Complainant

Respondent

Anonymised Parties

A secondary school student

A secondary school

Representatives

Derek Shortall BL

Stuart Begley BL

Naomi Mulvany KOD Lyons Solicitors

Catherine Kelly Solicitor

Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029889-001

25/07/2019

This complaint refers to the non- admission of a 15-year-old boy into a Transition Year (TY) programme.

This is essentially a fourth year of secondary school and takes place after Junior Certificate (third year) and before fifth year.

It is designed to bridge the gap between the Junior and Senior educational cycle and to prepare students for adult life. 

Not all students take up the option of this non-compulsory year.  In the Claimants year there were 160 students.  122 applied for the TY programme.  120 were accepted. 

The Respondent had in place an admissions policy and applications were accepted or denied based on same.

Admission to the TY programme was decided by a TY Admissions Committee who assessed the applications and make their decision.  The Committee applied criteria as detailed in the admissions policy to the applications.

The Claimant has a diagnosis of ADHD and ODD from the HSE’s Child and Adolescent Mental Health Service (CAMHS), dated April 2019.

The Claimant applied to participate in the Respondent’s Transition Year programme commencing in September 2019.

His application was sent to the Respondent on the 28^th February 2019. On the 13th of May 2019 the Principal of the Respondent school informed the Claimant’s mother by phone that a decision had been made not to accept the Claimant into the Transition Year (TY) programme. The reasons offered by the principal to refuse admission to the Claimant to the TY programme were a) his ‘record’ (i.e. disciplinary) and b) his ‘suitability’.

Part of the school’s criteria for entry to TY programme is that a student has a good disciplinary record.

The Claimant acknowledged that he did not have a good disciplinary record.  He argued that his poor behaviour was attributable to his ADHD and ODD.

On the 15th May 2019 the Claimant appealed of the decision. The appeal was heard by the Board of Management, without the Claimant or his parents present.  The outcome of this appeal was to uphold the original decision.  This was confirmed in writing to the Claimant’s parents on the 30^th May 2019.  

Counsel for the Claimant submitted that the decision of the Respondent did not take into account the best interests and educational needs of the Claimant.  The Respondent did not give any consideration to making reasonable accommodations for the Claimant’s conditions which

are recognised disabilities for the purposes of Equality legislation.   He submitted that the Respondent was in contravention of equality law, law for persons with special educational needs as well as the school’s own policy on special education provision which provides that

“[Redacted name of Respondent] School is committed to providing an education for its students in a caring and supportive environment. We strive to help each student achieve his or her full potential… People with Special Educational Needs shall have the same right to avail of and benefit from, appropriate education as do their peers who do not have such needs. … That people with Special Educational Needs leave school with the skills necessary to participate, to the level of their capacity, in an inclusive way in the social and economic activities of society and to live independent and fulfilled lives.”

The Claimant submitted that the Respondent did not make any effort to create a

level playing field for the Claimant to enter Transition Year programme.  His Counsel argued that by inclusion of the requirement for a good disciplinary record the school is indirectly discriminating against students with ADHD/ODD who will find this requirement particularly difficult to achieve.

The Claimant received a response to his ES1 form in 2 July 2019. The response largely focused on outlining disciplinary issues (the description of many of which he and his parents disagreed with).

The Claimant did not dispute that he had an unfavourable disciplinary record.  His issue was that the Respondent’s response failed to deal with his allegation that it is engaging in a discriminatory practice by using this as a criterion for admission to TY programme.

The reason by the Respondent of the Claimant’s ‘unsuitability’ for the TY programme was explained only in very vague and sweeping statements in the response.

The Claimant argued that it defied logic for the Respondent to argue that the aims of Transition Year are not entirely relevant or suitable for the Complainant.  The published aims of the programme are:

• education for maturity with the emphasis on personal development including social awareness and increased social competence

• the promotion of general, technical and academic skills with the emphasis on interdisciplinary and self-directed learning

• education through experience of adult and working life as a basis for personal development and maturity.

The Claimant submitted that the Respondent failed to demonstrate that it considered, in any way, the Claimant’s special education needs/disability in terms of exploring possible reasonable accommodations or plans that would make it possible (in the Respondent’s view) for the Claimant to participate in the TY programme along with his peers. No risk assessment by the school or potential means of addressing any perceived risks have been outlined. There seems to be no assessment of the Claimant’s own educational or personal development needs and wellbeing or what is best for him – which the Claimant argued should be at the heart of any decision about his education.

The Claimant noted that all other students, apart from one other, who applied to do

transition year were accepted.

The Claimant suggested some reasonable accommodations to the Respondent. He suggested simple measures including a tailored behaviour or educational plan for the Complainant, which is a requirement for students with special educational needs in any case and increasing awareness of teachers of ADHD/ODD traits and methodologies to deal with these.

His issue was in relation to the refusal outright by the Respondent to allow him to participate in the TY programme.  He was not offered a trial or a probation period.  He felt that the activities on the TY programme would have suited him better than the rigid class structure of 5^th year that he is undergoing. 

He pointed out that since his formal diagnosis in April 2019 his behaviour has improved both at home and at school. 

The Claimant relied on the case of Kim Cahill -v- The Minister for Education and Science [2017] IESC 29/1 and its direction on proportionality.

The Respondent set out that the Claimant’s behaviour has been a cause for concern since he started in the school in September 2016. He was one of approximately 160 students in his year group. However, since his commencement in the Respondent School, the Claimant’s Year Head had dedicated a significant amount of thought, time and effort in trying to support and assist the Complainant.

In December 2017, when the Claimant was in second year, the Respondent school’s NEPS Psychologist, alongside his Year Head and each class teacher, set out a targeted plan for the Claimant to encourage his progress in the Respondent school and to support him in addressing the behavioural issues, in the hope that it would improve. The Psychologist also recommended a referral to CAMHS. During this year the NEPS Psychologist invested substantial time and effort in trying to help the Respondent school and the Claimant address the issues concerned. This was well above the average time and resources that would be appropriated to an individual student. This investment in time and resources by the Respondent school is evidence of the priority given to the Claimant to provide support and assistance in any way possible. However, the Respondent school believed that the effect of these interventions was only marginally beneficial.

Issues regarding the Claimant’s behaviour also occurred outside the classroom. During examination times in the Respondent school, the Claimant’s behaviour had been a huge cause for concern. Most recently, during the Junior Certificate State Examinations, the Claimant regularly left the examination centre early and caused disturbance and noise which impacted negatively on the examination process and on other students.

The Claimant applied for acceptance to the Respondent school’s Transition Year programme on 28 February 2019.

In relation to acceptance to Transition Year, the Admissions Policy of the Respondent School provides as follows:

[Redacted Respondent] School offers Transition Year as an optional one-year programme designed to bridge the gap between Junior & Senior cycle and to prepare students for adult life.

The aims of the Transition Year Programme reflect those specific to the guidelines published by the Department of Education and Skills:

Education for maturity with the emphasis on personal development including

social awareness and increased social competence.

The promotion of general, technical and academic skills with the emphasis on

interdisciplinary and self-directed learning.

Education through experience of adult and working life as a basis for personal

development and maturity.

The Transition Year Programme is not compulsory. The maximum number of available places will be dependent upon staffing, facilities and resources and will be determined annually by the Board of Management.

Also, for acceptance to the Transition Year Programme, the school must be of the opinion that a student is capable of benefiting from participation in Transition Year and, equally, that his/her participation will not prevent any other student(s) from benefiting from participation. Any decision regarding enrolment will be taken by the Transition Year Admissions Committee, following consultation with the student’s teachers, the student and the parents of the student concerned”.

It further provides as follows:

Each application will be considered on its own merit. In addition to the level of serious commitment indicated by the student in the application process, the following criteria will apply in assessing a prospective Transition Year student application:

The student’s record of compliance with the school’s code of behaviour.

The student’s satisfactory attendance and punctuality record.

The student’s record of contribution i.e. extra-curricular and co-curricular activities.

Completion of application form and suitability for the programme.

A Transition Year student who does not actively participate of jeopardise the programme may be offered a place in the traditional 5th year programme for the current year”.

On 3 May 2019, the Respondent School’s Transition Year Admissions Committee convened its annual meeting to assess the applications for Transition Year 2019/20.  The Committee applied the criteria (as detailed in the policy) and it was the unanimous view of the Committee that the Claimant did not meet the criteria. The Principal contacted the Claimant’s parents and organised to meet them to discuss the concerns of the Committee. Following that meeting on 9 May 2019, it

was decided to refuse the Claimant admission to Transition Year based on his disciplinary record and unsuitability. This was conveyed by phone to the Claimant’s parents on 13 May 2019.

The Claimant’s parents appealed this decision to the Respondent and on 29 May 2019 the Respondent upheld the decision of the Transition Year Admissions Committee.

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

The relevant provisions of the Equal Status Act 2000 (as amended) are sections 3, 4, 5 and 7. 

Section 4 provides:

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

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

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

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. (emphasis added)

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

(6) In this section—

“provider of a service” means—

…

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

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

In Cahill -v- The Minister for Education and Science [2017] IESC 29 Ms. Justice Laffoy held at paragraph 52 of her decision that

“in the Act of 2000 “discriminate” is defined as discriminating within the meaning of s. 3(1) or s. 4(1).  Section 4 does not constitute a separate prohibition on discrimination in addition to that provided by S. 5(1) and the same applies to S.3.  Both of these sections define the scope of the meaning of to “discriminate”.  Accordingly, in order to determine what is prohibited by S. 5(1) it is necessary to apply the provisions of either or both of s. 3(1) and s. 4(1).  Even if it is determined that there has been conduct which amounts to discrimination under s. 3(1) and s. 4(1), the prohibition under s. 5(1) will not apply if the conduct or activity comes within any of the types of conduct itemised in s. 5(2)”.

Section 4 of the Equal Status Act obliges the service provider to do all that is reasonable to provide special treatment or facilities to allow the person with a disability to avail of the service where it would be unduly difficult or impossible for him to do so otherwise. This is an assessment made objectively. It is an expansive obligation as it requires all that is reasonable.

In her decision in Cahill quoted above Ms. Justice Laffoy at paragraph 65 held that “the service provider is only required to do all that is reasonable, in my view, imports the concept of proportionality into s. 4(1), subject to 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. 

At paragraph 73 Ms. Justice Laffoy goes on to state

“It envisages that a balance is to be maintained between the needs of the disabled person and how those needs are met by the provision of special treatment or facilities to the extent necessary to enable the disabled person to avail of the service, or to do so, without undue difficulty, on the one hand, and the effect of such provision on the service provider in the overall context of the position of the service provider, as the provider of the service, on the other hand.”

The question the Claimants counsel has submitted that I must decide is whether there has been a failure on the part of the Respondent to do all that is reasonable to accommodate the needs of the Claimant by providing special treatment in the form suggested by his parents in their letter of the 15^th May 2019 namely:

-disregard his disciplinary record to the extent that it has impacted on his application for TY in the light of the root case of his behavioural issues being his ADHD and ODD

-the development of a behaviour plan or IEP

-increased awareness of teachers of the features of ADHD/ODD and strategies to manage same.

The Claimant submitted that these were proportionate responses and would facilitate the Claimants entrance to and successful participation in the TY programme.

The Respondent relied on S. 4(4) of the Act which is set out above.  They advised that the Claimant had been removed from class on numerous occasions due to health and safety concerns. He had also gone missing and left the building without permission on several occasions. They submitted that is the responsibility of the school to provide all students with a safe, secure and healthy environment.   The Respondent school explained that it firmly believed that a structured educational environment was absolutely necessary for the Claimant to ensure his continued progress at school. The Respondent explained that Transition Year was a very flexible structured programme, with many external activities and trips. The Respondent school believed that the flexible nature of the Transition Year programme was unsuitable for the Claimant and would cause concern for his welfare and safety, in addition perhaps to the welfare of other students in the school. 

The Claimant’s parents queried the reliance by the Respondent on health and safety.  They submitted that there was no mention of same at the meeting of the 9^th May 2019 or in the decision of the Respondent. 

Without prejudice to the foregoing the Respondent relied on Section 7(4) (b) of the Act.

Section 7 of the Equal Status Act provides:

“7. (1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

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

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

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

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

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

(4) Subsection (2) does not apply—

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

(b) to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.” (emphasis added).

The Respondent submitted that Section 7(4) (b) of the Act also provided for a defence against alleged discrimination.  It explained that the Respondent school’s Admissions policy provided that, for acceptance to the Transition Year Programme, the school must be of the opinion that a student is capable of benefiting from participation in Transition Year and, equally, that his/her participation would not prevent any other student(s) from benefiting from participation.

The Respondent submitted that the Claimant’s disruptive behaviour has been a serious cause for concern throughout his time in the school. The Respondent submitted that accepting the Claimant to the Transition Year Programme would have a seriously detrimental impact on the other students participating in the programme.

Section 38A sets out the burden of proof in Equal Status complaints:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

On the facts of the case, the Claimant had established a prima facie case in relation to discrimination on the ground of disability in the failure to comply with S. 4(1).

It was then for the Respondent to rebut the presumption of discrimination.

The only witnesses to give evidence were parents on behalf of the Claimant and the School Principal on behalf of the Respondent.   The decision makers on the Respondent’s School Transition Year Admissions Committee were not in attendance.  Neither were the Claimant’s diagnosing Psychiatrist or any medical personnel to assist with the Claimant’s diagnosis and symptomatology.  These matters are mentioned not in criticism but to indicate the evidence available to me.

The history of the Claimants poor disciplinary record during school time was not disputed in the main.  The Respondent provided a detailed breakdown of his behavioural issues for First Year, Second Year and Third Year.  This ran to over three pages.  I was also provided with a list of meetings and phone calls from the Respondent’s staff to the Claimant’s parents which ran to nearly 2 pages.  This list was first viewed by the Claimant’s parents at the hearing and they disputed some of the details.  They had not been provided with it earlier. It was explained that the Reports were collated by the Respondent from separate documents maintained by the Year Head and Teachers. 

I was not provided with any list for the Complainants attendance in Fifth Year which would have been from the start of September 2019 to the date of the hearing.  The Claimant’s parents gave evidence that the Claimant was “doing his best behaviour wise”.  They had received three notes for poor behaviour over a three-month period.  They felt that his grades had deteriorated.  Since his diagnosis in April 2019, they felt he was calmer and more accepting. 

The Respondent’s position was that the decision to refuse him entry onto the TY programme was good for the Claimant and the structure of Fifth year was more suitable for him.  The Claimant’s parents disputed this and felt activities suited him better than a rigid class structure.

There was no written record by either side as to the contents of the meeting of the 9^th May 2019 which took place between the Claimant’s parents and the School Principal.  I do have the Claimant’s mother’s letter of appeal dated 15^th May 2019.   The Claimant also raised that there was no written decision by the Admissions Committee or the Board of Management of its decision.  The Claimant argued that the Respondent was adding Health and Safety reasons as a ground for its decision and this was not mentioned earlier in the decision-making process. 

I note that the Claimant’s mother in her letter of the 15^th May 2019 noted the Respondent had advised in the context of their decision that it “would be difficult to supervise” the Claimant.  This is an indication that supervision was mentioned and based on same I do not accept that the Respondents were now adding Health and Safety to their grounds for their decision. 

I note that the Claimant is not on any medication for this diagnosis or involved in any ongoing engagement with the CAMHS Services.  The Claimant’s parents explained how the Claimant was offered group therapy but that he wasn’t interested in doing this.  I was advised that the Claimant was discharged by the Psychiatric service of the HSE to his GP’s care and he was “doing his own thing”.  In previous years he had around 10 treatment sessions with an OT and a Therapist. 

The School Principal gave evidence that he was not surprised with the Claimants ADHD diagnosis.  He agreed that the Claimant’s behaviour had improved and felt this was because of this WRC complaint and the Claimant’s own choice.  He suggested that the Claimant work harder and listen to his teachers rather than his friends and apply himself to his studies. 

The Principal questioned the extent of the diagnosis in that the Claimant was not participating in a treatment plan, was not on any medication and had no further interaction with CAMHS. The Respondent did welcome the report from CAMHS, however it did not offer any specific entitlements for additional support e.g. SNA access, teaching support hours or other reasonable accommodation.  He agreed that he was not medically qualified to give evidence on this however he compared the Claimant’s “non-treatment” to other pupils in his school who had been similarly diagnosed and their ongoing treatment. 

Having reviewed the evidence, both written and oral, I prefer the evidence of the Respondent and find that it has rebutted the prima facie case.   

There was no issue that the Respondent did not consider reasonable accommodation for other aspects of the Claimant’s schooling.  His Year head dedicated a significant amount of time, thought and effort in trying to support and assist the Claimant.  The school NEPS psychologist alongside his Year Head and each class teacher set out a targeted plan for the Claimant to encourage his progress in school and support him.    

I note that access to Transition Year is not denied to students based on disability and the Respondent advised that analysis of the last 9 years indicated that approximately 9% of students on average in Transition Year have a disability/learning difficulty. 

I find that the process of engaging with the Claimant and his parents in the decision-making process to be correct.  It would have been preferable if the Respondent had issued its decision in writing, however by not doing so was not fatal to the process.

I accept that the decision of the Respondent was not made in a vacuum.  The Claimant’s mother’s letter of appeal sets out her views of the meeting on the 9^th May 2019.  There was engagement between the parties on what the issues the Respondent had regarding the TY programme for the Claimant.  The Claimant’s parents were asked for their views.   

I have read the extensive reports on the Claimant’s behavioural issues and interaction with his parents.  In May 2017 the Claimant kicked another student in the fact which left a mark.  In February 2018 he kicked a locker.  He has mitched from school.  In October 2018 he was described as violent in class.  He was suspended from various classes and school on five occasions in the Spring of 2019. 

I am conscious of the difficult circumstances each side found themselves in and I can’t but be sympathetic to the Claimant and his parents.  Everyone wants to be with their friends and define their own destiny. However, the Respondent is not required to submit to every wish expressed by a pupil with a disability.  The Equality legislation requires a reasonable solution to a problem.  I find that the balance espoused in the Cahill case was present in the decision made by the Respondent in refusing the Claimant a place on the TY programme.  The requirement for reasonable accommodation cannot be read by looking at clause 4(1) alone.  Section 4(4) and 7(4)(b) were inserted in the legislation for a reason.   

I don’t accept that the Respondent was required to have a risk assessment carried out.  The Respondent is well positioned to assess the health and safety risks arising from the Claimants or any other pupils’ behaviour on its school premises.  I note that the Respondent engaged with the Claimant’s parents about his disruptive behaviour during his years of attendance.  It is understandable that the Claimant’s parents didn’t recall every event that was presented to them at the hearing as his disciplinary record.  They accepted that he did have a disciplinary record and even if not each incident on the lists were agreed between the parties, the fact remains that there were a substantial number of incidents on the records.      

Therefore, I accept that section 4(4) and 7(4)(b) apply to the circumstances of this case and the decision not to allow the Claimant to participate in the Transition Year Programme was reasonably necessary for his own health and safety and those around him and the detrimental impact it would have on other students participating in the programme. 

I hope that the Claimants improved disciplinary record for the past three months continues and this decision does not trigger a return to the previous pattern.  I commend the Claimant and his parents on the vast improvement that has been noted by both sides.  I have no doubt that the Claimant’s parents will continue to do what they can for their son and likewise the Respondent.  

I find that this case is not well founded. 

Reasonable accommodation.  Section 4(4) and 7(4)(b) Equal Status Act.