.  Before this letter was received and appeal submitted, A’s Parents had emailed Mr F seeking clarification of their application for a place for A at the School for the following academic year as outlined above.  Rather than keeping them waiting, he rang them on 21st October 2012 and told them whilst he could not pre-empt the Board’s decision, he was optimistic that there would be a positive outcome at that stage.  He did not recall discussing the Section 29 appeal with the Chairperson.  He accepted that it was fair enough for A’s Parents to maintain their appeal pending formal confirmation.  He maintained that the existence of the Section 29 appeal was totally irrelevant to this decision and denied that his subsequent dealings with A’s Parents including his refusal to sign-off on the RACE application forms were something of a personal vendetta in response to their Section 29 appeal. 

3.4 Mr F recalled his meeting with A’s Parents on 29th November 2012 and as per Ms G’s and Mrs B’s attendance notes cited above, their agreement to a settling-in and observation period at School 2 before any commitment to A undertaking her Junior Certificate examinations could be made. When he had expressed his concerns to A’s Parents regarding transfer during an exam year, they had reassured him at the time that exams were not a factor.  There had been no issue with A following the Junior Certificate programme regardless of whether she did the examinations as was the case with many of their students.  

3.5 However, on 8th January 2013, the day after A started attending School 2, there was a shift in her Parents’ expectations when Mrs B started talking about A undertaking the Junior Certificate examinations that year. Mr F said that this came as a total surprise to him given what had previously been agreed.  He recalled his meetings with Mrs B on 8th and 9th January 2013 with reference to Ms G’s notes including: “Mrs Bexpressed her desire for A to be in an exam class.  It was reiterated that A would be in a period of transition and observation to establish her strengths and needs with no commitment to exams, as agreed on the 29th Nov.  The flexibility and structure of the SEN classes was explained to Mrs B to eliminate her confusion about 1L being a 1st Year class.  A clear explanation established the purpose of the classes reflect the students’ individual needs, rather than the group.  I agreed to pursue paperwork from School 1.”  Mr F said that he was also aware that Ms G had raised the issue of A’s eligibility for the RACE Scheme based upon a SLD with A’s Parents noting on 8th January 2013: “I expressed to Mr F that I felt A would not be eligible for RACE, as she did not have a SLD.  On the basis of her psychological report, I could not find any significant discrepancies according to SEC guidelines, to suggest the need for accommodations.  I stated A would not be eligible for RACE, as she has a Moderate General Learning Difficulty.”  A’s Parents also insisted that she underwent the mock exams held in the first few weeks of February 2013.  The School agreed to accommodate this under exam conditions as confirmed in his letter to A’s Parents dated 16th January 2013.  At this stage, A had only started with School 2 on 7th January 2013 and it was already months after the closing date for RACE so the first thing to establish was whether an application had been made.  Mr F contacted the SEC to confirm whether a RACE application had been submitted for A and obtained confirmation that no application for RACE had been made (by School 1).  He also confirmed this in his letter of 16th January 2013 to A’s Parents as follows: “I have contacted the State Examinations Commission and they have informed me that no RACE Application was received for A.  I have referred this to Dr J who will assess A’s eligibility.  I am enclosing forms which you may wish to complete.”  Contrary to what had been contended by A’s Parents, he said that the reference to “A’s eligibility” was for the RACE Scheme.

3.6 Mr F referred to a letter dated 28th January 2013 from A’s Parents as cited above which accompanied the RACE Forms signed by them stating: “We signed the RACE form.” Amongst other matters, it also stated: “We understand that there is more time for (School 2) to make an assessment of A as required, thank you for the explanation of the processes of the school, we’re in agreement that she will sign up to doing the pre-junior cert exams and this will be a barometer of her ability going forward.”  He confirmed that was a reference to agreement to A undertaking the mock exams under exam conditions. 

3.7 Mr F confirmed that after these early meetings with Mrs B, he had discussed A’s eligibility for RACE with Ms G who repeated that based upon all of the information before them, there was no evidence that A had a SLD. Whilst it was not NEPS’ role to assess eligibility for RACE based upon a SLD, for the purposes of the School’s assessment, he had asked Ms G to contact Dr J to verify the contents of the last NEPS Psychological Report for A dated 4th August 2010.  Dr J had confirmed that A did not have a SLD and based upon this information, Ms G had expressed the view that A would not be eligible for RACE.  It would have been common practice for the School not to apply for accommodation where it was felt that there was no eligibility.  However, Mr F knew how anxious A’s Parents were and contacted the SEC for guidance as to the best way to proceed from there.  He explained the situation to a Representative who was extremely helpful.  Mr F had explained that he could not sign the form certifying A’s eligibility on grounds of a SLD as he did not believe A to have a SLD.  This was based upon the NEPS Report as discussed with Dr J and Ms G’s assessment based upon her vast experience and knowledge.  The Representative had told him not to worry and to “send everything in unsigned” and the SEC would assess the application as was the practice when such issues arose.  Accordingly, he submitted the unsigned forms with the accompanying note to the SEC on 13th February 2013: “After a consultation with the NEPS Psychologist, Dr J the school did not make an application for RACE on behalf of A.  As advised by Dr J, A, in his opinion, does not meet the requirements specified to be eligible for RACE.  A has been diagnosed with a moderate general learning difficulty, with no significant discrepancies.  As requested by A’s Parents, I am forwarding on an application.”  As to why he had not signed off on the RACE application form on grounds of physical difficulty/ies, he had been happy with the SEC Representative’s willingness to help and had sent on both forms unsigned at his request.  

3.8 Although there had been a miscommunication with A’s Parents regarding the attendance of Dr J, ultimately a meeting with A’s Parents, Ms G, Mr F and Dr J primarily to discuss her IEP went ahead on 19th February 2013. However, A’s Parents had diverted discussion to A sitting the Junior Certificate examinations in 2013.  There were opposing views between A’s Parents and the School regarding what was in A’s best interests in terms of undertaking the examinations as reflected in the attendance notes.  Mr F and Ms G had expressed concerns about the impact of putting A under the stress and trauma involved for no reason when she could sit the Junior Certificate in 2014 and their advice had been not to sit any examinations in 2013.  A’s Parents had outlined their reasons as to why they wanted her to sit the exams in 2013 as a rite of passage even if she failed, they were the parents and as far as the School was concerned it was their decision.  The School had accepted that it was their choice and agreed to allowing A to do her Junior Certificate examinations in 2013.  Mr F also recalled Mrs B’s exchange with Dr J as to whether another assessment was required for A and he had expressed his view that another assessment was unnecessary.  As per Dr J’s memo, this was because all the indications from the School and the Parents were that there had been no change of circumstances since the NEPS assessment and Report of 4th August 2010 to merit another assessment for A.  Mr F recalled that A’s Parents had raised this in the context of A’s entry to the SEN class because a psychological assessment of two years or less is required and A’s most recent assessment had been undertaken just over two years previously.  He did not recall any discussion as to whether an updated NEPS assessment was required to confirm whether A had a SLD or not for the purposes of availing of the RACE Scheme for the Junior Certificate examinations.  

3.9 The RACE application forms were returned to School 2 by the SEC on 4th March 2013 with the words “no accommodations ticked, form not signed” handwritten on his accompanying note. As Mr F had been out sick on that particular day, Ms G had received them and had contacted the SEC who advised her to resubmit them signed by the Parents and the boxes for the accommodations sought ticked.  Ms G had informed him of the situation on his return on 6th March 2013 so they sent the forms home with A.  He also emailed and wrote to A’s Parents confirming that they were sending the forms home with A and asking that they be returned to the School by Monday 11th March 2013 as he had wanted to send them back to the SEC as quickly as possible.  They were returned signed but the accommodations being sought had not been ticked on the forms.  Ms G then brought them along to the parent-teacher meeting on 13th March 2013.  Although it was for the fifth years, A’s Parents had been invited along as they had missed the third-year meeting held in October 2012 when A had not been at the School.  Mr F had facilitated this by getting agreement from all the teachers concerned to meet them.  Mr F disagreed with A’s Parents account of what had occurred at this meeting and in particular, that he had been unhelpful and intimidating.  He recalled Ms G discussing the forms with A’s Parents.  As Ms G had completed the top of the forms much earlier and they had been signed by A and her father, all that remained was to select the accommodations to be applied for which involved ticking the corresponding boxes.  Ms G had explained what was required to A’s Parents.  There was no question of School 2 signing off as it had already been established at that stage that it was not certifying A’s eligibility based on a SLD.  In this respect, Mr F was of the view that A’s Parents had been unhappy at the meeting not because he had refused to assist or give them guidance but rather because he had refused to sign the form certifying that A had a SLD.  The only guidance they could give them was to tell them that there were a number of accommodations listed on the form and they should tick which ever ones they wanted.  A’s Parents took the forms home with them to seek advice.  Once they submitted the completed forms to the School on 15th March 2013 they were immediately faxed off to the SEC.  Mr F also recalled his telephone conversations with Ms D on 8th and 19th March 2013 confirming to her that he was not prepared to stake his reputation by breaking the rules and sign off on the form certifying that A had a SLD as required for RACE based upon the evidence as already outlined.  He confirmed that Ms D’s notes broadly tallied with his recollection of events.  He accepted that he had been tetchy during their last phone call on 5th May 2013 as he had been out for three weeks having surgery, it was his first day back and he had a lot of stuff on his desk to contend with.  He reiterated his view that both the School and the SEC had bent over backwards to do their very best for A.  He also recalled that Ms G had been in contact with the SEC on various occasions and had responded very quickly to a request for samples of A’s work in April 2013. 

3.10 Mr F confirmed that the SEC had considered both unsigned forms on their merits and issued a letter dated 22nd May 2013 confirming the grant of all of the physical accommodations comprising of a scribe (including a spelling and grammar waiver in language subjects), a helper and a special centre. A letter dated 24th May 2013 confirmed that A’s application for a reader and spelling and grammar waiver had not been granted.  Mr F was unaware of the contact between A’s Parents and Official X at the time.  He had a number of telephone conversations with A’s Parents around this time.  During the first phonecall, Mr B was very angry having just received the letter of 20th May 2013 from Official X criticising Mr F’s handling of the matter.  He had said that he did not know anything about it, he did not understand it, it was not accurate and “I would be very annoyed if I thought that a letter like that had issued blaming me for something I wasn’t responsible for.”  Mr F said he rang the SEC directly afterwards and spoke to a Superior to Official X in the RACE Section and outlined his conversation with Mr B and history to A’s RACE application including his conversation with the Representative who had told him to send in the forms unsigned.  She had told him that there was no copy of the letter from Official X on file.  Mr F asked her whether he had done anything wrong or not done something he should have done.  She reassured him that he had followed the RACE Scheme guidelines and that was all that he was expected to do.  Mr F asked the Superior whether she would explain this to Mr B and she said she would do so when he was due to ring back in the afternoon.  When they spoke again later that day she said that she could not locate the letter from Official X.  She had also spoken to Mr B and tried to explain the situation to him but he was still very angry and not in the mood for listening.  After receipt of the second letter refusing the accommodations on grounds of a SLD, Mr F recalled ringing A’s Parents to inform them and again they were very angry.  He also asked them to come into the School to meet him and discuss the matter.  He informed them about the appeals mechanism and said that the School could facilitate an appeal on their behalf.  He submitted an appeal on behalf of A’s Parents on 27th May 2013 stating: “On behalf of (Mr & Mrs B) I wish to appeal the decision of the State Exams Commissions not to grant access to a Reader and not to grant a waiver from the assessment of spelling/grammar/punctuation to A.”, the result of which came back on 31st May 2013 declining the SLD accommodations sought for A. 

3.11 Mr F said he was absolutely stunned to receive the letter of complaint dated 29th May 2013 from A’s Parents directly to the Board of Management which the Board had passed onto him. “Because what I had done, working with the State Exams Commission, was to try and do the very best we could for A and to receive a letter like that to my employer, which is a Board of Management consisting of people on a professional level I had great regard for, also to have that letter circulated to the trustees of the school, to a national organisation like (the Disability-related Charity), to the Minister for Education, after 35 years working in education, was devastating to be honest with you.” In his experience, the first step in relation to bringing a complaint is to bring it to the attention of the person one is complaining about.  It would not be normal practice to involve the Board or Minister for Education in the first step of a complaints process.  He had not been made aware of the complaint in the first instance, he had no forewarning and hence did not have the opportunity to discuss the subject-matter of the complaint with A’s Parents beforehand.  He said that the Chairperson of the Board had also been shocked by the letter and they sought advice from Solicitors for the School.  An Advisor to the Board had contacted a Senior Manager of the SEC, Ms H, about the situation and she had said that she was willing to speak to Mr F.  The Advisor had passed on her contact number to Mr F.  Mr F rang Ms H explaining to her what had happened and expressing his shock at the letter issued by Official X on behalf of the SEC.  He asked again whether he had done anything wrong.  Ms H listened very carefully and said that she would revert.  Accordingly, another Manager within the SEC issued a lengthy letter on 4th June 2013 to A’s Parents clarifying the contents of the letter of 20th May 2013 from Official X and confirming that Mr F was not in a position to certify that A met the eligibility criteria for RACE on grounds of a SLD and on the same basis, the SEC could not grant a reader (as outlined above).  The School also received an email confirmation that A was being withdrawn from the examinations on 4th June 2013.  Regarding his handwritten notes to self on his draft letter to the SEC and reference to needing protection because A’s Parents might come after him, they reflected how he was feeling at the time.  Whilst School 2 had acted appropriately and according to the RACE guidelines, he had a fear that if A transferred to another school who signed the form certifying a SLD, School 2 and the Board of Management would be vulnerable.

3.12 Mr F also reflected on the effect of the national media becoming involved after A’s Parents withdrew her from the Junior Certificate examinations. He recalled receiving a call from a journalist from a National Newspaper on 5th June 2013, the first day of the Certificate examinations and a busy day for any school.  The journalist had informed him that she had already conducted an interview with A’s Parents in relation to A being withdrawn from the Junior Certificate because she had not been granted accommodation and it being his fault.  He had told her that he did not wish to discuss individual cases.  When the journalist had referred to the letter from Official X, Mr F had questioned whether she had received the subsequent clarifying correspondence from the SEC which she should also read and she confirmed she had not.  Mr F immediately contacted Ms H in the SEC and informed her that the media were now involved.  An article appeared in the National Newspaper the following day but did not point the finger at School 2.  He then received a call from a journalist from a National Broadcaster who informed him that she had just completed an interview with A’s Family.  This journalist also referenced the letter from Official X and was adamant that as it was on the SEC headed paper, it was confirmation that it was his fault that A did not get a reader.  Again, Mr F said he declined to comment on an individual case or student and asked whether the journalist had seen the subsequent clarifying correspondence from the SEC that she should also read.  He recalled her telling him that the National Broadcaster was airing a report on the 5.30pm national news opening with the line that he was the only principal in the history of the State to treat a Down Syndrome child in such a way.  Mr F said that he had immediately contacted Ms H in the SEC again and also received a call back from the journalist to say that having spoken to the SEC, her view had not changed.  He again spoke to Ms H who was taking his calls even though a Press Secretary was dealing with the matter and a statement had been issued.  At that stage, he said he became very scared and rang his own Solicitor for advice.  His Solicitor may have made a phone call to the National Broadcaster to say they would be watching the broadcast but his legal advice had been not to threaten the media.  He was unaware of any correspondence from Solicitors for the School and/or the State threatening any legal implications.  As it was another busy examination day, he had remained at the School and had later learned that the interview had not been broadcast.  

3.13 Reflecting back on the situation, Mr F was of the view that Official X’s actions and letter had aggravated an already difficult situation between the School and A’s Parents. Mr F had written a detailed letter dated 8th August 2013 to the SEC setting out the factual position from his perspective and asking that it be treated as a formal complaint against Official X because his actions had “…caused untold stress and anxiety to me as Principal, pressure, stress and upset to my SEN Coordinator and additional work and inconvenience for my Board of Management…”.  He received a detailed response and apology from the SEC dated 17th October 2013 correcting the record and confirming that the letter from Official X did not represent the position of the SEC and should not have been sent, that Mr F had followed the SEC guidelines and the decision to refuse A a reader was made by the SEC.  It referred to the pressures experienced by the SEC at examination time confirming that Official X is a well-respected and hard-working member of the team in the RACE Section and “… is both diligent and committed and through his effort in this particular case was misguided and overly sympathetic it was done in a genuine effort to assist a parent who found themselves in difficult circumstances so close to the start of the written examinations.”  Mr F accepted the apology by email also questioning the certification process.

3.14 Thereafter, Mr F recalls the letter dated 5th June 2013 from the Board of Management setting out the School’s position in response to the complaint and inviting A and her Parents to a meeting as cited above. School 2 had been unaware of A’s Parents’ intention to withdraw A from the School and the Board of Management had written to them again on 26th June 2013 inviting them to meet with the School, seeking clarification again as to the nature of A’s SLD and reiterating its position following clarification from the SEC, noting that the majority of the matters of complaint rest with the SEC.  However, A’s Parents did not respond or take up his or the Board’s offer of a meeting and withdrew A from School 2 on 7th August 2013.  Whilst Mr F was aware of A’s transfer to School 3, he did not have any discussions with the Principal regarding this move.  He strenuously refuted the suggestion of any collusion giving rise to A’s Parents’ subsequent difficulties with School 3 attributed to School 2. 

3.15 Mr F strenuously refuted the allegations made by A’s Parents in the direct evidence regarding his conduct towards them at their various meetings including the allegation that he had said that the School is about the collective and not about the individual and had wiped his hands after shaking Mrs B’s hand or had thanked her for her honesty during a meeting on 9th January 2013. He could not believe that had been said and there was no truth to it as everything in School 2 is about the individual and during his forty years in education, teaching and as a principal, the student was central to everything he did.  In every subsequent letter to A’s Parents, he had talked about A’s individual needs.  He confirmed that the vast majority of the School’s correspondence with parents was generic in nature but where matters of an important, personal, confidential nature arose, the practice was to send such correspondence by registered post and this was not peculiar to A’s Parents.  The level of correspondence between A’s Parents and the School was excessive reflecting the level of issues and interactions that arose.  

Questioning of Mr F, Principal of School 2 by A’s Parents, Mr and Mrs B

3.16 In chronological order, A’s Parents questioned Mr F regarding their initial meeting on 16th October 2012 to discuss A’s transfer from School 2. Whilst Mr F maintained that he had not refused A entry to the School as he did not have that authority, he had expressed reservations and concerns about the timing of A’s transfer and informed them that he would be expressing these to the Board prior to making a decision.  He again denied their assertion that he had said that the Board always upheld his recommendations.  He clarified that the envelope he had handed to A’s Parents on leaving the meeting contained the School’s Policies and Procedures which included the Admissions Policy.  There was also disagreement as to precisely what Mr F had said regarding the right to appeal any decision.  Mr B said that he felt that this was significant as it was the beginning of correct processes not being followed.  A’s Parents also took issue with Mr F regarding the manner in which A’s place at School 2 had been confirmed with a phone call to Mr B and in response, Mr F said that this had been out of courtesy.  

3.17 A’s Parents also sought to clarify what had been agreed at their meeting with Mr F, Mr G and the SENO on 29th November 2013. Mr F confirmed that as per Ms G’s notes, it had been agreed that A undertaking examinations would be reviewed after a settling in and observation period and no commitment could be given beforehand.  A’s Parents disagreed with this position and Mr B stated: “I want to state categorically that she was supposed to be doing her Junior Cert and that’s the only reason why we got the section 29.  I’m 100 percent.”  In response, Mr F pointed out that their correspondence to School 2 indicated otherwise.  Contrary to their contention, Mr F maintained that he had said that art and music in the SEN class were not offered as Junior Certificate subjects.  A’s Parents said that they were “a little bit confused” over the SEN Unit and what policies and procedures applied.  Mr F confirmed that the SEN Unit was to cater for the individual needs of students with psychological assessments which recommended a special class and whilst it had its own SEN policy, it was also part of the School and subject to its generic policies.  He further explained that the mainstream classes were interchangeable with the SEN classes.  For example, a child with a particular strength in English but who struggled in maths would move from one to the other.  He also confirmed that class denotations 1L, 2L and 3L were used for internal purposes and did not correspond with chronological class years so a student could be in 1L for English, 2L for geography and 3L for maths as clearly explained to A’s Parents at the time.  Hence A had been entered into the 1L class for no particular reason but when Mrs B had become very upset about this and brought it to the School’s attention, she was immediately moved to the 3L class. 

3.18 A’s Parents also questioned Mr F about his role in relation to supporting any child who expresses a desire to do an exam and his handling of the RACE applications for A. Mr F said that if he had concerns about the impact of any move on a child in his care, his role and responsibility is to bring these concerns to the parents of that child.  Regarding supporting a child undertaking State examinations and activating the necessary supports to assist that child, he confirmed that his role is to provide all supports within his ability and power for any student under his care.  A’s Parents put it to Mr F that he had not maintained that protocol in relation to A undertaking the Junior Certificate examinations.  Mr F maintained that he had gone beyond any protocol and outlined again a detailed account of all his dealings in relation to the application for the RACE Scheme for A from the point at which the School agreed to go along with their parental choice to have A undergo the Junior Certificate examinations in January 2013.  He maintained that in the normal course, if a student is not eligible for the RACE Scheme, no forms would have been submitted.  However, in an effort to support A’s Parents, they had been submitted uncertified along with a covering memo on the advice of the SEC’s Representative that the SEC would deal with them.  This system actually worked as it had resulted in A receiving four out of the five accommodations sought.  He did not know who had returned the forms from the SEC initially with the comments “no signature, accommodation not ticked” noted on the memo.  He was never going to sign the forms to certify something that he did not believe existed but the accommodations being sought still had to be selected and that is why the forms were returned to A’s Parents.  There was disagreement as to what had occurred at the parent-teacher meeting of 13th March 2013 regarding whether there was more than one set of forms and what was said regarding completion of the forms.  A’s Parents maintained that Mr F and Ms G had been unhelpful and they had to bring the forms home and seek Ms D’s assistance to complete them before leaving them back into the School on 15th March 2013.  When asked about his telephone conversation/s with Ms D in March 2013, Mr F said that it had already been established that he had informed her that he had not signed the RACE forms.  He accepted that he had not referred to not signing the forms or his communications with the SEC in this regard in any of the registered letters he had sent to A’s Parents.  In this respect, he pointed out to them that the evidence of Ms D, their Advocate and witness was that he had repeatedly informed her that he was not signing the forms as per her contemporaneous notes and she had been in constant communication with them.  However, they maintained that they only became aware of this when they had contacted Official X in the SEC in mid-May 2013.  They also put it to Mr F that he had informed Mr B he had signed the forms during a telephone conversation on 24th May 2013 around the time of refusal of the SLD accommodation.  He said that this contention did not make any sense when the forms in the possession of the SEC did not bear his signature.  He confirmed that he had rung the SEC after his telephone conversation with Mr B around the same time and had learned that Official X had issued a factually incorrect letter (as outlined above). 

3.19 Commenting on Mr F’s evidence, Mr B recalled that when Mr F had rung him about what accommodations had been granted, he had told him: “I don’t speak to people like you.” and telling him that he was busy and was going to hang up which he did. However, Mr F had then rung Mrs B offering to submit an appeal for A which they had not wanted. Mr F refuted the last assertion and said that during his subsequent call with Mrs B, she had accepted his offer of sending in an appeal by fax as being the quickest mode.  In this respect, Mrs B interjected and contended that she had said to Mr F: “Knock yourself out.”  Mr F also recalled a letter from the SEC granting all accommodations sought sometime in April 2013 followed by a phonecall to the effect that it had issued in error and seeking its return.  As he had been on leave at the time, the Deputy Principal handled the matter and returned the letter but no copy had been retained.  He could not confirm whether the Home Economics teacher had been referring to that letter when she had informed A’s Parents that accommodations had been granted in April 2013. 

3.20 A’s Parents were invited to put all of the matters giving rise to their complaint against School 2 to Mr F. Regarding the complaint of victimisation, they put it to Mr F that he had threatened to sue them on foot of their complaint.  Mr F confirmed that this was the letter of 5th June 2013 from the Board in response to their complaint of 29th May 2013 which he had found defamatory and damaging to his reputation.  His sole intention was to protect his reputation from unfair and unwarranted damage.  The complaint had been investigated and he had excused himself as Secretary of the Board for the period of investigation owing to a conflict of interest.  As well as questioning Mr F, this process also entailed asking A’s Parents to come in and meet with the Board to clarify aspects of their complaint including A’s SLD as confirmed in the letter of response.  However, A’s Parents had not responded to the letter or attended.  A’s Parents raised a number of other issues with Mr F unrelated to these complaints. 

Questioning of Mr F, Principal for School 2 by Counsel for the Second-named Respondent

3.21 Mr F confirmed that the meeting on 19th February 2013 with the School and A’s Parents also attended by the NEPS Psychologist Dr J was to discuss A’s IEP as required and not her RACE application. He recalled that Dr J had a general discussion with Ms G in relation to the eligibility criteria for RACE but did not have a specific discussion in relation to A because NEPS are not involved in Junior Certificate applications.  He accepted that forms with the accommodations ticked may not have been received by the SEC for processing until mid-March and acknowledged that it would have been an extremely busy time.  Regarding Mr F’s recollection of the SEC issuing a letter granting all accommodations in April 2013, it was put to him that there was no record of any such letter issuing and there may have been an earlier communication confirming grant of a helper for the Home Economics practical because the formal letter granting the physical accommodations had not issued until 22nd May 2013.  Mr F said that he could not dispute that as no copy of the letter had been taken before its return.

Direct Evidence of Ms G, Special Educational Needs (SEN) Coordinator for School 2

3.22 Ms G confirmed that she is the Special Educational Needs (SEN) Coordinator for School 2 which involves running the SEN Unit and providing resource and learning support teaching. This entailed assessing students with additional needs such as learning and physical difficulties and putting the necessary supports in place.  Students were accommodated within both mainstream and SEN classes and there was a special needs allocation both in terms of the SEN Unit and the broader student body. 

3.23 Ms G outlined her interactions with A and her Parents in relation to her transfer to School 2 and her handling of the application for the RACE Scheme on behalf of A. She confirmed that her initial meeting on 2nd October 2012 with Mrs B and her friend, Ms E, was an exploratory meeting to highlight what School 2 had to offer to students within the SEN classes and the range of possibilities within the Junior Certificate Schools Programme (JCSP).  She recalled discussing the possibility of A following the JCSP, sitting exams and alternatives.  She had mentioned that the JCSP would generally be taken over two years to enable exams to be sat on a staggered basis.  She confirmed that all students in the SEN class follow the JCSP and if they have a particular flair for a subject after a period of monitoring, they might also join mainstream classes.  They would be awarded the JCSP at the end of the Programme with the possibility of sitting up to five subjects depending upon ability.  Regarding the contention of A’s Parents that Ms G had made specific commitments to A, she said that without a period of monitoring or psychological report for A: “I wouldn’t have been able to make a judgement call on whether A would have been able to go into a mainstream or what the flair was at the time or the capabilities at that time.”

3.24 Ms G referred to contemporaneous typed-up notes of her subsequent interactions with A’s Parents which would have been taken as a matter of course to form an IEP or support plan for a student. She recalled the meeting with Mr F and A’s Parents on 29th November 2012 to discuss A’s transfer.  It had been her understanding that A would not be sitting any examinations.  Whilst she recalled Home Economics and Art being mentioned as possible subjects down the line, the possibility of her sitting the Junior Certificate that year had not been discussed.  She was coming into the JCSP as evidenced by her move from a mainstream school to the SEN.  As outlined above, Ms G had noted that no commitment to exams could be given and that the possibility of A sitting exams was mentioned as an option after a period of monitoring.  As there are a limited number of subjects available under the JCSP and Art was not one of those available, it was definitively confirmed that Art could not be taken as an exam subject.  Furthermore, it would have been a matter for the Art teacher to confirm whether a place was available.

3.25 It was common case that the day after A started with School 2, on 8th January 2013, A’s Parents had expressed a desire for her to undergo the Junior Certificate examinations that year. Ms G’s view had been that this was too quick, A had only started the day before, she did not know her abilities, supports needed or the preparation work previously done and more time would have been required to collate that information.  Additionally, there was no evidence to suggest that A would be afforded supports in the exams.  She had noted: “I agreed in principle to pursue RACE from School 1” meaning that she would confirm whether an application for RACE had been made in respect of A.  She was in possession of the NEPS Reports for A at that stage and as cited above.  On 8th January 2013 she had noted that A would not be eligible for RACE on grounds of a SLD as her last Psychological Report confirmed that she had a moderate general learning difficulty.  At the subsequent meeting with Mrs B and Mr F the following day she had expressed her view that A would not be eligible for the RACE Scheme and a reader on grounds of a SLD because she did not have a SLD.  She had confirmed that no application for RACE on behalf of A had been made to the SEC.  Without specifically referring to A’s eligibility for RACE, she had also spoken to Dr J and confirmed that the 2010 NEPS Report did not disclose a SLD.  Regarding Mrs B’s complaint about A being in the first-year instead of the third-year class, she had explained the interchangeability of the SEN classes to Mrs B and had A moved from 1l to 3l class immediately. 

3.26 Ms G also recalled the meeting on 19th February 2013 with A’s Parents and the differences in opinion between them and the School as to what was in A’s best interests in terms of undertaking the Junior Certificate examinations that year as already outlined by Mr F with reference to her contemporaneous notes. She had expressed her concerns but ultimately A’s Parents had indicated that it was their parental choice that A would sit the Junior Certificate that year and the School agreed to cooperate.  The RACE application forms had been submitted at that stage.  She understood that there was no need for a new NEPS psychological assessment at that stage as one had been undertaken in 2010.  She did not recall A’s Parents requesting an updated assessment for the purposes of her application for the RACE Scheme on grounds of a SLD.  She referred to her notes regarding the return of the application forms from the SEC with the comments “no signature, accommodation not ticked” on 4th March 2013.  She confirmed that anything regarding reasonable accommodation would have been directed to her by the School secretary.  She had telephoned the SEC and was advised to return the forms with the boxes indicating the various accommodations being sought ticked.  She had explained this to A’s Parents at the parent-teacher meeting on 13th March 2013 and had also confirmed to them that Mr F was not signing the forms to certify A’s eligibility for RACE on grounds of a SLD.  She would have previously sent A’s Parents the RACE guidelines along with a note explaining what needed to be done.  She recalled calling Mr F over politely at the parent-teacher meeting when A’ Parents would not accept what she was saying.  She rejected the contention that Mr F’s intervention was aggressive towards A’s Parents.  She recalled Mr F repeating exactly what she had said to A’s Parents, being that they needed to stipulate what accommodations they wanted and the School would forward on the forms.  She denied telling A’s Parents that the School would sign and stamp the forms before forwarding them to the SEC. 

3.27 Ms G referred to her note confirming that she had sent a sample of A’s written work from her mock exams to the SEC at its request for the purposes of referral to NEPS as would have been the process for Leaving Certificate RACE applications. She had attempted to undertake a reading test with A but had been unable to complete it.  As noted, she had a conversation with a Representative from the SEC on 22nd April 2013 in relation to A’s scores, the fact that A had a moderate general learning difficulty and that a reading test had not been possible.  He had requested a psychological report and samples of A’s work which were immediately provided.  He had also asked why the School had not signed off on the form (for a SLD) and she had informed him that A was not eligible as she had a moderate general learning difficulty.  She recalled the Home Economics teacher asking her whether A would have been eligible for a helper to undertake her Home Economics practical.  She had advised her to phone the SEC who would have granted a helper.  In her experience, it would not have been unusual to obtain the grant of a helper by telephone in the context of a late application or for a practical in advance of written exams.  Her next note referred to a phone call with Official X in the SEC on 14th May 2013 where it was indicated that the NEPS Psychologist assessing the application on behalf of the SEC felt that there was insufficient information to grant accommodation to A on grounds of a SLD.  She informed Official X that she had submitted samples of A’s work the previous month but the SEC had not reverted to seek further work or clarification in the meantime.  She also recalled that he had asked her “off the record” to sign off on the form (for a SLD) and she had indicated that this might be permissible in some instances but not in this case as they knew that A was not eligible and could not certify to the contrary.  She had said that he could revert should he need further assistance.  At the time, there were a lot of conversations between everyone involved.  She subsequently tried to contact the SEC to ascertain the status of A’s RACE application and when she could not get an answer, she rang Mrs B to inform her of her concerns.  She gave her a contact number to try phoning and said that she would also continue phoning.

3.28 Finally, Ms G clarified a number of other matters for the Tribunal. She confirmed that the Special Educational Needs Organiser (SENO) who had also been present at some of the meetings with A’s Parents and School 2 is employed by the National Council of Special Education and assigned to schools to ensure that students with special needs get necessary supports.  In the normal course, preparation for the transfer of a student would have begun beforehand and information would be collated from various meetings, NEPS, parents and student ahead of starting with the new school.  This fed into the IEP which was always changing and flexible in nature.  In the instant case, the focus of the last NEPS Report had been on A’s independent living skills.  In the normal course an IEP would also be in place for exams.  The meeting on 19th February 2013 had been organised for the purpose of finalising a draft IEP for A.  However, the IEP for A was never finalised as A’s Parents had expressed a view that they should have been involved in the drafting process but had not taken the draft IEP home to review it and revert.

Questioning of Ms G, Special Needs Coordinator for School 2 by A’s Parents, Mr and Mrs B

3.29 Mr and Mrs B questioned Ms G about the formulation of the draft IEP for A and the manner in which it was handled. When prompted they confirmed that they had no further questions for Ms G.

4. SUMMARY OF THE SECOND-NAMED RESPONDENT’S EVIDENCE

Direct Evidence of Ms H, Senior Manager with the State Examinations Commission (SEC)

4.1 Ms H gave evidence outlining the State Examinations Commission’s handling of A’s application for the RACE Scheme to undertake her Junior Certificate in 2013 and the SEC’s interactions with A’s Parents and School 2 in this respect. She confirmed that she acts at senior management level for the SEC and her role entails running all aspects of the Leaving Certificate, Junior Certificate and Leaving Certificate Applied examinations.  This involves planning, organising, directing and controlling the exams for approximately 120,000 students each year, and in 2013 this included 15,000 students with special educational needs availing of access arrangements.  She confirmed that the SEC is a body corporate established under the Education Act 1998 with its own separate legal identity as an aegis body of the Department of Education and Skills to oversee, accredit, assess and deliver the Certificate examinations governed by Statutory Instrument 373 of 2003 – State Commissions (Establishment) Order 2003.

4.2 Ms H gave her evidence with reference to the documentation underlying the RACE Scheme submitted by way of background information (and not put in issue). She outlined the general purpose of RACE as a scheme of arrangements for students with indicated special educational needs who require some level of facilitation to enable them to engage in Certificate examinations.  It is underpinned by a Report of an Expert Advisory Group from 2000 and a Framework of Principles and governed by Department of Education and Skills Circulars as set out in more detail in legal submissions.  The relevant principles for the Junior Certificate RACE Scheme in 2013 provided: “Reasonable Accommodation should be designed to remove as far as possible the impact of a disability on a candidate’s performance, so that he or she can demonstrate in the examination his or her level of achievement.  Reasonable Accommodations are designed to assist a candidate in demonstrating his or her achievements in an examination setting.  They are not designed to compensate for a possible lack of achievement arising from a disability.  Since a core of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give a candidate for whom they are made an advantage over other candidates.”  Access means facilitating access whilst at the same time not conferring an unfair advantage or enabling achievement beyond actual capability and hence maintaining a fair playing field.  In affording such access, it is very important not to undermine the integrity of the Certificate examinations.  Ms H confirmed that the Scheme was in place to enable a student to participate in examinations at the level of their ability rather than simply participating and “…providing support arrangements to allow students to engage to their fullest potential within the examinations context.”  The guidelines for the RACE Scheme for Certificate examinations are reviewed annually and published every year to set out the criteria to be met for the various accommodations available and to assist schools with the assessment of eligibility.

4.3 Ms H confirmed that in 2013, applications for accommodation under the RACE Scheme were based upon four grounds, namely, visual, hearing, physical and specific learning difficulty/ies (SLD) with a different form for each. The types of accommodations that can be put in place depend upon the needs of the individual student.  They can include a reader for a student who is unable to read the examination papers to the required standard and a scribe for a student who is unable to write or write sufficiently for examination purposes.  A spelling and grammar waiver apply in relation to both use of a reader or a scribe for language subjects.  There is no scenario whereby a student who did not meet the criteria would be granted accommodation under the RACE Scheme.  The concept of a SLD originated from the Expert Advisory Group Report 2000 upon reviewing and consolidating the existing scheme of reasonable accommodations which had largely been provided on an ad hoc basis up until then.  A SLD was deemed to arise when a student’s general intellectual capacity indicated that they could perform to a particular standard but their attainment in either reading, writing or spelling was beneath that level e.g. dyslexia.  A SLD for the purposes of RACE referred to reading ability as opposed to reading comprehension.  There was no way of providing accommodation to address reading comprehension difficulties such as by explaining the words or rephrasing the questions without undermining the examination.  Therefore, if a difficulty with any of these areas arose as a result of a lower general intellectual score, the student would not be eligible for accommodations on grounds of a SLD under the RACE Scheme.  The 2013 guidelines made a distinction between a general learning difficulty and a specific learning difficulty (SLD) for the purposes of RACE Scheme.  They also confirmed that firstly, the existence of a learning difficulty in its own right did not confer access to the RACE Scheme and secondly, that the existence of a general learning disability in itself was not sufficient to qualify and there must be the existence of a SLD.  Additionally, the existence of a SLD in itself was not sufficient for the RACE Scheme and qualification for a reader required a standard score of 85 or below, error rate of 7% or a word reading rate of 90 words per minute or below.  With reference to the evidence adduced on behalf of the Complainant, Ms H confirmed that as the role of a reader in an examination context is limited to the reader’s written instructions as set out by the SEC.  Whilst the reader can read the paper as many times as required by the student and emphasise words designated for emphasis within the text, they are not allowed to place emphasis or inflect on any other words or prompt.  Therefore, the view that a reader will assist a student to stay focused on the examination is incorrect.  Ms H also clarified that whilst the RACE Scheme was initially launched for students with a SLD, it was later recognised that a general learning disability was not a barrier to access but there also needed to be an accompanying learning difficulty.  

4.4 Ms H also confirmed that the RACE Scheme had evolved since 2013 and from 2017 onwards and the process by which applications were made fundamentally changed. Prior to 2017, schools had considerable autonomy in relation to Junior Certificate applications under the RACE Scheme in that they made a recommendation to the SEC in accordance with the guidelines provided which the SEC accepted.  A different model had applied in relation to the Leaving Certificate applications for RACE and schools were required to apply afresh even for those students who had been granted accommodations for the Junior Certificate.  Rather than the SEC accepting their recommendation, schools were required to provide evidence in support of an application.  In the case of an application on grounds of a SLD this included evidence of the SLD, the test scores and the reading rate which would all be provided to NEPS who would make a recommendation as to eligibility.  According to Ms H, the pre-existing system had led to a disconnect between what accommodations had been granted at Junior Certificate level and Leaving Certificate level with discrepancies arising between the schools’ and the SEC’s assessments of eligibility.  Whilst schools retained their autonomy, since 2016-17 they have been provided with more specific guidelines which has brought consistency and congruity between Junior and Leaving Certificate RACE applications.  The RACE Scheme also moved from a diagnosis-based to a needs-based model in line with a change in the allocation model for resources.  The term ‘specific learning difficulty’ was replaced with the term ‘learning difficulty’.  Whilst the current process still requires a student to meet the same scores, they do not necessarily have to have an accompanying SLD.  Ms H explained that this does not confer an unfair advantage to a student with an intellectual disability or interfere with the integrity of the system because it enables a student with a reading constraint for whatever reason to access the examinations by way of a reader and ultimately, it is their response to that question that is being tested. 

4.5 In 2013, the SEC was confined to applying the RACE Scheme in accordance with the applicable guidelines to ensure fairness to all students. The closing date for RACE for each of the four different application types was 31st October 2012.  The forms had a simple format and the student’s details were completed at the top.  The school indicated the accommodations being sought and the Vice / Principal certified eligibility by signing the form which was also co-signed by the parent and/or student within the same box.  Once such an application was received by the SEC, it was accepted that the student had been assessed by the school in line with the guidelines and the accommodations as recommended by the school would be put in place.  In cases where a school was of the view that a student was ineligible for RACE, the expectation of the SEC was that no application would be made.  Therefore, it was very unusual to receive an application such as that received from the First-named Respondent (School 2) on behalf of A in 2013.  The SEC had tried to find a pragmatic solution for dealing with cases where there was a difference of opinion as to eligibility and adopted the process used for assessing Leaving Certificate RACE applications in such instances.  In relation to a SLD application, this entailed gathering all of the available evidence including word reading tests scores which would be referred to NEPS to conduct a desk-based review in order to make a recommendation to the SEC as to what accommodations should be granted.  Decisions regarding physical accommodations were made by the RACE Section in the SEC in consultation with the school authorities without the involvement of NEPS who primarily deal with psychological issues.  The SEC would also consult another educational body regarding visual and hearing applications.  Ultimately, the SEC was the decision-maker for RACE applications, acting upon the recommendation of schools at Junior Certificate level and the recommendation of NEPS at Leaving Certificate level in relation to RACE on grounds of a SLD.  Under the new procedures, there is a complex case referral process for dealing with situations where an issue or dispute arises as to eligibility.

4.6 Ms H then addressed the RACE application made by School 2 on behalf of A in the instant case.  She confirmed that the application forms had been received by the SEC in March 2013 months after the closing date but were accepted as late application.  It was accepted that there had been a conversation between Mr F, Principal for School 2 and a Representative in the SEC to the effect that Mr F had said that he was unable to certify A’s eligibility and was told to send in the application forms unsigned and the SEC would deal with them adopting the process outlined above.  The forms were returned to School 2 as the boxes corresponding to the accommodations sought had not been ticked and the forms had not been signed.  Thereafter, in mid-March 2013, the application forms were resubmitted with the boxes corresponding to the accommodations sought ticked and signed by Mr B on A’s behalf but not by School 2.  A scribe, a helper for practical examinations and special centre were sought in the application on grounds of physical disability/ies and a reader and spelling and grammar waiver were sought in the application on grounds of a SLD.  The application on grounds of physical difficulty/ies had indicated that A had Down Syndrome and a moderate general learning difficulty.  It would not have been uncommon for the SEC to grant physical accommodations where such a diagnosis had been indicated at Leaving Certificate level.  Therefore, the fact that the physical difficulty/ies had not been certified by School 2 would not have posed a particular difficulty using the Leaving Certificate applications process and explained why A had been granted the physical accommodations sought without any further issue.  

4.7 However, as School 2 had not certified that A presented with a SLD, this application was referred to NEPS for review.  As all available psychological evidence of a SLD was required by NEPS for its assessment, this was sought from School 2 as already outlined by Ms G.  Following an internal direction, the SEC had written to School 2 requesting: “An up-to-date, standardised reading and spelling test score, a one A4 sample page of work undertaken during examination conditions.  The percentage of errors must be calculated on the sample supplied.  The speed of reading and percentage of reading errors must also be forwarded.”  School 2 had furnished the last NEPS Report dated 4th August 2010 for A along with a sample of her written work.  Following receipt of this information, NEPS had written to the SEC on 20th May 2013 stating: “In relation to the application on behalf of A for reasonable accommodations (reader and exemption from spelling and grammar) I wish to note that the application does not provide sufficient information to confirm that A has a specific learning difficulty, as set out in RACE guidelines.  Specifically, Reasonable Accommodation Guidelines for the Junior Certificate specify that in addition to a marked failure to achieve expected levels that a specific learning difficulty may be indicated where: The observed level of difficulty is inconsistent with the candidate’s ability as demonstrated in knowledge of course content and knowledge of other areas of the curriculum.  Thus, there is insufficient information on file to indicate that A meets the criteria for a specific learning difficulty as set out in the Junior Certificate Reasonable Accommodation Guidelines.”  Ms H confirmed that the SEC had interpreted this to mean that A did not have a SLD and accordingly, a letter dated 24th May 2013 issued refusing this application as she was not eligible in line with the criteria.  A letter dated 22nd May 2013 had also issued granting the various physical accommodations sought including a scribe, helper for practical tests (orally granted by phone for the Home Economics practical in April 2013) and a special examination centre.  Whilst a spelling and grammar waiver had also been sought on grounds of a SLD, it accompanied the scribe granted so the only accommodation not granted to A was a reader.  Although specific reasons for refusal of the reader were not expressly given at the time, they were available on request.  Ms H said she had no knowledge at the time or any record of a letter issuing granting all of the accommodations sought before being withdrawn and that this was highly unlikely.

4.8 Ms H then dealt with the letter of 20th May 2013 from Official X to A’s Parents.  She confirmed that Official X worked in the reasonable accommodation section and had taken over A’s RACE application.  Regarding the question of whether Official X had authority to issue the letter she said: “No, (Official X) did not have authority to issue the letter, and clearly we had some difficulty in dealing with this case, and did not consult as he ought to have done in relation to the handling of the case.”  Ms H also confirmed that he had not discussed the letter with his manager or any superior within the SEC before issuing it and “I’m conscious that (Official X) is not here today to defend himself, and just to say that he is a very conscientious and hardworking member of the team in the reasonable accommodation section.  And I can only put this down to a response to dealing with a difficult situation.  But under pressure he didn’t do what he ought to have done, which is to consult with his manager in relation to dealing with the case.”  She had been unaware of the letter until much later on Friday 31st May 2013 when it was brought to her attention on behalf of Mr F and it became evident that it had caused a difficulty and “…did nothing to further relations between the School and the parents.”  As soon as the SEC became aware of this letter, a detailed letter of rebuttal dated 4th June 2013 was issued immediately to A’s Parents despite it being a very busy time with the commencement of the examinations.  Ms H further confirmed that when she had made initial enquiries about the existence of the letter, nobody knew about it as it had not been placed on the file by Official X and had remained on his desk.  This would explain why Mr F had received a similar reaction when he contacted a Manager in the SEC around the same time.  Ms H had also authored the response of 17th October 2013 to Mr F’s letter of complaint dated 8th August 2013 as outlined above correcting the record and apologising for the actions of Official X on behalf of the SEC. 

4.9 In the meantime, an appeal had been received by School 2 on behalf of A and her Parents and an appeal hearing was held by an Independent Appeals Committee on Friday 31st May 2013.  As there would not have generally been appeals in relation to Junior Certificate examinations, the Committee were dealing with Leaving Certificate applications.  In A’s case they saw the full file of materials up until that point save for Official X’s letter and made their decision to uphold the refusal of a reader based upon same. 

4.10     Ms H also confirmed that the National Press and a Broadcaster had contacted the SEC regarding the refusal of a reader to A.  Their Press Officer would have said that the SEC could not comment on individual cases and a press statement was issued setting out the generalities in relation to the Scheme.  She denied that any lawyers on behalf of the SEC had contacted the Broadcaster regarding the intended coverage.  It is common case that she liaised with Mr F regarding the media coverage as outlined above.

4.11     Ms H was unable to provide further information as to the instances when schools incorrectly certify a student as being eligible for accommodation in relation to the Junior Certificate examinations giving rise to discrepancies when it came to assessing eligibility later on for the Leaving Certificate.  However, she was aware of instances where students with Down Syndrome have been diagnosed with both specific and general learning difficulties and have availed of RACE to do their Leaving Certificate examinations.  Although the SEC is the ultimate decision-maker in relation to the grant of accommodation for the Junior Certificate, schools had a very important role in terms of certifying eligibility in accordance with the RACE guidelines.  Ms H also confirmed that the assessment of students with disabilities in an exam context was an ever-evolving process and the RACE Scheme had developed and changed over time.  She said that it had to change to accommodate the ever-increasing number of students with different types of disabilities within mainstream education and educational policy is towards mainstreaming of students with special educational needs. “And clearly the examination system doesn’t exist in a vacuum; it has to be in line with what’s happening overall in relation to educational policy.  And the most recent iteration of the RACE Scheme, which I suppose removes that GLD/SLD barrier that might have been there, is a further development and a further evolution of that” and “something we’re going to have to keep under constant review and working with our colleagues and partners in the Department of Education.”  Nothing new arose under questioning by A’s Parents or Counsel for the First-named Respondent.

Direct Evidence of Ms I, Senior Manager at National Educational Psychological Service (NEPS)

4.12     Ms I confirmed that she acts at senior management level at the National Educational Psychological Service (NEPS) and holds primary degrees in Education and Psychology along with a Master’s Degree in Educational Psychology and is a member of the Psychological Society of Ireland.  NEPS provides psychological support services to schools on behalf of the Minister for Education and Skills under the auspices of the Department of Education and Skills.  It employs educational psychologists to support mainstream schools and its work is twofold: (1) casework involving direct contact and assessment of students to inform the implementation of interventions and (2) supporting schools to build capacity to support children with special educational needs or who are marginalised by disadvantage.  This work includes consultation with teachers, training and advising schools in relation to schemes including the RACE Scheme.  As already outlined, NEPS did not have a direct role in assessing students’ eligibility for RACE at Junior Certificate level in 2013, but its psychologists were familiar with the Scheme and provided advice to schools.  It had a more direct role in relation to Leaving Certificate RACE applications on grounds of a SLD where its psychologists examined all of the evidence contained on a student’s file and made a recommendation to the SEC as to eligibility for the accommodations sought.

4.13     Ms I explained that schools generally request assistance from NEPS when there are interventions in place and a child has not responded like other typically developing children.  NEPS gather information from numerous sources including talking to the child’s parents about the child’s developmental history, talking to the school and looking at the IEP in place, school-generated information and test scores along with conducting its own tests.  If a child presents with reading difficulties, an IQ test is usually conducted measuring a child’s overall level of ability.  Attainment tests including reading accuracy, spelling, reading comprehension and different types of literacy tests are also conducted in order to ascertain whether a child has a difficulty in any of these areas.  An explanation is formulated for the child’s presentation based upon the information gathered.  A reading difficulty might be explained by a general learning disability if it is in line with general cognitive ability.  If there is a mismatch between a child’s attainment scores in reading and their overall level of ability or performance in other areas, then it would be called a specific learning difficulty (SLD).  A general learning difficulty is identified with reference to cognitive functioning or IQ.  Standard scores are used in tests with a perfect standard score of 100 on a scale generally ranging between 70 and 130.  Therefore if a child scored 100, one would expect a child to be performing as well as 50% of children of the same age, a child with a score of 70 is functioning no better than 2% of the population and the performing ability of children scoring below 70 would be less than 1% of the population.  There are also tests to identify a SLD where a child already has a general learning difficulty.  The lower the ability level, the more explainable a reading difficulty.  A discrepancy is more apparent when IQ is higher but a SLD can still be identified where overall ability is low.  Each child is different and it is possible for a child with Down Syndrome to have a SLD.  Whether a SLD is something that an educational psychologist looks for when assessing a child depends upon the problem.  For example, if there is an issue with reading then they will conduct a range of tests to formulate an explanation including the existence of a SLD which would always be a consideration. 

4.14     With reference to the NEPS Report dated 4th August 2010 for A, Ms I confirmed that it did not identify a SLD.  In her experience, it would be referenced in such a report if there was evidence to support a SLD and if there was no such evidence, it would not be referenced.  The tests administered to A were ones that would usually be administered for the purposes of identifying whether there was a SLD such as a reading test.  The other test that had been used was an adaptive behaviour skill test which assesses a child’s practical and independent living skills and accompanies a cognitive test.  Typically, when children are diagnosed with a mild or a moderate learning difficulty, they are diagnosed using both adaptive behaviour and cognitive tests which need to be read in conjunction.  In this respect, A’s IQ test was consistent with the findings of the Vineyard Adaptive Behaviour Scale measuring the practical and independent living skills of a child.  The Psychological Report dated 26th July 2013 obtained independently by A’s Parents confirmed that A’s levels of attainment from the tests performed were commensurate with her general ability and therefore she is not presenting with a SLD.  The Report from Ms C, Senior Speech and Language Therapist was limited in that it only assessed A’s language.  In particular, it had concluded: “A’s language scores are between six and eleven standard deviations below the mean and between two and five standard deviations below what would be expected, given the general intellectual disability.  I would consider this to be evidence of a specific additional learning disability which is not attributable to the general intellectual disability.”  In this respect, Ms I was of the view that it had shown that A had a language difficulty but not a SLD in the area of reading and writing as required for RACE.  Generally, children with very poor language skills will also have difficulty with reading comprehension as alluded to in the 2010 NEPS Report for A and supported by the latter Reports furnished.  There were no questions of material relevance to these complaints from the other Parties.

Direct Evidence of Dr J, Senior Psychologist, National Educational Psychological Service (NEPS)

4.15     Dr J gave evidence confirming that he is a Senior Psychologist employed by the National Educational Psychological Service (NEPS) and works with primary and post-primary schools.  His work involves meeting with parents and teachers, consultations, direct work with children, support and development work including training teachers around evidence-based interventions in mental health, wellbeing and literacy but his mainstay is collaboration with parents and teachers to support children with additional educational needs within schools.  His region encompassed School 2 and as the assigned Psychologist, he became involved in A’s case from in or around January 2013.  The School had contacted him to request his attendance at a review meeting with A’s Parents to discuss A’s individual educational plan (IEP) which proceeded on 19th February 2013.  A file regarding NEPS involvement with A was available as the NEPS Psychologist who had compiled the 2010 Report had been involved with A’s previous school (School 1).  Dr J had also compiled a memo to a colleague in 2015 outlining his interactions regarding A and her Parents based upon the file which was submitted and not in issue.

4.16     Dr J recalled his meeting with School 2 and A’s Parents to discuss her IEP on 19th February 2013.  He confirmed that A’s Parents, Ms G, Mr F and the SENO were present in the meeting room.  When he introduced himself, it was clear that A’s Parents were not expecting him to be there.  He had explained his role as NEPS Psychologist assigned to the School and a colleague of the NEPS Psychologist previously involved with A.  He had sought their consent to his involvement and gave them time to consider their position.  After discussing the matter alone, they indicated that they wished to go ahead with the meeting.  [He had noted: “School staff then provided an update on A’s progress since transferring to (School 2).  The results of the Pre-Junior Certificate examinations were discussed.  School staff were of the opinion that A’s results indicated that she would be unable to pass the regular Junior Certificate examinations in June.  They suggested that following a more tailored curriculum focusing on life skills would be more appropriate in meeting A’s needs.  (Mr & Mrs B) said they understood that A was likely to fail examinations at Junior Certificate, but expressed the view that it was an important life milestone for A.”]  There was also some general conversation about SEN provision and A’s IEP during the meeting.  Mrs B had enquired about another psychological assessment for A.  He said that prior to the meeting he would have reviewed the psychological case notes including four previous NEPS psychological assessments for A.  He also enquired with A’s Parents and the School as to whether anything significant had changed in A’s presentation to establish whether there was a requirement for an updated assessment.  It was confirmed that nothing had materially changed since her last assessment in 2010.  He explained that as a Psychologist, he does not put a child through psychological test procedures unless there is a good rationale and there was no rationale for assessing A at the material time.  He had clearly explained this to A’s Parents and they had accepted his explanation.  This was the only time A’s Parents had requested a further assessment.  It had been raised as a general query and not in the context of eligibility for reasonable accommodation for specific examinations under RACE.  Dr J said they could contact him via the School should anything arise and a further meeting could be arranged.  So in his mind, it was not the end and he would always try to make himself available to support children if the need arises.  Thereafter, he confirmed that he did not have any further dealings with A’s Parents.

4.17     Dr J also recalled a short conversation with Mr F consistent with what had been described.  It was a general query regarding RACE and he would have directed Mr F to the Junior Certificate RACE guidelines.  He would have further clarified the criteria, being evidence of a Specific Learning Difficulty (SLD) requiring a standard score of 85 or below on a standardised reading test and 7% error rates on a reading script or reading speed text of less than 90 words per minute.  He confirmed that he had not provided any specific advice or direction in relation to the A’s application for RACE as the Scheme was devolved to schools and hence not within his remit.  As he would have had a potential conflict of interest, another NEPS Psychologist would have undertaken the review of the evidence presented in support of A’s application for RACE on grounds of a SLD.  He also recalled a short telephone conversation with Ms D, Advocate on behalf of A and her Parents on 14th March 2013 to query A’s RACE application.  He recalled that they had both been in front of their computers so he had directed her to RACE guidelines for the Junior Certificate 2013 on the SEC website and talked through the criteria including evidence of a SLD as outlined above.  Ms D had asked him whether he could make a decision on the applications and he had replied that it was not his role to decide on RACE for the Junior Certificate as it was a devolved Scheme for schools and referred her to Mr F.  She queried whether there was an appeal and he confirmed that there was an appeal and the SEC can be contacted directly regarding same.  He confirmed that he had been advising her that there was an appeal available as opposed to advising her to appeal as suggested in her evidence.  Regarding the letter by the Disability-related Charity to the Board of Management and reference to NEPS amongst others being “…of the opinion that the lack of co-operation by Mr F was delaying the granting of accommodations”, he denied ever expressing such a view to Ms D.  Nothing further arose under questioning by the other Parties.

5. SUMMARY OF SUMMISSIONS ON BEHALF OF THE PARTIES

Submissions on behalf of the Complainant and/or her Parents

5.1 Throughout the course of this case, four sets of written submissions were filed on behalf of the Complainant. A’s Parents confirmed that a submission dated 6th January 2016 expanding upon the grounds of complaint could be disregarded and an amended /updated version of the original submissions dated 14th April 2018 represented their final position.  It was submitted that the Complainant has Down Syndrome, which is a permanent lifelong condition including specific and physical learning difficulties and impairment with writing and gross motor skills.  At Junior Certificate level, most teenagers with Down Syndrome fall within the category of a moderate learning difficulty.  Despite these challenges, they are motivated to participate and achieve on State examinations with the appropriate level of reasonable accommodations in place, one of which is a reader to assist them to perform on an equal playing field.  Reasonable accommodations are designed to remove, as far as possible, the impact of the disability on performance and enable a child with Down Syndrome to demonstrate their level of attainment whilst ensuring no unfair advantage.  In reality, all children with Down Syndrome will need additional assistance to participate in the State examinations process.  The written submissions also set out the factual background broadly in line with the evidence of A’s Parents and statutory provisions. 

5.2 The following failures and grounds of discrimination / victimisation are alleged against School 2:

(1)    School 2 had misled the Complainant’s Parents in relation to the submission of the RACE application forms for A’s Junior Certificate examinations in 2013 by indicating that they would be signed and stamped by the School before submission to the SEC, when in fact that was not done. 

• (2) School 2 had not provided the Complainant’s Parents with sufficient guidance and assistance with completion of the RACE application forms for A as required under the RACE criteria / guidelines.
• (3) School 2 had failed to fulfil its duties in accordance with fair procedures and natural justice and exercise its discretion and significant degree of latitude in terms of confirming whether the Complainant should receive the benefit of a reader on grounds of a SLD for her examinations when no medical or psychological evidence was required. Furthermore, by appealing the refusal on behalf of A, School 2 was acknowledging that the Complainant should have been afforded a reader.
• (4) School 2 failed to apply for reasonable accommodations on the basis of the Complainant’s physical difficulties and had not signed the RACE application form on grounds of physical difficulty/ies.
• (5) School 2 had victimised the Complainant and her Parents in reaction to their grievances made on her behalf, and in particular by the letter of 5th June 2013 from the Board of Management threatening litigation along with a separate action by the Principal in response to their letter of 29th May 2013.
• (6) School 2 placed the Complainant at a significant disadvantage in relation to other students within the School in terms of sitting the Junior Certificate examinations in 2013.

5.3 The following failures and grounds of discrimination are alleged against the Second-named Respondent and/or the State Examinations Commission (SEC):

• (1)  The Second-named Respondent and/or the SEC in their role/s as service provider/s failed to provide the Complainant with a reader and hence reasonable accommodation for her 2013 Junior Certificate examinations when they knew that she had Down Syndrome and that this was required to participate in the examinations, and further failed to provide a proper system of reasonable accommodation.
• (2) By previously granting these accommodations to all other students whose schools made RACE applications, the Second-named Respondent and/or the SEC discriminated in the exercise of their discretion in relation to the Complainant. This is premised on the information received from Official X and the Disability-related Charity that in their experience such accommodations were always granted to students with Down Syndrome on foot of an application from a school.

5.4 As a consequence of the aforesaid, it was submitted that the Respondents had discriminated against the Complainant by treating her less favourably than other students without disability at School 2 in terms of sitting her Junior Certificate 2013 and/or had failed to provide her with a reader and reasonable accommodation contrary to the Equal Status Acts 2000-2012 and particularly Sections 3, 4 and 5 thereof.

5.5 At the conclusion of the hearing, A’s Parents confirmed that they had nothing to add to these submissions. Having heard all of the evidence, their views had not altered and they wished to pursue all of the complaints contained within the ES3 Complaint Form.  They also confirmed that they were maintaining the aforesaid complaints on the grounds of family status.  Various materials including information on the education of children with Down Syndrome and case citations were also furnished. 

Submissions on behalf of the First-named Respondent, School 2

5.6 Correspondence pertaining to the various issues arising, two sets of written submissions, a traversing factual analysis and oral submissions were received on behalf of the First-named Respondent (School 2). It was not in issue that as a person with Down Syndrome, the Complainant, A has a disability for the purposes of the Equal Status Acts.  In addition to the preliminary objections, the complaints of discrimination on grounds of disability and/or family status, failure to provide reasonable accommodation and victimisation made herein were strenuously opposed as having no evidential basis.  It was submitted that these complaints were predicated upon an incorrect factual basis, a misconception of School 2’s latitude to certify A as having a SLD and a misunderstanding of the applicable law.  From the outset, School 2 had also contended that it was not the correct respondent in circumstances where the preferential treatment and/or reasonable accommodation sought for A was peculiarly within the capacity and control of the State Examinations Commission (SEC).  Whilst acknowledging that School 2 had autonomy to sanction whether A had a SLD, it was contended that it was not the provider of reasonable accommodation under the RACE Scheme within the meaning of Section 4 of the Equal Status Acts.  The SEC receives applications for reasonable accommodation in State examinations (RACE), determines the criteria and guidelines for the RACE Scheme and makes the decision as to whether or not to grant or refuse the accommodations being sought.  In the instant case, the SEC had received A’s application for RACE, considered the application pursuant to its rules and made the decision to grant some and refuse other accommodations sought as upheld on appeal.  The SEC had confirmed that it had refused the application for a reader on grounds of a SLD because the Complainant had failed to satisfy the criteria for a SLD as defined under the RACE Scheme.  It was further contended that the SEC’s actions in this matter had a bearing on the allegations made against School 2 and the erroneous communications from Official X had added to the Complainant’s Parents sense of grievance which was incorrectly laid at its door.  The factual version of events presented on behalf of the Complainant was also contested.  At the heart of these complaints is the refusal by School 2 to certify and/or to sign forms certifying that the Complainant has a SLD.  It was submitted that this was an entirely appropriate course of action in circumstances where it was bound by the guidelines for the RACE Scheme as provided by the SEC.

5.7 In oral submissions, it was contended that the complaints made herein should be limited to the original Complaint Form and not on any expanded submissions which were not supported by any evidence in any event. Specifically, there was no evidence of less favorable treatment of A when compared with persons without a disability and no evidence of differentiation of treatment as between different disabilities.  Similarly, there was no evidence that A and her parents were treated differently because they were a family or that discrimination or victimisation by association arose.  It was submitted that this complaint is essentially about the requirement to provide reasonable accommodation, how far that goes and the extent of the duty on School 2 and the Department of Education and Skills and whether that duty was breached in some way or not with reference to the Supreme Court Judgment in Cahill -v- Minister for Education & Science (2018) 2 IR 417.  Section 4(1) of the Acts requires a service provider to do all that is reasonable and proportionate in the circumstances requiring careful balancing.  Such proportions include the pressures upon the Respondents and the need to maintain integrity of examinations and reasonable accommodation has to be realistic, not perfect.  Not affording an accommodation that one might desire to make does not automatically make it illegal.  Whilst a school has an obligation to assist a student with obtaining support to access examinations, the legislation does not go so far as to oblige the provision of bespoke accommodation to afford each and every individual student to undertake an exam to their best ability.  This interpretation would require resource diversion to individual circumstances which would be extreme and would also cause difficulty in providing and/or adhering to a clear scheme.

5.8 In the instant case, far from either School 2 or the SEC not taking steps to accommodate A, what actually happened was that they took substantial steps outside of the strict wording of the guidelines to ensure that A got a fair and considered roll of the dice in relation to accommodations sought. Based upon the uncontested evidence, it is irrefutable that the RACE guidelines required there to be a SLD for the purposes of the accommodation sought, being a core point.  Whilst schools may have autonomy to certify whether a student has a SLD, the SEC is the service provider responsible for setting the criteria and guidelines for RACE which made it clear that a school cannot and should not certify one where it did not believe a student to have a SLD.  This position was supported by the clear evidence of Ms H who confirmed that there was not an abundance of Junior Certificate RACE refusals because the SEC would expect that if a school did not believe that a student was eligible, they could not certify an application and hence an application would not be received by the SEC in the first place.  This is precisely what had occurred in the instant case because based upon all of the evidence including the Psychological Reports for A, nobody had at any stage diagnosed A as having a SLD for the purposes of these complaints.  Contrary to the suggestion by A’s Parents that for a period of time, nobody was looking for a SLD, the expert evidence was that if there was a SLD when A was assessed it would have been diagnosed at that stage.  A’s Parents had A assessed by other Educational Psychologists and Ms C, Speech and Language Therapist subsequent to the events giving rise to this complaint and none of their reports diagnose a SLD.  Ms C’s Report suggesting that A had a specific language difficulty is the height of such evidence and even if that was accepted by the Educational Psychologists, this still would not constitute a SLD for the purposes of RACE.  Therefore, on any construction of the evidence, there is no SLD and hence both School 2 and the SEC were absolutely correct not to certify that A had a SLD for the purposes of RACE.

5.9 Whilst it would have been open to both School 2 and the SEC to do nothing further at that stage, they went significantly further than that. School 2 firstly accepted A’s Parents’ parental choice for A to pursue the Junior Certificate examinations in 2013 notwithstanding their prior agreement to an evaluation period and contrary to School 2’s carefully considered reservations as expressed to them.  School 2 chased up and pursued the RACE application on behalf of A despite it being months after the closing date.  School 2 also specifically checked and sought advice from its NEPS Psychologist to ensure that its construction of the last NEPS Report was correct and in particular, that A did not have a SLD which could be certified on the application form.  Mr F had contacted the SEC to confirm that he could not sign the form certifying A as having a SLD and made specific arrangements with the SEC such that they agreed to take the forms and consider them on their own merits.  Further evidence sought from the SEC was immediately provided by School 2.  When the application on grounds of a SLD was refused, School 2 had lodged an appeal on behalf of A’s Parents.  Overall, School 2 had bent over backwards and gone beyond the scope of its obligations and procedures in place to ensure that A got every chance of obtaining the accommodations sought.  Other than a reader she had received everything else.

5.10 Counsel also cautioned against looking at the future to evaluate the past and submitted that the fact that the SEC has changed its system in the meantime, does not mean that the system in place in 2013 was discriminatory or unlawful. Under the new system the SEC takes on an adjudicative role where there is a dispute between the parents and the school in relation to seeking accommodations for exams in recognition of the tensions that can arise.  However, at the material time, on an ad hoc basis, School 2 and the SEC had put arrangements in place to deal with A’s RACE Application for her benefit.  With reference to case law confirming that that a school’s obligation is to do all that is reasonable, it was submitted that as was found in the case of A Student & Her Mother -v- A Secondary School DEC-S2018-018, interactions do not have to be perfect.  In that case, the Equality Officer had accepted that there will be tensions and operational problems along the way but one has to look at the totality of actions taken to assess whether all reasonable steps have been taken.  In this respect, both School 2 and the SEC had gone well beyond any construction of what reasonable steps should have been taken.

5.11 Counsel also referred to what were regarded as significant conflicts in the evidence and most fundamentally, the contention throughout by A’s Parents that School 2 had not informed them that it could not and was not signing off on the application form for RACE to certify that A had a SLD. They had also contended that School 2 had informed them that it would sign the forms and had done so and it came as a titanic shock to them in mid-May 2013 to discover not merely had School 2 not done what it said it was going to do but also that it was its fault that A had not got accommodation on grounds of a SLD.  Conversely and on the Complainant’s own evidence as given by their Advocate, Ms D with reference to her contemporaneous notes, in early March 2013, A’s Parents had contacted her because School 2 would not sign the forms.  As per Ms D’s notes of her telephone conversation with Mr F on 19th March 2013, he could not have been clearer as to the reason why he would not sign the forms.  He had explained the requirements and that he did not wish to stake his reputation by breaking the rules and certifying A as having a SLD when there was no evidence of same.  Furthermore, it was the School’s case that its position had been tabled from the outset at meetings in early January when a SLD had been mentioned.  Therefore, the School’s position had been very clear throughout and is totally defensible. 

5.12 Counsel also referred to the disconnect between the expectations of A’s Parents and School 2 in two respects. Firstly, A’s Parents contended that A was transferring to mainstream classes when the correspondence unequivocally confirmed that their request was a transfer to the SEN Unit.  Secondly, the agreement was that there would be an observation period and no decision had been made regarding A undertaking the Junior Certificate examinations as expressly acknowledged in their correspondence which they neither believed nor wanted to happen.  Overall, it was contended that insofar as there are conflicts of evidence, School 2’s position has been supported and corroborated on their own evidence.  Furthermore, the subsidiary allegations arising in the course of the hearing including allegations against Mr F that he had said the School was about the collective as opposed to the individual are untrue and amounted to a form of colour which had been added by A’s Parents owing to the height of feeling.

5.13 It was further submitted that there was no evidence to support the assertions made against School 2 and Mr F in the letter of complaint dated 29th May 2013 to the Board of Management and copied to the Minister for Education and Skills, another Educational Representative Body and a Disability-related Charity and the letter of 30th May 2013 from the Disability-related Charity to the Board of Management. In particular, there was a bald statement that Mr F had not supported A because he would not sign the RACE forms despite numerous requests to do so and that everyone who had been contacted including NEPS and the SEC were all of the view that it was Mr F’s non-cooperation that led to A not getting accommodation sought.  It was submitted that this was an untrue, unfair, unwarranted and egregious assault on Mr F, totally unsupported by the facts and worse still, clearly rebuttable by Ms D’s own notes.

5.14 Objection was also taken to the complaint of victimisation extending to School 2’s reaction to the Section 29 appeal on the basis that it was outside the scope of the ES3 Complaint Form. The victimisation complaint was predicated entirely upon the letter of 5th June 2013 in response to A’s Parents’ letter dated 29th May 2013 to the Board of Management (by which time they had also received the letter from the Disability-related Charity).  In this respect, School 2 refuted that this was a threat of litigation against A or that A’s Parents had been forced to withdraw her from the School because of the threat of litigation.  The letter had in fact indicated that Mr F would have to take his own legal advice given the scope of the complaints and the third parties to whom the letter was copied.  In fact, nobody had threatened or commenced litigation against A and/or her Parents and there was no adverse treatment of A to be found.  On the contrary, the Board of Management for School 2 had written to A’s Parents on several occasions inviting them in for a meeting with the School which they ignored until they withdrew A on 7th August 2013.  It was also apparent from the evidence that they had decided to move A before this letter had issued, contrary to their evidence that the letter had anything to do with this decision. 

5.15 It was further submitted that the complaint to the media was based upon an unfair, unwarranted and untrue allegation that Mr F was the only principal in Ireland who had treated a Down Syndrome child in the manner alleged by A’s Parents. Furthermore, there was also no evidence to support A’s Parents contention that the intended broadcast had been improperly stymied by the Respondents.  The already troubled situation between School 2 and A’s Parents had been aggravated by Official X’s unwise and mistaken interventions made no doubt for the best of reasons.  Even at the time of the hearing, it has been difficult for A’s Parents to see beyond his letter written on official headed paper stating that it was Mr F’s fault that A did not get the accommodation sought.  It was also uncontroverted that he had asked Ms G off the record that she just sign the form and make it all go away.  In fairness to the SEC, once Official X’s letter was brought to the attention of his superiors, a correction immediately issued setting out a very clear explanation of the situation supporting School 2 and upholding its position.  Whilst one can understand the basis of the attacks on School 2, they were still unwarranted.  Reliance was also placed upon Skelly -v- The Board of Management of Greenhills School DEC-E2013-80 as being authority for someone being subject to a complaint being entitled to assert their rights regarding same. 

5.16 In summary, it was submitted that (1) there is no case of discrimination or victimisation against School 2; (2) on any analysis of reasonable accommodation, School 2 and the SEC went well beyond anything that might reasonably be expected of them under any of the legal tests and (3) a core conflict of evidence, the main one being whether Mr and Mrs B knew what School 2 was doing can only be resolved in the School’s favour. Furthermore, the depth of feeling and emotion in the instant case cannot grant the reliefs sought.  Finally, the Judgment in Cahill does not change the obligation to do everything that is reasonably possible within the parameters and responsibilities of a school which do not extend to disregarding the RACE guidelines and both School 2 and the SEC had gone above and beyond.

Submissions on behalf of the Second-named Respondent and/or the SEC

5.17 In addition to written submissions made on behalf of the Second-named Respondent, Counsel made oral submissions in the context of the complaints as they were presented and the applicable law. The written submissions set out a chronology and factual background in line with the evidence adduced. 

5.18 It was submitted that the most fundamental point to be made in this case was the fact that this is a claim against School 2 and the Department of Education and Skills and not a claim against the State Examinations Commission (SEC). Therefore, any complaint or finding of discrimination cannot arise from any of the actions by the SEC or from any actions by any individuals acting for or on behalf of the SEC because it is not a party.  In this respect, Counsel outlined the relevant statutory provisions under the Education Act 1998 (as amended), being the primary Act that regulates education in Ireland.  The functions of the Minister for Education and Skills are contained in Section 7 of that Act including an obligation to ensure, subject to the provisions of the Act, that there is available to each person resident in the State, including persons with a disability or other educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of each person.  It is also a function of the Minister to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students including students with a disability or other special educational needs and their parents as considered appropriate.  Support services as defined under Section 2 of the Act include Certificate examinations within Part VIII.

5.19 Section 51 of the Education Act 1998 permits the Minister to make Regulations that he/she considered appropriate for the effective conduct of the examinations, to appoint a person or a body of persons to advise him/her on any matter relating to the examinations, or to supervise or review any part of the conduct of examinations including appeals by candidates against the results of examinations. It is under those powers that Statutory Instrument 373 of 2003 – State Commissions (Establishment) Order 2003 establishing the SEC has been published by the Minister for Education and Skills.  Specifically, Article 3 provides: “There shall stand established on the establishment day a body to be known as the State Examinations Commission, which shall perform the functions conferred on it by or under this Order.”  Article 6 provides: “The functions of the Commission shall be to (a) organise the holding of examinations, (b) ensure the preparation of examination papers and other examination materials, (c) determine procedures in places where examinations are conducted including the supervision of examinations, (d) make arrangements for the marking of work presented for examination, (e) issue the results of examinations, (f) determine procedure to enable the review and appeal of results of examinations at the request of candidates, charge and collect fees for examinations and apply such monies to the carrying out of its functions, and designate places where examinations may be held.  (2) The Commission shall have all such powers as are necessary for or are incidental to the performance of its functions under this Order.”  There is also provision for the appointment of members by the Minister, appointment for particular terms of office and appointment of a chief executive who is an employee of the SEC and not the Department of Education and Skills.  Whilst they have to report to and provide information to the Minister, there is no provision that the Minister has to direct control of the SEC. 

5.20 A Scheme of special arrangements (reasonable accommodation) has formally operated within the State examination schemes in Ireland since 1994. At the material time, it was operated by three Circulars issued by the Department of Education and Skills, being S40/94, S11/00 and S70/00.  As outlined by Ms H, the RACE Scheme underwent significant revision and amendment in 2016-17.  In relation to the RACE Scheme applicable at the material time in 2013, Circular S40/94 established that the special arrangements were intended for candidates “who would have a difficulty in communicating what they know to an Examiner because of a physical disability, including visual and hearing impairments, or a specific learning difficulty”.  It also stated that the arrangements were intended: “(a) to remove, as far as possible, the impact of the disability on the candidate’s performance and thus enable the candidate to demonstrate his/her level of attainment and (b) to ensure that, while giving candidates every opportunity to demonstrate their level of attainment, the special arrangements will not give the candidates an unfair advantage over other candidates in the same examination.”  At the material time, a wide range of accommodations could be approved for students, depending on whether they met certain eligibility criteria.  Additionally, schools could authorise certain additional accommodations without recourse to the SEC, based upon their knowledge of a student and the best interests of a student.  It was not put in issue that the principles that underpin the RACE Scheme are based upon best international practice and are similar to widely accepted international principles that underpin arrangements in other jurisdictions with broadly similar disability rights legislation to that in Ireland.  All such schemes focus on the need to remove barriers to accessing the assessment, while retaining the need to assess the same standards of achievements as apply to all other candidates.  For this reason, a distinction is made between access skills (not the focus of the assessment but necessary to engage with the assessment process) and target skills (measures of the extent to which a candidate had achieved the specified study objectives). 

5.21 At the material time and as outlined by Ms H, the administration of the RACE Scheme was guided by an Expert Advisory Group Report from 2000 to the Minister for Education and Science, emanating from a discussion paper published in May 1999 and the recommendations made therein. The policy in relation to accommodations for State examinations was devised by the SEC in consultation with NEPS based upon the recommendations of the Expert Advisory Group.  A Framework of Principles to be applied to the RACE Scheme was published and circulated to secondary schools.  The RACE Schemes and guidelines for the Junior and Leaving Certificate examinations are also published on annual basis.  As such, the SEC has responsibility for the establishment and management of the RACE Scheme.

5.22 The recommendations of the Expert Advisory Group were given effect to by Circular S11/2000 and the RACE Scheme was further extended under Circular S70/2000. For the first time, provision was also made for students with a general learning difficulty and recognised that students with an intellectual disability could also have a SLD.  This was given effect by Section 4 of Circular S11/2000 which stated: “Applications will now be considered where it can be established that a student whose general intellectual ability is below the average range also has a more specific learning difficulty.  Applications will be required to attest to the existence of a specific learning difficulty not attributable to the student’s general intellectual ability.”  This policy change allowed students with a general learning difficulty to have access to readers, spelling and grammar waivers and other supports provided that they were otherwise eligible under the criteria applying to students with a SLD as expressly provided for in the 2013 Junior Certificate Reasonable Accommodation Guidelines.  For the purposes of RACE, the definition of a specific learning difficulty is one that relates to specific difficulties in the areas of reading, writing and/or spelling as defined within the 2013 Guidelines.  This required evidence of a specific learning difficulty (SLD) and “attainments at a standard score of 85 or below in a standardised reading test and evidence of difficulty reading continuous text e.g. word reading accuracy error greater than 7% or word reading rate (words per minute) less than 90 words per minute.”  A specific learning difficulty may be indicated where there is “(a) Marked failure to achieve expected levels of attainment in basic skills such as reading and writing (b) A history of such failure not related directly to factors such as poor attendance, poor motivation or problems in social interaction which may affect attainments and (c) the observed level of difficulty is inconsistent with the candidates ability as demonstrated in knowledge of course content and knowledge of other areas of the curriculum.”  The regulation of the RACE Scheme is intended to safeguard the integrity of the examination by ensuring its status as an objective measure of achievement in line with the requirements laid down by the syllabus and marking scheme.  The issue has traditionally been seen one of accommodating access to the papers and communication of responses rather than compensation for lack of skill or knowledge.  The focus of the RACE Scheme is on the need to assess the same underlying skills and competencies as are assessed for all other candidates and to apply the same standard of achievement as apply to all other candidates.  Hence reasonable accommodations are not intended to compensate for a possible lack of achievement arising from a disability or to compensate for difficulties arising from a candidate’s general intellectual functioning. 

5.23 There is no issue that as a person with Down Syndrome, A has a disability within the meaning of the Equal Status Acts. However, at that material time, the fact that a student had a general learning difficulty such as Down Syndrome did not, in and of itself, confer any eligibility for supports under the RACE Scheme.  Within the RACE Scheme, students with a general learning difficulty including Down Syndrome could only be provided with a reader if they met this eligibility criteria and also had a SLD as defined for RACE.  The role of a reader for Junior Certificate examinations is confined to reading questions to a candidate.  A reader may not provide further explanation of the questions nor re-phrase questions or use simplified language in order to assist a candidate in their comprehension as this would amount to improper assistance for the candidate and risk the integrity of the examinations system. 

5.24 Counsel further outlined the statutory basis for the National Educational Psychological Services (NEPS) confirming that it operates under the auspices of the Department of Education and Skills and does not have its own separate legal personality. As per the original ES3 Complaint Form, there is no complaint against any action undertaken by NEPS and evidence was given by NEPS solely because it was best placed to give evidence as to certain factual matters.  The core of the complaint made on behalf of A is that School 2 did not assist with completion of the RACE forms and she did not get a reader.  As evident from the letter accompanying the ES3 Form, no complaint was made against the RACE Scheme itself.  This was raised as an issue subsequently without any evidence to support such a contention. 

5.25 The fundamental position of the Second-named Respondent is that there was no prima facie discrimination in the instant case. The RACE Scheme was published and the criteria applied to every student who made an application for reasonable accommodation.  Those who met the criteria were granted accommodation and those who did not meet the criteria were not granted the accommodation.  There was a distinct difference between a policy argument that everything should be thrown at someone in A’s position to assist her with undertaking the Junior Certificate examinations and the legal definition of discrimination under the Equal Status Acts.  However, the two appear to have been conflated by the Disability-related Charity.  The implementation of the RACE Scheme in the instant case did not amount to discrimination.  There was no evidence that students who did not meet the criteria were granted accommodation and specifically, no evidence that students without a SLD were granted access to a reader for their examinations.  Aside from the position maintained by A’s Parents, it was common case that if a student is not certified as having a SLD as defined for the purposes of the RACE Scheme, then he or she is not eligible for a reader.  It was also common case that A does not have a SLD for the purposes of RACE as confirmed in the expert Reports.  The height of the case being made in this respect by A’s Parents is Ms C’s Report.  Ms C accepted that she had carried out a very limited assessment on language for A and had not undertaken any reading assessments.  Furthermore, the language assessment for A did not disclose a SLD for the purposes of RACE.  Ms D also accepted that she knew that A did not have a SLD for the purposes of RACE and she knew this was a requirement prior to the 2013 Junior Certificate examinations.  It was also her evidence that she had explained this to A’s Parents at the material time of completing the forms in March 2013 in conflict with their own evidence.  A’s Parents had ample opportunity to have A assessed if they so wished prior to the 2013 Junior Certificate with a view to obtaining any evidence that would have brought A within the RACE criteria.  Although three different arrangements for A to be assessed had been made, they chose not to pursue them.  It was also incorrect for A’s Parents to contend that a SLD was never looked for given the expert evidence that the tests used to identify a SLD were administered during A’s psychological assessments and the attainment levels were in line with expectations.  Therefore, if A had a SLD, it would have been identified.

5.26 Turning to the application process for RACE for the Junior Certificate examinations in 2013, it was submitted that the guidelines to schools in order to help them determine eligibility of a candidate for reasonable accommodation were very clear. At the material time, the SEC operated a simplified devolved application model whereby the SEC accepted the school’s endorsement on an application form as sufficient evidence of the relevant criteria to enable the SEC to confirm an accommodation.  By signing an application form on grounds of a SLD, the SEC required a school to be satisfied that the student had a SLD in addition to any learning difficulty that might be present and to certify accordingly.  Decisions in relation to individual applications for RACE for the Junior Certificate are notified to the student’s school who are thereafter required to communicate the outcome to the parent/s or guardian/s.  Where a school, parent or student is dissatisfied with any aspect of the SEC decision on a RACE application, an appeal may be lodged with the Independent Appeals Committee and/or the Ombudsman for Children as occurred in the instant case.  Every appeal is considered in accordance with the Framework of Principles established by the Expert Advisory Group and all available information is considered.  The rationale for decisions at both application and appeal stages were available on request.

5.27 On the rare occasions where schools were not clear about eligibility, at the material time the SEC acted in the interests of children by facilitating an examination and consideration of those applications instead of simply refusing them as being invalid. This was in order to do its best in terms of assisting parents who have a child with a disability.  To that end, the SEC assessed all of the evidence and sought further evidence but it did not establish the existence of a SLD and A’s eligibility for a reader.  However, eligibility was established for the other accommodations on grounds of physical difficulty/ies and ultimately A was granted four out of the five accommodations sought.  It was not open to the SEC to say: “Well, we’d like this child to have a reader; we’re just going to give it anyway.”  The Independent Appeals Committee arrived at the same conclusion.  The fact that A did not undertake a further assessment does not amount to discrimination.  It was accepted that the letter of 20th May 2013 issued by Official X was unfortunate and his interventions in the process were those of someone acting with a misguided sense of trying to help.  The letter ought not to have issued and was immediately withdrawn by his superiors in the SEC.  However, the issuing of this letter does not amount to discrimination.

5.28 Counsel then addressed the consequences of A not being granted a reader for her Junior Certificate examinations in 2013. It was submitted that the assertion by A’s Parents that her education was fundamentally undermined as a consequence of not sitting those exams was a strong and emotive statement not borne out by the facts.  In her email of November 2012, Mrs B indicated that she actually wanted A to sit the Junior Certificate in 2014 as she would have two years to prepare for it.  There were also various suggestions that A could have sat it over a number of years as frequently happened for students with disabilities.  Ultimately, A had very successfully sat the Junior Certificate at School 3 without a reader in 2014, a fact that had not been disclosed in earlier legal submissions.  This is an important point because at the outset, Mr and Mrs B had said that A’s two main goals were to sit the Junior Certificate and go to college, being two very worthy goals that she achieved.  There was no evidence to say that had A had a reader that she would have performed to her fullest potential or done any better.  In any event, it was not about results as confirmed by A’s Parents, it was that life moment.  The fact that A was able to sit the exams goes to show that she was able to achieve that without a reader.

5.29 Counsel then addressed the relevant statutory provisions for the purpose of the complaint against the Second-named Respondent, being Sections 3, 4 and 5 of the Equal Status Acts. As confirmed in the Supreme Court Judgment in Cahill -v- Minister for Education & Science (2018) 2 IR 417, prohibition on discrimination contained in Section 5 applies to discrimination within the meaning of Sections 3(1) and 4(1) and Section 4 of the Acts does not constitute a separate cause of action.  Therefore, it is necessary to firstly consider whether there is discrimination within the meaning of Sections 3(1) and 4(1) which would be prohibited by Section 5(1) of the Acts.  In this respect, it was submitted that there was no evidence to establish that A had been treated less favourably than another person is, has been or would be on the ground of disability as required by Section 3(1).  Conversely, she had been treated in the same manner as any other student whose application for RACE had been made to the SEC without being signed by the school to certify the grounds for same i.e. the application was considered on its merits, administered in accordance with the Framework of Principles and assessed in accordance with the eligibility criteria that existed at the time that the application was made.  Each case is assessed, as was the Complainant’s, in light of the specific facts that arise and as against the eligibility criteria in place for that year.  It is and was only open to the SEC to apply the guidelines, assess the applications received and administer a fair and reasonable scheme.  The Complainant was refused a reader by reason of not meeting the eligibility criteria as there was no evidence to support the contention that she presented with a SLD.  She was assessed in the same manner as all other applicants for reasonable accommodation under the RACE Scheme for the Junior Certificate in 2013.  Hence there was no prima facie evidence of discrimination occurring within the meaning of Section 3 that would be contrary to Section 5 of the Acts.

5.30 In Cahill, the Supreme Court (Laffoy J.) expressed the view that the requirement to do “all that is reasonable” would import “the concept of proportionality into s. 4(1) subject, however, to the cost limitation in s. 4(2) and subject also to the provision of special treatment or facilities being expressly limited to enabling the disabled person to avail of the service or to do so without undue difficulty.” This requires a balance to be drawn between the needs of a person with a disability and the manner in which those needs have been met in the provision of the service.  It is also of note that the overall provision of the service must also be considered along with the interests of third parties.  The Act does not go so far as to say that there is an absolute requirement to provide accommodations to persons with disabilities, rather to do all that is reasonable to provide accommodations.  Likewise in the instant case, the establishment and the operation of the RACE Scheme at the material time was proportionate to its ends.  The eligibility criteria based upon the recommendations of an Expert Advisory Group was aimed at facilitating students with a disability in taking State exams while also being fair to all students sitting examinations and maintaining the integrity of the examination system.  In assessing the reasonableness of the actions of the Second-named Respondent and the SEC, it is appropriate to consider the impact on other students and the overall aim of maintaining the integrity of the examination system.  A was treated in the same manner as every other student and the criteria which was not under challenge was applied to her.  There was a reasonable examination of her application.  There was an opportunity to submit further information which was not taken up.  The Complainant was not granted a reader as she did not meet the eligibility criteria for a RACE application on grounds of a SLD and not by reason of the fact that she had a disability.  In the circumstances, the Second-named Respondent and the SEC have done all that is reasonable to accommodate the needs of A as a person with a disability and therefore no discrimination within the meaning of Section 4 of the Acts has occurred.  Regarding the provision by Section 4 that “… if without special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”, it was submitted that it had not been established that it would be impossible or unduly difficult for A to sit the examinations without a reader and it was the undertaking of the exams as opposed to undertaking them to the best of one’s ability that applied.  Such accommodations were in place to assist students with accessing exams on as equal a playing field as possible and to try to accommodate for a disability that would otherwise disadvantage them. 

5.31 It was submitted that the High Court Judgment in Deehan -v- State Examinations Commission (2016) IEHC 213 relied upon by A’s Parents was irrelevant as it referred to matters unrelated to the Equal Status Acts. It was further submitted that there was no basis for any complaint of victimisation against the Second-named Respondent or the SEC who are strangers to any exchange of correspondence between A’s Parents and School 2.  Objection was also taken to the introduction of any new basis for a victimisation complaint which was outside the scope of the ES3 Complaint Form.  Finally, Counsel wished A the best for the future on behalf of the Second-named Respondent, the SEC and NEPS.

5.32 By way of reply, Mrs B questioned the use of the Leaving Certificate procedure to assess a Junior Certificate RACE application and also made the point that Official X had written the letter not just based upon his interactions with A’s Parents but also on his direct dealings with School 2. Regarding whether or not the Second-named Respondent had been correctly named, A’s Parents maintained that they were entitled to expand these complaints based upon the information received in the course of the case.  

6. COMPLAINTS PROCEDURES & PRELIMINARY OBJECTIONS AS TO JURISDICTION

6.1 Having heard the substantive evidence, it is necessary for this Equality Officer to determine a number of preliminary objections as to jurisdiction before investigating the substantive issues raised. Mr and Mrs B confirmed that they were maintaining the original complaints against the Respondents as contained in the ES1 Notification and/or ES3 Complaint Forms.  The ES1 Notification named both School 2 and the Department of Education and Skills and included their respective addresses under the heading: ‘name and address of the “respondent”, the person or organisation who the complainant thinks discriminated against them and treated them unlawfully.’  Under the heading ‘I think that you have/may have treated me unlawfully by:’, the boxes ‘discriminating against me’, ‘failing to provide me with “reasonable accommodation”’ and ‘victimising me’ were ticked.  Under the heading: ‘I think that you did so on the following grounds(s):, ‘ family status’, ‘disability’ and ‘victimisation’ were ticked.  Under the heading, ‘Details of my complaint are as follows’, it was stated: “Please refer to the Board of Management letter sent by (Mr and Mrs B) for dates and time of complaint.”  Under the heading: ‘I think that this involved me being treated less favourably than others (on the ground(s) mentioned above) in the following way:’ it was stated: “The Complainant has been treated less favourably than others in a similar position on the grounds set out at Section 2 as a result of the failure on the part of the Respondent to provide the Complainant with “reasonable accommodations” for the purposes of sitting her Junior Certificate Examinations during 2013.  In addition, the manner in which the Board of Management handled the complaint made directly to the Board of Management amounted to a victimisation of the Complainant.  Further particulars in relation to these claims will be adduced at the hearing of this action.”  This Notification was signed by A and sent by registered prepaid post to School 2 on 3rd October 2013 as per confirmation receipt.  A’s Parents also emailed the Equality Tribunal on 10th December 2013 stating that they were forced to withdraw A from School 2 owing to the threat of litigation from Mr F and the Board.

6.2 By letter dated 29th October 2013, the Board of Management for School 2 sent a lengthy response (also referred to as an ES2 Form) to the Complainant’s ES1 Notification. Under the heading ‘Appropriate Respondent’, it was contended that School 2 was not the correct Respondent in circumstances where the State Examinations Commission (SEC) was responsible for the administration of reasonable accommodation for State examinations and stating: “The State Examinations Commission (SEC), which is a statutory body set up under Statutory Instrument number 373/2003, is a non-departmental public body which acts under the aegis of the Department of Education & Skills.”  It expressed Mr F’s concerns regarding the manner in which the SEC had processed A’s application for reasonable accommodation with reference to the SEC’s confirmation that the letter of 20th May 2013 from Official X (stating that the reason that A did not receive the reasonable accommodation was that Mr F had refused to sign the application form) had not been sanctioned, did not reflect the official SEC position and should not have been sent.  In particular it stated: “The SEC letter of the 17th October 2013 further confirms that the reason for the non-provision of certain reasonable accommodations (Reader & Spelling/Grammar Waiver) in this case was that Awas “ineligible to receive these accommodations within the criteria that apply.  These criteria are set by the SEC and schools have no power to vary or change them.  The specific criterion in issue in this case is that applicants for the reasonable accommodations in question must have a specific learning difficulty in addition to any learning difficulty that might be present.  At no stage in this case was mention made nor evidence given of A having any specific learning difficulty.  At all times, all reports etc referred to A having a general learning difficulty.  When the Board wrote to (Mr and Mrs B) on the 5th June we asked for clarification as to what the nature of A’s specific difficulty was.  We received no response to this letter.  As highlighted by the SEC themselves, the NEPS opinion in May of this year gave no evidence of a specific learning difficulty.  While we do not wish to be taken to be speaking for the SEC, their letter of 17th October 2013 does make clear that the existence of a specific learning difficulty is a pre-condition for the provision of the type of reasonable accommodation sought and where, as here, such a specific difficulty has not been demonstrated, their criteria do not allow for the provision of reasonable accommodation…  Part of your complaint appears to be that the Principal did not sign the RACE application form to confirm that A had a specific learning difficulty.  In light of the evidence provided to the school, it would appear that any declaration by him to the effect that A did have such a learning difficulty would have been fraudulent.  The Board also feel that asking him to sign such a declaration would have been inappropriate and improper.  In light of all the above, we would therefore suggest that it would be more appropriate and more productive that you address your complaint directly to the State Examinations Commission as the matters you are raising are not matters in respect of which the school had or has any power.”  The letter also raised an issue with the timing of the ES1 Notification which was dated 1st October 2013, contending that it was not sent “within two months of the incident” complained about as required under Section 21(2) of the Equal Status Acts or indeed the four month period required for the purposes of an extension of time.  The letter also noted that A’s Parents had declined a meeting on 19th June 2013 with School 2 before withdrawing A from the School on 7th August 2013.  The allegation of victimisation was also strongly refuted particularly as A was last in the School on 29th May 2013 and the lack of detail made it impossible for the Board to respond to such a charge.  Finally, the letter confirmed that any complaint would be vigorously defended.

6.3 An ES3 Complaint Form signed by A was referred to the Equality Tribunal on 13th November 2013 naming Solicitors as acting on her behalf. Under the heading: ‘Person / organisation / company you are complaining about’, School 2 and the Department of Education & Skills were named.  Under the heading ‘I say that I was discriminated against because of my:’, the grounds ‘disability’ and ‘family status’ were circled.  Under the heading: ‘I say that the respondent treated me unlawfully by:, ‘Discriminating against me’, ‘Victimising me’ and ‘Failing to provide me with “reasonable accommodation” were circled.  In the ‘Details of complaint’ section also requiring ‘Date you last experienced discrimination (if ongoing please explain in box below’ and ‘Please set out briefly in your own words what happened, when it happened and where it happened, it stated: “Please refer to Board of Management letter enclosed for details of what happened, when it happened and where it happened.”  The letter of 29th May 2013 from Mr and Mrs B to the Board of Management of School 2 and copied to various third parties including the Minister for Education and Skills amongst others as outlined above was attached to the Complaint Form.

6.4 At the material time, issues regarding compliance with the notification requirements and time limits for referral of a complaint under Section 21 of the Equal Status Acts to the Equality Tribunal were determined as preliminary issues as expressly provided for before the substantive complaint was heard. During an exchange of correspondence with the Second-named Respondent about whether it had been correctly named, it came to the attention of the Secretariat for the Equality Tribunal that whilst the ES1 Notification had named both School 2 and the Department of Education and Skills, it had not been sent to the Second-named Respondent.  Accordingly, this matter was delegated to an Equality Officer to deal with this matter as a preliminary issue.  In this respect, Section 21(2) & (3) of the Acts provide for the notification requirements, the enlargement of time from two months to four months if reasonable cause is shown and the dispensation of notification in exceptional cases as follows: “(2) Before seeking redress under this section the complainant- (a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of- (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act, and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.  (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.  (3)(a) On application by a complainant the Director or, as the case may be, the Circuit Court may- (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including- (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”  Section 21(7A) of the Acts provides for an appeals process and finality in the absence of an appeal as follows: “Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Director specifying the grounds of appeal.  (b) On the appeal the Court may affirm, quash or vary the decision.  (c) No further appeal lies, other than an appeal to the High Court on a point of law. (d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Directoron such an application until- (i) the period of 42 days mentioned in paragraph (i) has expired, or (ii) any appeal against it has been determined, whichever first occurs.”

6.5 In the instant case, as the maximum extension period of four months had elapsed, the Complainant was invited to apply for a dispensation of notification to the Second-named Respondent and the Second-named Respondent was likewise afforded an opportunity to make submissions regarding same. When the Complainant’s Parents responded directly to the Equality Tribunal, Solicitors named on the ES3 Complaint Form wrote confirming that the Complainant’s Parents had submitted the ES3 Complaint Form and wanted to correspond directly with the Equality Tribunal and Solicitors were being retained as advisors to assist at the hearing if required.  By letter dated 13th February 2014, the Complainant’s Parents submitted: “We wish to leave the complaint standing with the Department of Education and we apologise for our error in relation to the non sending (of) notification regarding this complaint to the Department of Education and Skills.  It was our understanding that the other named respondent i.e. (School 2), would inform the Department of Education and Skills as they are the State body who had and continues to have an adverse effect on our daughter’s education.”  They applied for a dispensation of the notification requirement to the Second-named Respondent on the basis that (1) the ES1 Notification naming both Respondents was sent to School 2 in the understanding that School 2 would inform the Department of Education and Skills of the complaint; (2) they understood that their letter of 29th May 2013 to the Board of Management of School 2 outlining their concerns had been notified to the Second-named Respondent and (3) from the letter of 29th October 2013 from School 2, they were led to believe that the Second-named Respondent was already aware of the complaint and “Finally we hope you can appreciate that we as non-professionals are new to this experience and we thought that by filling in the ES1 forms that everyone involved would be notified accordingly.”  In response, the Second-named Respondent submitted to the former Equality Officer that it had not received the notification within the required time, that the SEC was the correct Respondent and “The Department does not wish to dispense with the notification requirement in this case since this matter is for the complainant and the SEC.” 

6.6 Applying Section 21(3)(a) providing for the dispensing of a notification in exceptional circumstances and taking into account the factors provided by Section 21(3)(b), the former Equality Officer dispensed with the notification requirement in respect of the Second-named Respondent by Direction DIR-S2014-001 dated 2nd July 2014. In particular, the former Equality Officer held that where the Second-named Respondent had been on notice of the Complainant’s grievances (copied with the letter of 29th May 2013) and was furnished with the complaint on 17th December 2013 five weeks after receipt, no prejudice arose.  In correspondence from the Equality Tribunal accompanying the Direction, the Parties were informed of the right to appeal to the Circuit Court within 42 days thereof pursuant to Section 21(7A) of the Equal Status Acts.  By letter dated 8th August 2014, the Second-named Respondent confirmed to the Secretariat of the Equality Tribunal that it did not wish to appeal the Direction.

6.7 At the substantive hearing, the Second-named Respondent sought to revisit this issue and/or the reason/s as to why this Equality Officer is bound by Direction DIR-S2014-001. As set out aforesaid, Section 21 of the Equal Status Acts makes clear provision for issues regarding compliance with the notification requirements and time limits under Section 21 to be determined by way of preliminary issue with the right of appeal to the Circuit Court and on a point of law to the High Court.  In circumstances where the Second-named Respondent was afforded the opportunity to appeal Direction DIR-S2014-001 and confirmed in writing that it did not wish to appeal and no appeal was brought, upon the lapsing of a 42-day period after issuing, the Direction became effective pursuant to Section 21(7A)(d)(i).  For the avoidance of any doubt, I concur with and adopt the findings made in Direction DIR-S2014-001. 

6.8 The First-named Respondent also maintained that the complaints against School 2 were out of time in so far as the ES1 Notification of complaint was outside the required two-month limit (and if extended), the four-month limit as required by Section 21(3) of the Equal Status Acts outlined above. It was not asserted that the School was prejudiced by any delay in defending these complaints but rather that this Equality Officer should make a formal ruling as a matter of jurisdiction.  In response, the Complainant’s Parents contended that the discrimination was ongoing and referred to the Tribunal’s latitude to amend for the purpose of any required orders.  Based upon the wording of the original ES1 Notification, ES3 Complaint Form and the evidence adduced on behalf of A, I am satisfied that the core of the complaint against the First-named Respondent is the fact that A was not granted a reader to undertake her Junior Certificate at School 2 in 2013 because it did not certify her as having a SLD and hence denied her reasonable accommodation.  I am also satisfied that this complaint crystalised on Friday 31st May 2013 when the Complainant’s appeal against the refusal of a reader was declined by the Independent Appeals Committee within the SEC.  Based upon A’s Parents contention that they were forced to withdraw A from School 2 as a consequence of the response of 5th June 2013 from School 2, the outermost date in relation to any complaint of victimisation crystalised upon A being withdrawn from School 2 on 7th August 2013 as being their last interaction.  Although the victimisation complaint flows from School 2’s reaction to A’s Parents’ grievance about the alleged failure to provide reasonable accommodation, these are distinct acts and standalone complaints under the Acts.  Accordingly, I find that the complaint of a failure to provide reasonable accommodation is outside of the maximum four-month notification time limit whilst the victimisation complaint is within time.  In circumstances where School 2 was on notice of the nature of the Complainant’s complaints from the end of May 2013 and there has been no prejudice in its ability to deal with them, I am formally dispensing with the requirement for a notification to School 2 in accordance with Section 21(3)(a) of the Acts, taking into account the factors to be considered under Section 21(3)(b), being the extent to which the respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the ability to deal adequately with the complaint. 

6.9 The First-named Respondent also maintained that the complaints of discrimination which related to events in January, February and March 2013 predated the permitted six-month reference period as provided by Section 21(6) of the Equal Status Acts (extendable to twelve months if reasonable cause is shown). Objections were also made to the introduction of complaints pertaining to A’s transfer to School 2.  It was correctly submitted that only when discriminatory action is found to have occurred within the six month period (save for an extension of time) prior to the referral of a complaint, that incidents of alleged discrimination falling outside that time period can be considered, being the approach adopted in Skelly -v- The Board of Management of Greenhills School DEC-E2013-80.  Section 21(6) sets out the applicable time limits and provisions for extending time as follows: “(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence. (b) On application by a complainant the Director of the Equality Tribunal (now the WRC) or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”  Section 21(11) provides for ongoing acts of discrimination as follows: “For the purposes of this section prohibited conduct occurs- (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period.”  Based upon the wording of the original ES1 Notification, ES3 Complaint Form and the evidence adduced on behalf of A, I am satisfied that all of the allegations made against the First-named Respondent as occurring in January, February and March 2013 relate to the RACE application for A and alleged failure to provide her with reasonable accommodation and would fall within remit of Section 21(11) of the Acts in the event of being upheld.

6.10 Other complaints of discrimination introduced during the hearing relating to A’s transfer to School 2 including the Section 29 appeal against School 2’s initial refusal to enrol A for the 2013 academic year and whether she was being transferred on a mainstream basis or not were not referenced in the ES1 Notification, ES3 Complaint Form or attached letter of 29th May 2013. At the hearing, it was also contended for the first time that the fact that A was not afforded a reader when she underwent her Junior Certificate at School 3 in 2014 amounted to victimisation by the Second-named Respondent and/or the SEC.  In County Louth Vocational Educational Committee v Equality Tribunal [2016] IESC 40, theSupreme Court confirmed that there is nothing sacrosanct about using the official forms provided for the making of a valid complaint to activate jurisdiction and indeed it saw no reason why any method of written communication and arguably a verbal complaint could serve that purpose.  However, whether a complaint has been made within the requisite reference period (being six months extendable to twelve months if reasonable cause is shown) goes to jurisdiction and is a matter to be determined by the decision-maker concerned.  Having examined all of the materials furnished to the Tribunal on behalf of the Complainant within the maximum twelve-month period together with the evidence and submissions on behalf of the Complainant, I am satisfied that these are entirely new and separate matters and are not so inextricably linked to the nature of the original complaints as to constitute a continuing act and nor do they relate to a provision extending over a period so as to fall within Section 21(11) of the Acts.  In the course of the hearing, A’s Parents sought to extend their compliant of victimisation against the First-named Respondent to the manner in which they felt they had been treated by School 2 as a consequence of submitting a Section 29 appeal against the initial refusal to enrol A.  Even if the act of submitting a Section 29 appeal fell within the definition, it is well outside the scope of these complaints.  At the hearing, Mr and Mrs B also raised complaints on their own behalf by way of their association with A on the grounds of disability and family status when in fact only A was named as the Complainant in the ES1 Notification and ES3 Complaint Forms.  No express objection to this was taken by the Respondents.

7. FINDINGS & CONCLUSIONS

7.1 In addressing these complaints, it is firstly necessary to set out the relevant legal provisions and case law:

• It is common case that as a person with Down Syndrome, the Complainant has a disability within the definition provided in the interpretation section under Section 2 of the Equal Status Acts. Section 2 also provides that “’discriminate’ means to discriminate within the meaning of section 3(1) or 4(1)”. 
• Section 3(1) of the Acts gives meaning to ‘discrimination' in general across a broad range of grounds and provides that discrimination shall be taken to occur “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)...” Relevant to the grounds of discrimination invoked herein, Section 3(2)(c) defines the discriminatory ground of ‘family status’ as arising in circumstances where as between any two persons “…one has family status and the other does not or that one has a different family status from the other (the “family status ground”);  Section 3(2)(g) defines the discriminatory ground of ‘disability’ as arising in circumstances when as between any two persons “…one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”; and Section 3(1)(j) provides that ‘victimisation’ arises when “…one- (i) has in good faith applied for any determination or redress provided for in Part II or III, (ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act, (iii) has given evidence in any criminal proceedings under this Act, (iv) has opposed by lawful means an act which is unlawful under this Act, or (v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”).  Section 3(1)(b) also provides for discrimination on any of the grounds provided within Section 3(2) by way of association as occurring “…where a person who is associated with another person-  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,”.  Section 3(2) further provides for indirect discrimination.
• As noted in Cahill -v- Minister for Education (2018) 2 IR 417, Section 4 separately elaborates on the meaning of 'discrimination' in the specific context of disability and the requirement by service-providers to provide reasonable accommodation and 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.”  As clarified in Cahill, the Second-named Respondent is subject to the requirements of Section 4(1).  Notably, a complaint of a failure to provide reasonable accommodation cannot be invoked by people associated with a disabled person as the duty only arises in respect of persons with a disability. 
• Also clarified in Cahill and as outlined in the Second-named Respondent’s submissions, discrimination under Sections 3(1) and/or 4(1) gives rise to a breach of Section 5(1) of the Acts which prohibits discrimination in relation to the disposal of goods and services and states: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” The remainder of Section 5 provides for the various limitations to this provision, none of which were invoked in the instant case. 
• Section 7 of the Acts specifically prohibits direct and indirect discrimination on any of the defined grounds by an educational establishment. Relevant to these complaints, the definition of ‘an educational establishment’ includes post-primary schools but not the Department of Education.  Section 7(2) provides: “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.”  The remainder of Section 7 provides for the various limitations to this provision, none of which were invoked in the instant case. 
• The enforcement provisions are contained in Part III of the Acts. Section 21 provides for the referral of complaints to the Equality Tribunal (now the WRC) including the notification requirements and time limits as set out in Part 6 in relation to the preliminary objections raised by the Respondents as to same.  Section 21(4) provides that an investigation into a complaint cannot commence unless at least a month has elapsed after the notification was sent if there is no reply to the ES1 Notification.
• Section 25 of the Acts provides for the investigation of complaints and Section 27 provides for the redress which may be ordered including (a) an order for compensation for the effects of the prohibited conduct concerned up to the maximum amount that could be awarded by the District Court in civil cases in contract; or (b) an order that a person or persons specified in the order take a course of action which is so specified. At the time of the referral of these complaints, the maximum monetary award was €6,384.  It had been argued on behalf of the Complainant that in the event of being successful the applicable maximum monetary award should be €15,000 as against each Respondent [as introduced by Part 3 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 and S.I. 566 of 2013 effective from 3rd February 2014] whilst the Respondents contended otherwise.  As Part 3 expressly provides that this jurisdiction increase “…shall not apply in relation to proceedings in any court instituted before the day so appointed in respect of the Part concerned or the provision concerned”, I am satisfied that the applicable maximum monetary award was €6,384.
• Section 38A of the Acts sets out the burden of proof which applies to all complaints of discrimination including victimisation and provides: “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.” As well established in case law including Mitchell -v- Southern Health Board (2001) ELR201, this requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference.

7.2 All three of the Parties herein acknowledge that the Supreme Court Judgment in Cahill -v- Minister for Education & Science (2018) 2 IR 417 defines the nature and scope of service providers’ duties towards students with disabilities under Sections 3, 4 and 5 of the Equal Status Acts.  To summarise, various accommodations including a special centre, reader and possible extra time were sought on behalf of the Appellant, Kim Cahill, for the Leaving Certificate in 2001 on the basis of her dyslexia.  These were refused on the basis of the opinion of the Department’s psychologist that her learning difficulties did not warrant same and an appeal was rejected by the Reasonable Accommodation Appeals Committee.  Ms Cahill sat the Leaving Certificate Examination without the benefit of any special arrangements.  Subsequently, her father sought to further appeal the refusal of reasonable accommodation on the basis that the process and the outcome were fundamentally flawed.  The Department responded by offering Ms Cahill a waiver in relation to assessment of spelling/grammar in language subjects.  However, her Leaving Certificate results would contain annotations that certain parts of the examination had not been assessed.  Her father appealed on her behalf against the Department’s decision regarding the waiver in so far as it related to the annotation, but an Independent Appeals Committee upheld the Department’s position.  Not dissimilar to the instant case, there had been various miscommunications between the Parties.  Ms Cahill’s father referred a complaint on her behalf to the Equality Tribunal under the Equal Status Acts, essentially complaining that this measure was discriminatory and represented a failure to make reasonable accommodation on the basis that it would reveal her disability to her future employers thus potentially exposing her to future discrimination and placing her at a life-long disadvantage.  The Equality Tribunal decided the matter in Ms Cahill’s favour.  The Respondent appealed to the Circuit Court and was successful.  Ms Cahill then appealed to the High Court on various points of law, where the decision again went in favour of the Respondent.  Amongst their findings, the Circuit Court and the High Court both ruled that the Minister for Education was exempt from the obligation to make reasonable accommodations in relation to the provision of services under the Education Acts 1998.  

7.3 Ms Cahill appealed on various points of law to the Supreme Court under Section 28 of the Equal Status Acts.  In dismissing her appeal and upholding the lower Courts’ finding that she had not established discrimination, and the Minister’s argument that the purpose of the annotation was to preserve the integrity of the examination system, the Supreme Court (Denham C.J., O’Donnell, MacMenamin, Laffoy and Dunne J.J. with separate Judgments by O’Donnell, MacMenamin & Laffoy) clarified the nature and scope of service providers’ duties towards students with disabilities under the Equal Status Acts.  In summary, it was held that as a matter of interpretation, Section 4(1) of the 2000 Act was clear and unambiguous.  As set out in the Judgment of Laffoy J., the standard of reasonableness at the heart of the Section imports the concept of proportionality.  This requires balancing the needs of the person with a disability and how those needs were met by the provision of special treatment or facilities to the extent necessary to enable that person to avail of the service, or to do so without undue difficulty, on the one hand, and the effect of such provision in the overall context of the position of the service provider on the other hand.  The interest of any third party vis-à-vis the service provider might also be a relevant factor.  In weighing the balance, as in every context in which reasonableness was deployed to delimit an obligation, an objective standard is to be applied.  It also clarified the scope and interrelationship of Sections 3, 4 and 5 of the Acts as set out above and confirmed that the Minister for Education is subject to the the provisions of Section 4.  It acknowledged the complexity of the Acts and held that they should be given a broad and generous interpretation, as the long title of the original Act “conveys that it is intended to promote equality and provide mechanisms of...remedying certain acts of discrimination”.  

7.4 Applying the aforesaid statutory provisions and case law to the evidence adduced, it is necessary to ascertain whether the Complainant has established a prima facie case of a failure to provide her with reasonable accommodation and/or discrimination against her and her family by association on the grounds of disability and family status and victimisation contrary to Sections 3, 4, 5 and 7 of the Equal Status Acts as against the Respondents requiring rebuttal.  There is no issue that the Complainant has a disability within the meaning of the Act or that the Respondents are service providers of education.  The evidence has been set out in detail and speaks for itself in terms of the regrettable chain of events giving rise to these complaints.  Owing to the strength of emotion, it was also clear that certain aspects of the facts became coloured over time.  Therefore, I do not propose reciting the facts or commenting on various actions of the Parties concerned save for dealing with the facts and legal matters in issue.

Findings and Conclusions in relation to alleged Discrimination/Victimisation against School 2

7.5 Addressing each of the alleged acts of discrimination / failure to provide reasonable accommodation and victimisation against the First-named Respondent by the Complainant in turn, I find as follows:

Allegation 1:  School 2 had misled the Complainant’s Parents in relation to the submission of the RACE application forms for A’s Junior Certificate examinations in 2013 by indicating that they would be signed and stamped by the School before submission to the SEC, when in fact that was not done. 

Findings:  There is a significant conflict in evidence between the Parties in this respect and indeed within the evidence proffered on behalf of the Complainant, A.  It was A’s Parents evidence that they were led to believe that the RACE application forms would be signed and stamped on behalf of the School thereby certifying that A had a specific learning difficulty (SLD) before being submitted to the SEC.  They further contended that they first discovered this had not been done in mid-May via Official X.  However, Ms D who was advocating for A’s Parents at the material time had contemporaneously recorded the Parties interactions regarding A’s RACE application in her ‘RACE Diary’ which confirmed a contrary position.  In particular, she had noted: “Re RACE accommodation for A for Junior Cert 2013.  In early March, parents became aware that the school expected NEPS to sign off on RACE application.  Principal felt he couldn’t make decision against advice of NEPS Psychologist and he referred application to SEC.”  Notes of further telephone conversations held between Ms D with Mr F on 7th and 19th March 2013 made it clear that he was refusing to sign the form on the basis that there was no evidence that A had a SLD and was not prepared to stake his reputation by breaking the rules.  Arising from her telephone conversation with Dr J of NEPS on 14th March 2013, Ms D was also aware of the requirement for a SLD to avail of accommodation on grounds of a SLD and was also informed of what was required within the guidelines.  A’s Parents had engaged Ms D to act as their Advocate and confirmed that they had been in constant contact throughout.  In this respect, Ms D’s various interactions on behalf of the Complainant also mirror the instructions given to her by Mrs B within their email exchanges.  It was also clear from the letter from the Disability-related Charity to the Board of Management which Ms D assisted with drafting that A’s Parents were aware that Mr F was refusing to sign the forms.  Ms D’s position was consistent with the evidence of Ms G and Mr F that on multiple occasions they had explained to A’s Parents that School 2 could not sign off on the form to certify A as having a SLD.  Therefore and on balance I prefer the latter account and although not explicitly put in writing by School 2, I am satisfied that from an early stage, A’s Parents were aware that Mr F was not signing off on the RACE application forms and the basis for same.  For the same reason, I also prefer the evidence on behalf of School 2 as to what materialised at the parent-teacher meeting and am satisfied that at that stage, it had been made quite clear to A’s Parents that Mr F could not sign off on the RACE application form for a SLD in the absence of any evidence of same.  Likewise, I prefer Mr F’s recollection of his telephone conversation with Mr B on 24th May 2013 to the effect that he would not have signed off.  Consequently, I find that there is no prima facie evidence to support this allegation.

Allegation 2:  School 2 had not provided Complainant’s Parents with sufficient guidance and assistance with completion of the RACE application forms for A as required under the RACE criteria / guidelines.

Findings:  Firstly, and notwithstanding that the SEC was the final arbiter in relation to the grant of accommodations under the RACE Scheme for the Junior Certificate in 2013, the devolved system of certification as set out in the guidelines to schools imposed certain obligations.  In addition to requiring an honest appraisal of whether a student met the criteria, the guidelines also required schools to advise and/or assist parents with completion of the RACE application forms and appraise them of the outcome. 

In this respect, the following facts are not disputed:  School 2 accepted A’s Parents’ parental choice for A to pursue the Junior Certificate examinations in 2013 notwithstanding their prior agreement to an evaluation period first and reservations as expressed.  School 2 then undertook checks to confirm whether an application for RACE had been made on behalf of A to date in circumstances where she had transferred from School 1.  Upon confirming that no RACE application had been made for A and despite it being months after the closing date of 31st October 2012, School 2 furnished RACE application forms to A’s Parents for completion.  School 2 specifically checked and sought advice from the NEPS Psychologist, Dr J to ensure that its interpretation of the last NEPS Psychological Assessment Report for A was correct and in particular, that she did not have a diagnosed SLD which could be certified on the RACE application form on grounds of a SLD.  The RACE criteria and guidelines did not permit a school to certify a student as having a SLD as defined for the purposes of RACE in the absence of same.  Mr F contacted the SEC to confirm that he could not sign the form certifying A as having a SLD and had made specific arrangements for the SEC to take the forms and consider them on their own merits.  There is no evidence that A had a SLD for the purposes of RACE and in fact none of the educational psychological / other assessments obtained subsequently or evidence confirmed a contrary position.  Whilst I found Ms C’s evidence informative and insightful, she did not identify a SLD as defined.  Mr F engaged with Ms D, Advocate for A’s Parents in early March 2013 and clearly explained the position as per her contemporaneous notes and evidence.  Further evidence requested by the SEC was provided by School 2 without delay.  On 14th May 2013, Ms G contacted Mrs B regarding her concerns about the status of A’s RACE application and gave her the contact number for Official X.  When the application for a reader was ultimately refused, Mr F engaged again with A’s Parents and had communicated to them what accommodations had been granted and what accommodations had not been granted.  Mr F invited A’s Parents to come to the School and meet with him to discuss the situation on a number of occasions which were not availed of at any stage.  School 2 also lodged an appeal to the SEC on behalf of A and/or A’s Parents.  Ultimately A was refused a reader by the SEC and the Independent Appeals Committee on the basis that there was insufficient evidence that she had a SLD as defined for the purposes of RACE and the SEC further confirmed that School 2 could not have certified her accordingly.  Considering all of the aforesaid, I am satisfied that School 2 did everything within its power to guide and assist A’s Parents in relation to her RACE application within the meaning of Section 4 of the Equal Status Acts as interpreted in Cahill.  Consequently, I find no prima facie evidence to support this allegation on any grounds.

Allegation 3:  School 2 had failed to fulfil its duties in accordance with fair procedures and natural justice and exercise its discretion and significant degree of latitude in terms of confirming whether the Complainant should receive the benefit of a reader on grounds of a SLD for her examinations when no medical or psychological evidence was required.  Furthermore, by appealing the refusal on behalf of A, School 2 was acknowledging that the Complainant should have been afforded a reader.

Findings:  The first aspect of this complaint is premised upon a misconception that it was within the gift of School 2 to sign the application form confirming that A had a SLD in the absence of such evidence, by way of medical or psychological evidence or otherwise.  Even at the hearing, the view expressed by A’s Parents, Ms C and Ms D appeared to be that as a person with Down Syndrome, A should have been given all available supports regardless of whether she met the criteria.  Although various assertions were made to the effect that this was common practice, no empirical examples were provided.  Mrs B also appeared to be of the view that the role of a reader extended to assisting with comprehension.  At first glance this is an attractive proposition given that nobody would argue against a person in A’s position being given every available opportunity to progress academically and given her level it is difficult to see how a reader would have undermined the integrity of the exams.  However, there is also a need to stand back and engage with the underlying rationale for limiting access to a reader to students with a SLD as defined at the time, being to “(a) to remove, as far as possible, the impact of the disability on the candidate’s performance and thus enable the candidate to demonstrate his/her level of attainment and (b) to ensure that, while giving candidates every opportunity to demonstrate their level of attainment, the special arrangements will not give the candidates an unfair advantage over other candidates in the same examination.”  Clearly, accommodations under the RACE Scheme were aimed at enabling students access State examinations at their level of attainment without compensating for any intellectual deficit.

No evidence challenging the lawfulness and correctness of the rationale, criteria and guidelines for RACE applications at the material time was proffered on behalf of the Complainant.  No evidence was proffered to suggest that even if A had been granted a reader, she would have performed any better given that she had a general learning difficulty.  The Scheme clearly provided that a school should only sign an application for RACE on grounds of a SLD as defined if satisfied as to the existence of same and this was accepted by Ms D.  It was not in dispute that A did not have a SLD as defined and in fact none of the other educational psychological/assessments obtained subsequently or evidence from Ms C have confirmed a contrary position.  It was also clear that the smooth operation of the RACE Scheme for Junior Certificate students depended upon the Vice / Principals to certify correctly based upon their knowledge of their students’ disabilities.  In the circumstances, Mr F quite justifiably felt that he could not risk his reputation by certifying A as having a SLD in the absence of any supporting evidence notwithstanding the pressure being brought to bear on him to do so at the time.  Unfortunately, the fact that A was not granted a reader by the SEC became the focus of A’s Parents perception of the education system as failing to meet A’s needs even though the same situation had clearly pertained at School 3. 

Furthermore, there is no prima facie evidence to support the second aspect of this complaint, being that by appealing the refusal on behalf of A, School 2 was in some way acknowledging that she should have been afforded a reader.  The appeal submitted by School 2 was clearly submitted on behalf of A / A’s Parents and did not express any view as to whether the refusal of a reader by the SEC was incorrect. 

Allegation 4:  School 2 failed to apply for reasonable accommodations on the basis of the Complainant’s physical difficulties and had not signed the RACE application form on grounds of physical difficulty/ies.

Findings:  Firstly, as it is not in dispute that all of the physical accommodations sought on behalf of A for the Junior Certificate examinations 2013 under the RACE Scheme, comprising of a scribe (inclusive of a spelling and grammar waiver), a helper and a special centre were granted, no issue of a failure to provide A with reasonable accommodation or discrimination arises.  Secondly, I accept Mr F’s unrefuted evidence that upon bringing the issue with the SLD application to the SEC’s attention, it agreed to accept both forms unsigned and deal with them on their merits.  Likewise, I accept the unrefuted evidence of Ms H that it would not have been uncommon for the SEC to grant physical accommodations where a diagnosis of Down Syndrome had been indicated and this would explain why no difficulty arose with granting same.  Consequently, I find no prima facie evidence to support this allegation on any grounds.

Allegation 5:  School 2 had victimised A and her Parents in reaction to their grievances made on her behalf, and in particular by the letter of 5th June 2013 from the Board of Management threatening litigation along with a separate action by the Principal in response to their letter of 29th May 2013. 

Findings:  A prima facie complaint of victimisation under Section 3(1)(j)of the Acts requires a Complainant firstly to have taken one of the listed actions and secondly, to show that they have been treated less favourably than a person in a comparable situation who has not taken one of the listed actions.  The required criteria were outlined in Collins -v- Campions Public House DEC-S2003-071.  The Complainant must show (1) that he/she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied Section 3(2)(j); (2) that he/she was subjected to specific acts or treatment by the respondent after he/she did and (3) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at (1) above. 

The only conceivable basis for such a complaint arises under Section 3(1)(j)(v) of the Acts where one person has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv) and the other has not.  At a stretch, the letter from A’s Parents to the Board of Management dated 29th May 2013 making reference to the Equal Status Acts within its body and indicating “… we will give careful consideration to all of the other options available to us.”,could be construed asan intended application for any determination or redress provided for in Part II or III Section of the Acts. 

The less favourable treatment alleged boils down to a contention that A’s Parents were forced to withdraw A from School 2 owing to the references to Mr F obtaining his own legal advice in light of the publication of content contained in the response of 5th June 2013 from the Board of Management.  In this respect, I note that no litigation was ever initiated by way of Solicitor’s letter or otherwise against A’s Parents.  It was also the unrefuted evidence on behalf of the Complainant that on 30th May 2013, Ms D received a call from Mrs B stating that she was thinking of moving A to another school owing to her general frustration and disappointment with the way things had worked out in School 2.  In circumstances where this predated the letter of 5th June 2013, I do not find it credible that the decision to withdraw A arose as a consequence of the letter of 5th June 2013 and find it more likely that this decision was made owing to a breakdown in relations.  Consequently, I find no prima facie evidence to support a complaint a victimisation on this basis or arising from the Section 29 appeal as set out in Part 6 above.

Allegation 6:  School 2 placed the Complainant at a significant disadvantage in relation to other students within the School in terms of sitting the Junior Certificate examinations in 2013.

Findings:  Again, I find this complaint to be based upon a fundamental misconception of School 2’s role in terms of its capacity and latitude to certify A as having a SLD in the absence of any evidence of same.  The criteria and guidelines for the 2013 RACE Scheme were set by the SEC and it was undisputed that School 2 had no discretion regarding certification of a SLD as defined.  Likewise, and given that she had a general learning difficulty, no evidence was proffered to suggest that A would have performed better with a reader.  Furthermore, no evidence was proffered to suggest that A was treated less favourably than any other student in a comparable situation, whether on the disability or family status grounds in terms of applying for the RACE Scheme for the Junior Certificate examinations in 2013 or undertaking same. Consequently, I find no prima facie evidence to support this complaint of discrimination on any grounds.

Findings and Conclusions in relation to alleged Discrimination against the Second-named Respondent

7.6 Addressing each of the alleged acts of discrimination / failure to provide reasonable accommodation against the Second-named Respondent in turn, I find as follows:

Allegation 1:  The Second-named Respondent and/or the SEC in their role/s as service provider/s failed to provide A with a reader and hence reasonable accommodation for her 2013 Junior Certificate examinations when they knew that she had Down Syndrome and that this was required to participate in the examinations and further failed to provide a proper system of reasonable accommodation.

Findings:  Other than a bare assertion that this Equality Officer should look behind the underlying Circulars published by the Second-named Respondent, the correctness or lawfulness of the RACE Scheme as it operated at the material time has not been challenged by way of any expert evidence or otherwise.  It is noted that there was a formal Scheme in place to meet the needs of students with disabilities undertaking State examinations based on four grounds, namely visual, hearing, physical and specific learning difficulty (SLD).  It also operated based upon best international practice and research from an Expert Advisory Group and the role of a reader was intended to bridge a disjoint between a student’s ability and their performance and was not for the purpose of compensating for an intellectual / learning difficulty.  Detailed rationale, criteria and guidelines for the Scheme were provided.  It is further noted that in the interim, the RACE Scheme has evolved such that someone in A’s position could conceivably avail of a reader.  However, no evidence was proffered to suggest that even if A had been granted a reader, she would have performed any better given that she had a general learning difficulty.  Consequently, I find no prima facie evidence to support this complaint of discrimination on any grounds.

Allegation 2:  By previously granting these accommodations (a reader) to all other students whose schools made RACE applications, the Second-named Respondent and/or the SEC discriminated in the exercise of their discretion in relation to the Complainant.  This is premised on the information received from Official X and the Disability-related Charity that in their experience such accommodations were always granted to students with Down Syndrome on foot of an application from a school.

Findings:  Whilst this complaint was premised on comments made by Official X and the Disability-related Charity that in their experience such accommodations were always granted to students with Down Syndrome on foot of an application from a school, no empirical evidence to this effect was proffered and as such, it is based upon speculation and surmise.  As contended, it is quite possible that this never arose as a school simply did not submit an application in circumstances where a student was considered ineligible.  Even if it could be established that on occasion a Down Syndrome student without a SLD was erroneously certified as having a SLD and granted a reader, it does not automatically follow that this constitutes less favourable treatment on the ground of disability or denial of reasonable accommodation.  Consequently, I find no prima facie evidence to support this allegation on any grounds.

7.7 For the sake of completeness I have considered whether there is any discrimination by the Respondents and/or the SEC against the Complainant and/or her Parents by association on the ground of disability pursuant to Section 3(2)(g) of the Equal Status Acts.  Taking the Complainant’s evidence at its height, I find that there are no instances where either A and/or her Parents by association were treated less favourably than a student without a disability and/or their Parents or a student with a different disability and/or their parents in a comparable situation.  Likewise, there is no evidence to support a complaint of discrimination by the Respondents against the Complainant and/or her Parents by association on the ground of family status.  Section 3(1) and (2)(c) of the Equal Status Acts defines the discriminatory ground of ‘family status’ as arising “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation…” and “…one has family status and the other does not or that one has a different family status from the other”.  The Complainant’s Parents had contended that they had been discriminated against by the Respondents because they were a family.  However, in order to sustain this complaint, prima facie evidence that either A and/or her Parents by association were treated less favourably than persons in a comparable situation without a family status and/or with a different family status would have been necessary and none was proffered to this effect.

7.8 In terms of whether the Second-named Respondent was correctly named and/or whether the SEC should have been named, it is not disputed that the State Examinations Commission (SEC) is a separate legal entity from the Department of Education and Skills established by Statutory Instrument 373/2003.  Whilst it was acknowledged that the Second-named Respondent was responsible for Circulars underlying the RACE Scheme, no evidence was proffered on behalf of the Complainant taking issue with such Circulars or complaining about any actions of the Second-named Respondent and these complaints have been primarily levelled against School 2 and the SEC.  As no prima facie case has been established against either the Second-named Respondent or the SEC, it is unnecessary to consider further whether the Second-named Respondent or the SEC should have been properly named and/or should be amended.

8. DECISION

8.1 I have concluded my investigation of these complaints and based on the aforementioned reasoning, I find pursuant to Section 25(4) of the Equal Status Acts, that the Complainant has not established a prima facie case of a failure to provide her with reasonable accommodation and/or discrimination against her and/or her family by association on the grounds of disability and family status and victimisation contrary to Sections 3, 4, 5 and 7 of the Equal Status Acts as against each of the Respondents requiring rebuttal.

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Aideen Collard, Equality Officer

10th August 2020