Complainant

Respondent

Anonymised Parties

A Pupil (A Minor)

Primary School

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027951-001

23/04/2019

The Complainant was born with Down Syndrome and the National Educational Psychological Service (NEPS) report that her intellectual ability falls toward the upper end of the moderate range of general learning disabilities. She was a pupil of the Respondent School at the material time. She started in Junior Infants in September 2016 and was taken out of the school by her parents in April  2019, at 1st class.  The Complaint under the Equal Status Act 2000-2015 (the Acts) was submitted on the Complainant’s behalf by her mother.

The Complainant submits that she was discriminated against by the Respondent in denying her reasonable accommodation for her disability and also denying her access to education, contrary to the Acts.

The Respondent submits that the  school provided the best educational service available to the Complainant  in light of the resources that were available to it. The Respondent submits that the Complainant was not discriminated against in breach of the Acts.

It was accepted by the Respondent that the Complainant had a disability as defined under the Acts.  

Summary of the evidence of the Special Needs Assistant (SNA):

The SNA appeared on foot of a summons requested by the Complainant’s representative which I issued in advance of the hearing. The SNA gave evidence under affirmation. The SNA worked under the instruction of the Class Teacher. Her role was  to look after the general care and hygiene of the Complainant. She understood the child to have Down Syndrome and  multiple disabilities, including hearing loss. She described the Complainant as being easily distracted, easily tired and restless but that she never experienced aggression from the Complainant

She relayed an incident in junior infants’ class on 22 February 2016   when the Complainant knocked over a tin of crayons and did not receive a reward of “Golden Time” which meant the Complainant  had to stay in the classroom until the crayons were picked up. The Complainant said sorry to the teacher, but the SNA felt it was handled badly.

The SNA became concerned in 2017 when she was instructed by the Principal not to speak to the Complainant’s parents. She had never encountered a request like this before.

Photographs were exhibited, in evidence,  of a foyer area in the school, outside of the classroom and in front of the Principal’s office where the witness (the SNA)  was told to take the Complainant when she was disruptive. She gave evidence that she spent an inordinate amount of time in effect teaching the Complainant, which was not her job,  in the designated foyer space. She stated that communication with the Class Teacher was very difficult to the point she felt that there was no meaningful interaction with her (the SNA). She received an unfavourable reaction when she questioned the teaching method particularly the decision to move the Complainant to the foyer space for most of the day. She felt she had no voice in the school and that it seemed that it was better to do your work and keep your head down.

There were two inspections from the Department of Education where she was requested to bring the Complainant back from the foyer into the classroom for the duration of the inspections.

A new timetable was introduced in January 2019 but there was no improvement in the interaction with the Class Teacher and she found herself continually doing most of the teaching work with the Complainant.

Cross-Examination:

In cross examination the witness did accept that the Complainant had complex needs, especially speech and language difficulties. Regarding non-contact with the parents, Counsel put it to the witness that the Principal will say that such communication is best coming from the Class Teacher so as to avoid confusion. The witness did accept that the school was stuck for resources in that the learning space/foyer was the only option when the Complainant was out of the classroom.  

Summary of the evidence of the Deputy Principal.

The witness appeared on foot of a summons requested by the Complainant’s representative which I issued in advance of the hearing. She had no recall of an offer of support from Down Syndrome Ireland in the teaching of the Complainant. She considered this a matter for the Principal.

She recalled a meeting with the Complainant’s mother during 1st class term where the mother was seeking reassurance that the school was doing the best it could.

She said that the Principal came up with the idea of the foyer as a learning space. She considered this a bright and warm place. The witness could not confirm that the decision to allocate a learning space to the Complainant was not communicated to the parents.

The witness recalled meeting with a representative from NEPS on 19 December 2018, together with the  mother of the Complainant, as well as others. It was brought to her attention by Counsel for the Complainant that the NEPS representative had noted that “the goal should be to maximise inclusion where possible”. She did not accept that 60 minutes in the classroom  out of a total of 240 minutes per day signalled that the Complainant was excluded more than she should have been. She said that there were kids, other than the Complainant, who had special needs. 

She believed that the concerns of the SNA were more to do with her own personal unhappiness in the school as distinct from concerns for the Complainant.

Counsel for the Respondent chose not to cross examine the witness.

Summary of the evidence of the Complainant’s mother:

Respondent counsel objected to the giving of evidence by the witness on the basis that she considered it hearsay in that the mother was not involved in the teaching of the child and any evidence that would be given should be regarded as hearsay . I overruled the objection on the basis that the mother was in fact prosecuting the complaint on behalf of her daughter and furthermore the evidence thus far suggested that the mother had an interaction with the Respondent on a number of relevant issues.

The witness said that the class teacher did not engage with her in February 2016 when she heard about the punishment of a loss of ‘Golden Time’ for the Complainant when she had knocked a box of crayons to the floor. Her husband and herself met with the Principal and the Class Teacher on 16 March 2016 when she requested  the school that more leeway and consideration  would be given to the Complainant because of her Down Syndrome and learning disabilities. However, it was the school’s position that she be treated like every other pupil and the Principal reminded the parents in a follow up meeting that they had signed a code of behaviour for the Complainant on enrolment.

The witness sought support from the Down Syndrome Ireland (DSI) so that the school could be advised . The education officer at the time with DSI had a meeting with the school but the witness was not allowed to attend the meeting.

The witness never received a timetable for the 1st class period. A meeting was arranged for 4 October 2018 with the Principal, Class Teacher and the NEPS representative. The witness attended this meeting and attested to the note of that meeting, by the NEPS representative, where he had advised that the Complainant’s learning should be done within the classroom whenever possible except when there is good reason otherwise.

The witness said that there was no communication from the school about the fact that the Complainant was spending most of her school day outside of the classroom in the foyer with the SNA. She became concerned when her other daughter, who was in the Complainant’s class, told her that she, the Complainant was not in the classroom. 

The witness said that when a new education officer for DSI was appointed the school refused an offer of support from the organisation.

The witness and her husband wrote to the Board of Management members with their concerns about the Complainant’s education, but the Board chairperson refused to discuss the complaint, citing   the Catholic Primary Schools Management guidelines whereby the chairperson must first have sight of any documents to be discussed and that it was not correct to share with other Board members beforehand. 

The witness said she acquired  the Visiting Teacher’s  report under the Freedom of Information Act. She was shocked to discover that the teacher had recommended at the time  that the Complainant was not to be placed in the corridor.

When questioned on the Individual Education Plan (IEP) for 1st Class where it was  stated  that the Complainant was displaying inappropriate behaviour for the second term of 1st class, the witness stated that this was never made known to  her.

In answer to the question as to why she brought proceedings on behalf of her daughter, she said it was the last resort. It was very upsetting to the family  that the Complainant was not included in the class environment.

Counsel for the Respondent chose not  to cross-examine the witness.

Summary of the evidence of the Visiting Teacher for the pupils with hearing impairment.

The witness appeared on foot of a summons requested by the Complainant’s representative which I issued in advance of the hearing. The witness stated that she went to the school and met with the Complainant’s Class Teacher for 1st class. She checked the audio support system that was set up in the classroom and found that it was working satisfactorily.

On exiting the classroom, the SNA approached her in the corridor saying that the Complainant spent a lot of time outside of the classroom with her, to the extent that she was spending more time outside the classroom than within.  The witness made a follow up call to the Principal  because of what the SNA had said to her and also because it was unusual to have a workstation for a child outside of the classroom.   It was not common to follow up with such a call. She followed it up with an email note of the conversation to the Principal to ensure that the Complainant was not  receiving most of her education from the SNA.

She said it was an expectation of a mainstream school that the workstation should be within the classroom.  The witness said that the model is ‘Inclusion’ whereby a child must not be just in a school but taking part in the curriculum. She considered it not to be normal practice that a child’s workstation should be outside the classroom. She alluded to the ‘Differentiation’ model, which incorporates inclusion. This is where teachers differentiate between pupils of different abilities but does not mean students have to be removed from the class. The role of the teacher is to teach, and the child should not spend more time outside than within the classroom.

Cross-Examination:

In cross-examination the witness accepted that she was on maternity cover for another teacher at the material time and that she had spent approximately 30 minutes at the school. She agreed that schools may have to use their own discretion when noisy students may have to be removed. In  reply to a question as to why she did not get back to the teachers concerned she replied that it was the Principal who was responsible for the day to day running of the school.

In re-direct from Complainant’s counsel, she said it would be most unusual to have a child actually timetabled to be outside the classroom.

Summary of the evidence of the Education Officer from Down Syndrome Ireland (DSI):

The witness gave evidence under affirmation. She described her experience in the educational field which included being an advisor to the Department of Education as well as holding a PhD in special educational needs. Her role includes supporting schools directly.

She said she was contacted by the Complainant’s mother for support for her child at the school. The Principal refused her offer of help and wrote instead declaring that there were adequate supports within the school, citing CPD qualifications of staff. This reply included a reference to their experience with autism and that, as far as they were informed, elements of the needs of pupils with Autism and Down Syndrome overlap. Referring to this written reply, the witness said that research shows no  relationship between the behaviours associated with Autism and Down Syndrome.

The witness said, that in her experience, this was the first time that a school had refused an offer of support from Down Syndrome Ireland.

The witness said that she agreed that a child with Down Syndrome (DS) should be allowed movement breaks, for example putting a cup or book back in its place. On the issue of behaviour, there is no such thing as bad behaviour for a child with DS. There are behavioural issues such as annoying and dangerous behaviour. Children with DS have communication difficulties, and this can be perceived as misbehaviour.

The witness said she has never come across a situation where a workstation for a child was located outside the classroom. She had never seen a timetable formulated to show time outside the classroom for a child, unless it was  in a Special Education Teacher’s (SET) room. From what she has heard in evidence, and seen in  documentation, time in the classroom was negligible for the Complainant. She believes the timetable was exclusionary.

On the second term in 1st class beginning in January 2019, in reference  to exhibited documentation , the witness said the workstation time in the classroom had improved, but there was still a considerable time spent outside the classroom.

On the targets set for the Complainant in 2019,  she stated there were broadly aspirational with no specifics or appropriate strategies mentioned.

Counsel for the Respondent chose not to cross-examine the witness.

Complainant’s Legal Argument:

The Law

It is accepted on the part of the Respondent that the Complainant has a disability within the meaning of the Equal Status Acts.

Section 4 of the Act provides:

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.

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.

Section 2 of the Special Education Needs Act, 2004 provides:

"2.A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with-

the best interests of the child as determined in accordance with any assessment carried out under this Act, or the effective provision of education for children with whom the child is to be educated."

 Complainant counsel submits  that removing the Complainant  from the classroom routinely during the day and leaving her for long periods of time at a desk in the foyer with her SNA in a manner in which no other child was treated, raises a prima facie case of discrimination/failure to make reasonable accommodation.

Counsel submits that removing the Complainant from the classroom rendered it impossible for her to benefit from the teaching of the teacher, the SNA having been employed to look after the Complainant’s  care needs. Furthermore, the removal also made it impossible and or unduly difficult for the Complainant to be part of the social or peer group that was her school class.

Counsel further  submits  that there is no additional cost that would have been incurred by allowing the Complainant  to remain in the classroom, with assistance from her SNA, such as would engage Section 4(2) of the Act.

Counsel  cites the  case of A Student v A Secondary School (DEC-S2018-018)  where the Adjudication Officer held as follows at paragraph 11.7:

 “It is clear that section 4 of the Equal Status Act obliges the service provider to do all that is reasonable to provide special treatment or facilities to allow the person with a disability to avail of the service where it would be unduly difficult or impossible for her to do so otherwise. This is an assessment made objectively. It is an expansive obligation as it requires all that is reasonable. As opened by the respondent, the Circuit Court held that the solution offered by the service provider must be reasonable and need not be perfect. Section 4(5) refers to the provisions of the Education Act that relate to special needs education. This is a without prejudice" provision and ensures, in my view, that special education needs fall within the ambit of reasonable accommodation and the Equal Status Act.”

Counsel submits  that the  Respondent in this case failed to do "all that is reasonable" to accommodate the Complainant.

Section 7 of the Equal Status Act provides as follows:

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 the admission or the terms or conditions of admission of a person as a student to the establishment, the access of a student to any course, facility or benefit provided by the establishment, any other term or condition of participation in the establishment by a student, or the expulsion of a student from the establishment or any other sanction against the student.

(4) Subsection (2) does not apply-

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 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."

Further referring to  the  Adjudication Officer’s (AO)  decision outlined above,  Counsel asserts that the  AO held as follows at paragraph 11.1 in respect of the impact of section 7:

“ This provision imposes an extensive obligation on educational establishments not to discriminate against students in their admission or participation in the school, or in considering any disciplinary sanction or expulsion. This obligation is limited by subsection 4, where compliance with the obligation would make it impossible or have a seriously detrimental effect on the provision of education to other students. This provision was relied on by the respondent as referred to in Clare (A minor v Minister for Education and Science and others (2004] IEHC 350.”

Counsel submits that the  Respondent places reliance on Clare (A Minor) ,wherein it was held that a school was entitled to conduct a balancing exercise between the needs of one student and the needs of the wider school. Counsel argues that  there is no evidence as to what balancing exercise was carried out in order to conclude that the appropriate model - as referenced by the principal in his conversation with the Visiting Teacher in December 2018 - was one where  the Complainant  would be removed from the classroom and left sitting at a desk in the foyer outside the Principal’s office while all the other children remained in the classroom.

Furthermore, Counsel contends that that there is no basis or evidence for an assertion, if that is the assertion being made on the part of the Respondent, that if the Complainant had not been removed from the classroom during these times, then that would make it impossible, or have a seriously detrimental effect on the provision of education to other students in the class.

Counsel argues that the relevant statutory provisions in this case section 4 and section 7 of the Equal Status Acts and on the basis of the right of access to education, the Respondent school did not do all that was reasonable in ensuring the complainant's access to education.

Counsel submits  that the Complainant child has been treated less favourably on the grounds of her disability.

Counsel further contends  that the respondent did not behave in a reasonable manner and did not seek to address the concerns relating to the Complainant when they were raised by the Complainants parent or indeed when they were raised by outside agencies such as the NCSE and Down Syndrome Ireland. The  Respondent had not complied with section 4 of the  Acts in relation to providing the complainant with access to education. Her removal from the classroom for long periods during the day deprived her of access to education, furthermore this was exacerbated by preventing her from mixing with her peers including her sister.

Counsel concludes that the  Complainant is not and was not seeking "perfection" in respect of her access to education but simply inclusion in the classroom and equal access to educational services in a like manner to the other children in her class.   

Summary of the evidence of the Principal of the Respondent school:

The witness gave evidence under oath. The witness stated he had recently retired from his position as an  administrative Principal, as distinct from teaching Principal of the Respondent school which had approximately 200 students. Speaking about the ‘Learning Space’, he said he could not describe it as a corridor because the door in the vicinity is no longer used. He took Maths class in the area in the past. He described it as very bright and very comfortable.

He said that at the relevant time of the complaint the school had 3 or 4 students with special needs, excluding  the Complainant, with an allocation of only 1.83 SNA posts. He said that the Complainant had an SNA or Resource Teacher at all times. He utilised the Public Service Agreement ( Croke Park) allotted  hours of the SNA to ensure full cover for the Complainant.

He described a meeting he had with the parents of the Complainant in March 2016 as very challenging. He found the behaviour of the father, in particular, to be aggressive and dismissive.

He felt that it was appropriate for the Complainant to be in the ‘Learning Space’ because she could be very vocal. This space allowed her scope to move around, and it would improve her gross motor skills.

In reference to a report on details of inappropriate and aggressive behaviour of the Complainant, he said she would sometimes push and shove and hit out at other students. He said a temporary teacher had reported to him that the Complainant did try to strike her. He did not report such behaviour to the parents. The Complainant was till not toilet trained by 1st class.

A new improved timetable was introduced in 2019 after he spoke with the Visiting Teacher.

Cross-Examination:

On the deteriorating level of communication with the parents he said that he had always encouraged the parents to be present, but he was unhappy with the behaviour of the parents at a meeting and that he had a duty of care to protect his staff. He accepted that the idea of the ‘Learning Space’ was acted upon  without consultation with the parents. He accepted also that no student, other than the Complainant, had a timetable to be there.

He took no external advice from DSI because he believed both he and the teaching staff were professionally competent to deal with the needs of the Complainant.

When put to the witness that the SNA was not supposed to teach the Complainant, he said that the primary purpose of the SNA was to cater for the care needs of a pupil but that in reality SNA’s go way beyond was  written down in their job specification. He accepted that the Class Teacher has the primary role of teaching. When it was put to the witness to explain evidence that  showed that the  Complainant was spending only 45 minutes in class and 2 hours 45 minutes with the SNA, he re-iterated that they were the professionals on site and believed that the allocation of time was worked out in line with the needs of the Complainant as they saw it. 

Summary of the Evidence of the Resource Teacher (SET)

The witness gave evidence under oath. She described the needs of the Complainant. She said that the Complainant  had no speech and communication was a challenge. The school invested in the  “See and Learn” programme as recommended by Down Syndrome International. She compiled an individual education plan for the Complainant in association with the Class Teacher. Some targets were loose because there was no certainty with regard to future development.

In observation of the Complainant’s behaviour, she noticed that she could not hold attention – she re-iterated that this should not be seen as a criticism. There was a huge leap from Senior infants to First Class. On the suggestion of the SNA carrying out a teacher’s role the witness explained that the Teacher taught the child, and it was the job of the SNA to reinforce this teaching to make it more fun.

It was decided to spend more time in the ‘Learning Space’ because the movement breaks in the classroom were not working out. She said that the decision for the Complainant to sit with her back to the class was that of the SNA.

Cross-Examination:

When asked as to how the SNA can re-enforce the teaching when only 45 minutes was spent in the classroom and 2 hours 45 minutes spent with the SNA, she said that it was not practiced rigidly to be  in and out of the classroom. She said they worked with whatever they thought was best for the child. She did not see the need for external advice.

Summary of the evidence of the First-Class Teacher:

The witness gave evidence on affirmation. The Timetable was the creation of both herself and the SET Teacher. It gave the Complainant time to be more vocal because the Complainant was easily distracted. The time outside the classroom allowed her to find her voice. A lot of the activities in the classroom were beyond her ability.

Cross-Examination:

When put to the witness that it was a fairly seismic decision not to discuss what was happening with the Complainant’s mother, the witness replied that it did not occur to her. She accepted that no other child was put in the ‘Learning Space’.

The Respondent’s Legal Argument:

Section 4(1) of the Equal Status Act provides that "discrimination includes a refusal or a failure by the provider of a service to do all that is reasonable to accommodate 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."

Section 4(2) states that a refusal or a failure to provide the special treatment or facilities will not be deemed reasonable under the provision if it would give rise to a cost, other than a nominal cost, to the provider of the service in question.

Counsel refers to  A Student v A Secondary School DEC-S2018-018 where the Adjudication Officer noted that the reasonable accommodation test in Section 4 was an assessment made objectively. The respondent in that case relied on the unreported decision of the Circuit Court in Deans v Dublin City Council unreported 15 April 2008and the Adjudication Officer in his decision stated "... Circuit Court held that the solution offered by the service provider must be reasonable and need not be perfect."

Counsel submits that In that case the Adjudication Officer also noted that the obligation set out in Section 4 was qualified by the reference to cost more than a nominal amount.

Section 7(2) of the Act provides that an educational establishment shall not discriminate in, inter alia, the access of a student to a course. Section 7(4)(2)(b) of the Act provides that "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". The High Court in Clare (A Minor) v The Minister for Education and Science [2004] IEHC 350 held that a school was entitled to conduct a balancing exercise between the needs of one student and needs of the wider school community.

Counsel for the Respondent submits that Section 38A of the Equal Status Act sets out the burden of proof in these types of complaints. The burden is on the Complainant to raise a prima facia case of discrimination/failure to give reasonable accommodation which can then be rebutted (if successfully raised) by the Respondent. Counsel asserts that this is undoubtedly a case that is very fact specific. Counsel argues  that the Complainant has failed to raise a prima facia case of discrimination/failure to make reasonable accommodation.

The school at all material times was allotted certain limited resource hours for the Complainant. The entire school was allotted 1.83 SNA posts. The Complainant was one of 4/5 students (depending on the year) who had an entitlement to SNA access. The Complainant's needs and best interests were always considered with Individual Education Plans  (IEPs), advice from outside bodies and the involvement of SESS (NCSE) and NEPS. The Respondent submits that the school also had to consider the other students who had an entitlement to SNA access. The Respondent submits  that on occasion it was more appropriate to teach the Complainant outside the classroom. As was indicated she often became tired, and this facilitated her particular learning needs. However, when her parents requested more in-class hours significant efforts were made by all involved to facilitate same.

The Respondent asserts  that the Complainant was reasonably accommodated and as the Adjudication Officer in the case mentioned above stated this accommodation merely needs to be reasonable; it does not need to be perfect. It is the Respondent's position that in light of the resources it had at its disposal that the accommodation provided was more than reasonable.

 The main  issue in this case is whether the Respondent  school discriminated against the Complainant during the period she was enrolled at the school.  The question is whether the Respondent failed to provide reasonable accommodation to her needs and in doing so denied her access to education because of her disability.

It is not in dispute that the Complainant has a disability nor was there a conflict in the evidence that the Complainant spent a considerable period of the day with the SNA at a workstation termed “the Learning Space” outside the classroom in what was called the foyer. The issue to be addressed is whether the Respondent’s actions was a reasonable measure that accommodated the Complainant’s needs and did not curtail her education to the  degree that her rights were breached under the Act.  

 There is a statutory presumption that a child with special needs will be educated in a mainstream setting. Section 2 of the Special Education Needs Act, 2004 provides:

“2.A child with special educational needs shall be educated in an inclusive environment with children who do not have such needs unless the nature or degree of those needs of the child is such that to do so would be inconsistent with—

(a) the best interests of the child as determined in accordance with any assessment carried out under this Act, or

(b) the effective provision of education for children with whom the child is to be educated.”

 The relevant provisions of the Equal Status Act are at  sections 4 and 7. Section 4 provides:

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

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

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

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

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

(6) In this section—

“provider of a service” means— …

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

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

as the case may be, and “service” shall be construed accordingly;

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

Counsel for both parties referred to  A Student v A Secondary School DEC-S2018-018  where the Adjudication Officer noted that the reasonable accommodation test in Section 4 was an assessment made objectively. The pertinent passage from that case  is as follows:

 It is clear that section 4 of the Equal Status Act obliges the service provider to do all that is reasonable to provide special treatment or facilities to allow the person with a disability to avail of the service where it would be unduly difficult or impossible for her to do so otherwise. This is an assessment made objectively.  It is an expansive obligation as it requires all that is reasonable. As opened by the respondent, the Circuit Court held that the solution offered by the service provider must be reasonable and need not be perfect. Section 4(5) refers to the provisions of the Education Act that relate to special needs education. This is a “without prejudice” provision and ensures, in my view, that special education needs fall within the ambit of reasonable accommodation and the Equal States Act.

11.9     Section 7 of the Equal Status Act provides:

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

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

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

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

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

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

(4) Subsection (2) does not apply—

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

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

Both Counsel also referred to  Clare (A minor v Minister for Education and Science and others [2004] IEHC 350. where the High Court held that a school was entitled to conduct a balancing exercise between the needs of one student and needs of the wider school community.   

 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.”

Based on the evidence in this case,  I am satisfied  that the Complainant has established  that there was a significant limitation of the Complainant’s time in the classroom by the Respondent’s use of the Learning Space in the  foyer, thereby excluding her from social  interaction and learning with her fellow students, and by extension the access to education clause at Section 7. She was in fact timetabled to be out of the classroom rather than withdrawn as needed. I  therefore conclude that the Complainant had established a prima facie case. It was then up to the Respondent to prove the contrary.

Section 4(4) provides that there is no discrimination where a school treats differently a person with a disability where they could cause harm to themselves or to others. This particular point  was a significant  issue in this case, especially in relation to allegations by the Respondent of harmful behaviour by the Complainant.  

I note that in A Student and a Secondary School  which was cited by both parties,the Adjudication Officer, in reference to this section stated:

“While this is a significant qualification to the obligation to provide reasonable accommodation, the extent of the qualification is curtailed by words “to the extent reasonably necessary”. This prevents the application of a set or universal response to any particular behaviour. In order to be a reasonable response, the treatment must be assessed on a case-by-case basis. It is also significant that section 4(4) refers to “harm” and does not use other terms, such as “loss” or “inconvenience”. The Oxford English dictionary defines “harm” as “1. Physical injury to a person 2. Damage done to a thing 3. A bad effect.” The term “harm” must be interpreted strictly.”  

There was a significant conflict in evidence between the SNA and the Principal with regard to the Complainant’s behaviour. The SNA gave very plausible first-hand evidence of the child being overall pleasant in nature. She described the Complainant as being easily distracted, tired and restless but that she never experienced aggression from the Complainant. The Principal, on the other  hand, explicitly referred to  details of aggressive and inappropriate behaviour where he described how the Complainant would sometimes push and shove and hit out at other pupils. He stated that a temporary teacher, who was no longer at the school had reported to him that the Complainant had attempted to strike her on one occasion. He did not give further  detail on this incident and accepted that there was no investigation nor was it reported to the parents. I preferred the evidence of the SNA on the day-to-day behaviour of the Complainant. The Principal, by his own admission, had an administrative role as distinct from a teaching role, and in essence gave what I found were vague second-hand reports. In his  note that in his  of a meeting with the Complainant’s mother on 19 October 2018 there is no reference to aggressive or inappropriate behaviour by the Complainant. Furthermore, the SET and Class Teacher gave no evidence of harmful behaviour albeit they outlined cogently the academic challenges that the Complainant faced and how disruptive and noisy  the Complainant could become  in class, especially when trying to find her voice.

The qualified person in the field of the educational needs of primary school students, the education officer with Down Syndrome Ireland (DSI),  gave evidence on how behaviour for students with DS is classified.  Significantly that there is no recognition of ‘bad’  behaviour per se, and that behaviour is classed as either annoying or dangerous. She stated that communication difficulties with a DS child can often be perceived as misbehaviour. The NEPS psychologist in his report of 13 October 2017, which was attested to by both sides in the proceedings, outlined detailed  positive behavioural support principles and resources to be used with the Complainant. However, in the Individual Education Plan (IEP) of March 2017 a reference is made to setting a target regarding ‘challenging behaviour and again in the February  2019 IEP, where it is stated that The Complainant will develop appropriate strategies in line with the school’s code of behaviour. No further  reference was made to accommodating the Complainant’s learning needs, as suggested by the NEPS psychologist. Neither of these targets, and their achievement or otherwise, are referred to in the intervening reviews. Hence raising the question of whether the Complainant’s behaviour was in fact a concern.  Whilst the Complainant’s behaviour might have been challenging for her teachers, it did not form the focus of her educational plan. I find  it therefore incongruous and somewhat perplexing, particularly with regard to the timing , that the Individual Education Plan (IEP), dated February 19, 2019,  should state. “ (the Complainant) is displaying inappropriate and aggressive behaviour towards her peers and staff members, which is a concern”.

I conclude, on the balance of probabilities, that the Complainant’s behaviour could be  classified as challenging but not dangerous or harmful to the extent that the Respondent could rely upon it as a qualification under section 4(4) of the Act to not reasonably accommodate the Complainant’s needs.  

The Respondent argues that it did everything that was reasonable at the time given that it had been allocated 1.85 SNA teachers for five children with  special needs  and that the Complainant was never without an SNA or SET at any time. The Respondent  further argued that it  was entitled to balance the needs of other pupils with those of the Complainant. I accept that the school could have been more resourced with SNA teachers and also the realistic contention that perfect solutions were difficult to attain. This is a legitimate position to hold, and I accept that the school faced a challenge in seeking some equilibrium between what may be perceived as conflicting needs.  However,  the fact of the matter is that the evidence suggest  that the school came up considerably short in meeting  its obligations under the Act and the balance was significantly  skewed away from the needs of the Complainant.

The Learning Space in the foyer was described as warm and comfortable by the Respondent witnesses but that does not take from the Respondent’s  the obligation to provide  inclusiveness in mainstream education which proceeds from the basic physical requirement that the Learning Space should have been in the classroom. The Education Officer from DSI said in evidence that she has never come across a situation where the workstation for a child with DS was located outside the classroom. The Visiting Teacher gave evidence of her concerns and how she exceptionally followed up with a phone call and email to the principal voicing her concerns. The Class Teacher gave evidence that no other child was removed from the classroom in the manner described. I found it quite concerning that the Complainant was timetabled to be outside of the classroom for most of her learning day and that the learning, in essence, had become the prime  responsibility of the SNA rather than the Class Teacher. Clear evidence was given that the role of the SNA was to look after  the care needs of the Complainant as well as  to re-enforce the learning picked up at the classroom. The reality was that the Complainant had very little time allocated for learning.  She had neither access to her teacher, nor peer models.

The Respondent school clearly had a difficulty of balancing the Complainant’s needs with those of other pupils.  This was not helped by a defensive  attitude when it came to examining the school’s   competence in engaging with someone with special needs. Undoubtedly, the Complainant’s behaviour was challenging for the staff, as they described it but instead of seeing the “challenge” as how best to deliver and meet the educational needs of all in their charge they attributed the problem to the Complainant. Their solution was to remove her from the situation.  This defensiveness was manifested further in the refusal to accept a more than reasonable offer of specialised  support from Down Syndrome Ireland.

In conclusion and having heard the submissions and evidence in this case, I  am satisfied that the Complainant could have been reasonably accommodated by a workstation in the classroom and  only to be withdrawn when she was tired or significantly disruptive. This measure would have been cost neutral. The failure of the Respondent to do so leads me to no other conclusion but that  the Complainant’s prima facie case of discriminatory treatment on the grounds of disability was not adequately rebutted by the Respondent. I am satisfied, therefore, that the Respondent.   discriminated against the Respondent  in breach of Section 4 of the Acts on the grounds of disability. Furthermore, I find that the Respondent breached its obligation to the Complainant  by curtailing her opportunity to fully  access and participate in  education contrary to section 7 of the Acts.

Redress:

This is an unfortunate case and I accept in the main that the school was not resourced as fully as it should have been, but nevertheless I found that there were aggravating factors. I am satisfied from the evidence given that the reason for the decision of the parents to remove the Complainant from the school because of the exclusion  of the child from full social and academic activity. Uncontested evidence was given by the mother  that it was  only after being informed by her daughter, sister of the Complainant and classmate,  did she discover  that the child was spending most of her day in the foyer. The failure of the school to consult with the mother on this crucial aspect of her daughter’s education, was unacceptable.  

 A number of experts, familiar with the Complainant’s situation, had advised  the school of the perils of exclusion. The unprecedented actions of the school in having the Complainant, apart from any other child,  spend a considerable part of her day in a foyer outside of the classroom foreseeably reenforced the idea to the other children, and alarmingly for her sister who was in the same school, that it might be normal to exclude children with  special needs. This should never  have been the case.

Having considered the above I am satisfied that the redress should be at the upper end of the spectrum, therefore I direct  the Respondent to pay the sum of €12,000 as compensation to the Complainant  for the prohibited conduct.

I find that the Respondent had engaged in prohibited conduct in discriminating against the Complainant on the grounds of disability and treated her  less favourably  by not affording her reasonable accommodation contrary to section 4 of the Acts and I find also  that the Respondent breached its obligation to the Complainant  by curtailing her opportunity to fully  access and participate in  education, contrary to section 7 of the Acts. I  direct the Respondent to make compensation of €12,000 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Equal Status Act, Disability, Down Syndrome, Reasonable Accommodation,