Complainant

Respondent

Anonymised Parties

A Parent {text}

An Educational Service Provider {text}

Representatives

  Self represented

Catherine McVeigh BL, instructed by Eversheds Sutherland

Act

Complaint Reference No.

Date of Receipt

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

CA-00058615-001

31/08/2023

The hearing on the within matter was scheduled for 6 March and was held as a hybrid hearing. The complainant and her witnesses attended by remote means and the respondent and its witnesses attended in person at the WRC. The hearing commenced and witnesses were sworn in. The complainant proceeded to present her case. About an hour into the hearing, the complainant stated that she had substantial difficulties with regard to hearing the participants and also with seeing the persons in attendance.

The respondent meanwhile had requested an adjournment on the basis of allegations made by the complainant about serious untrue accusations concerning a staff member of the respondent who was not present on the day of the hearing but who would come to the reconvened hearing to give evidence. Having carefully reviewed the matter I advised the parties that the hearing would be adjourned and expedited for re-scheduling at the earliest available date in order to facilitate both parties. The resumed hearing was reconvened on 8 May. At the outset of the hearing, I advised the persons in attendance that we would be taking comfort breaks as required to accommodate the complainant. I also requested parties to speak slowly and clearly so as the complainant would be able to hear and understand the proceedings in an effort to facilitate her given her disabilities.       

The complainant is the parent of a minor. The complainant is alleging that she has been discriminated against by the respondent on grounds of race, civil status, family status and disability. In relation to her disability, she states that there was a failure by the respondent to provide reasonable accommodation. The complainant further alleges that she was harassed by the respondent and subjected to victimisation. 

The complainant states that her disabilities include ADHD, Aspergers and Meniere’s Disease. The complainant states that in relation to her Meniere’s diagnosis, she has a degenerative hearing disorder. The complainant states that she also has difficulties with her eyesight. She states that she struggles to drive at nighttime. She states that she cannot proof read a document and struggles with written work. The complainant states that her handwriting is poor and she is not good at spelling.     

The complainant states that since 2015 she has been engaging with the respondent for support for her child but to no avail. The complainant states that staff of the respondent have treated her less favourably and acted in such a manner as to deprive her child support and early education up until 2020 when her child then aged 8, got receipt of the first Home Tuition Grant that was signed off on by the respondent.

The complainant states that the respondent has failed to understand the type of school that is suitable for her child who is severely autistic, non-verbal and visually impaired with pathological demand violence. The complainant asserts that the respondent discriminated against her in sending her to apply to a mainstream school for her son when clearly she is seeking a special school placement and in circumstances in which the respondent is fully aware of her child’s complex needs.   

Race discrimination

The complainant states that in 2021/2022 she was discriminated against by a staff member of the respondent in circumstances where “Rita in Finance told her to Go Home”. The complainant states that staff of the respondent were aware she had an English accent and this was a form of racism against her. 

Disability discrimination

The complainant states that Ms CG of the respondent stated to her “why would you have a child with all your disabilities”.

The complainant states that in 2021, she became aware that two staff of the respondent Ms CG and Ms GM made statements to Gardai supporting the notion that the complainant had “caused developmental delays” and was “wilfully neglecting the child”. The complainant states that at that juncture Ms CG had signed off on the Home Tuition Grant meaning that her child had education in the home.

The complainant asserts that it was at this stage it became clear to her that the respondent had been procured by education welfare and Department of Education to attempt to pursue the complainant for her child not being in school, irrespective of the fact they were aware on 14 August 2020, that the child had a grant for 20 hours for home tuition, given that there were no school places available for her child.  

The complainant states that the respondent failed to provide her with reasonable accommodation, in that, she was not offered an Access Officer when she requested same in order to access services for her son in 2018.

The complainant further states that the respondent’s refusal to her request on 31 May 2018 for a Special Educational Needs Organisers (SENO) to visit her home given the difficulties she had with her son and his complex needs was another form of discrimination on grounds of disability and a failure to provide reasonable accommodation.

The complainant states that by 5 August 2022, the respondent was again delaying her child’s education and again refused to sign off on the home tuition grant. The complainant states that she did apply to schools in various locations but there was no suitable place available for her son. 

Harassment

The complainant states that the respondent was approaching schools behind her back and without her knowledge. She states that the respondent made applications for mainstream schools for her son even though her son was not suited to a mainstream school as his needs were so severe. The complainant states that subsequently she would receive applications for bus transport sent to her by various bus companies.   The complainant states that an application was made by the respondent to a special school in 2023 (more than 25 KM from her home) for her son and the social worker allocated to her had no knowledge of same.  The complainant states that the respondent knew that given her disabilities, she cannot drive and there was no way that her severely autistic son could travel 25 kms to and from the school every day. The complainant asserts that there was no joined up thinking and no sharing of information by the respondent and other education authorities.

Testimony of Mr NM – witness on behalf of the complainant

Mr NM, a witness and friend of the complainant gave evidence in support of the complainant. He stated that the complainant is an excellent mother and went above and beyond to try and find supports for her son who has severe autism. He spoke very highly of the complainant as a mother. He stated that he has a child with autism and knows only too well the difficulties in sourcing support and learning for a child with additional needs and the need to challenge various government institutions in order to get the support needed.  Mr NM stated that from all he has observed the respondent has caused the complainant’s son to be without an education. He further stated that the respondent has subjected the complainant to harassment. Mr NM states that there were a number of case conferences in respect of the complainant’s son where staff of the respondent made damning statements against the complainant which were completely without foundation. He states that Ms CG of the respondent made false statements to various government authorities including the Gardai and Tusla in relation to the complainant wilfully neglecting her son and causing developmental delays in respect of her son. He stated that Ms CG is the same person who signed off on the Tuition Grant for the complainant’s son for the academic year 20/21 and 21/22 and knowingly made a false report to the Gardai stating that the complainant had failed to make applications to schools for her son.    

Mr NM states that the respondent made an application to a Named Special School in 2023 on behalf of the complainant’s son which was a substantial distance from the complainant’s home knowing that on the basis of the complainant’s son’s complex needs and disabilities that he would not be in a position to travel such a long distance to and from school every day.

Testimony of Mr LH – witness on behalf of the complainant

Mr LH states that he knows the complainant a long time. He stated that he is aware first hand of the upset and trauma that staff of the respondent have caused to the complainant. He stated that the complainant is a great mother and has the best interests of her son at heart. He stated that the respondent together with other government authorities caused the complainant to be in a jail cell in a garda station for over 6 hours which was a harrowing experience for her and totally unjustified. 

Mr LH stated that he cannot speak highly enough of the complainant. He stated that she is a great advocate and helps and assists people with disabilities and those trying to access services. Mr LH states that the complainant did not deserve the harassment and unfair treatment meted out to her by the respondent.

Closing Statement of Complainant

The complainant states that she is the mother of a disabled child with significant needs. She states that she approached the respondent for assistance and paid a lot of money to advocates to act on her behalf to access the services for her son. The complainant states that the respondent would not engage with her and if she made a complaint to them, all she would receive back is an acknowledgement letter. The complainant states that the CEO of the respondent did not care and Mr AT of the respondent did not look into or investigate any of the issues she raised.

The complainant states that she asked the respondent for support, in that, she looked for an Access Officer as she had a child with exceptionally challenging behaviour. She states that she requested of the respondent that she be given a home visit given by SENO given the nature of the challenges she faced but was denied same. The complainant states that when she phoned up staff of the respondent, they were rude and subjected her to racist remarks. The complainant states that she found herself in a jail cell as a result of the actions of staff of the respondent.

The complainant states that no suitable school place and no supports were offered in respect of her son. The complainant also claims discrimination by association, in that, advocates who had been assisting her pulled away as they were getting abuse from staff of the respondent.

The complainant states that her son has a constitutional right to education and that the respondent has failed both her and her son.     

The respondent states that it is an independent statutory body established to improve the delivery of education service to persons with special educational needs arising from disabilities with a particular emphasis on children.

The respondent states that on 31 August 2023 at 17.58, it received by way of email an ES1 Form from a Ms GP, who stated that she was acting for the complainant and referred to the complainant’s solicitor Mr PL. The respondent argues that it is clear that the complainant was legally represented at this time. The respondent states that on the same date at 18.11, the complainant forwarded the ES1 Form to the WRC. The respondent states that on 12 September 2023, 12 days later, the WRC assigned and issued to the respondent an ADJ and CA reference number for a complaint stating that “the complaint/dispute will now be considered for adjudication”.

The respondent argues that no Complaint Form was ever received by the respondent and despite this, a hearing date of Wednesday 6 March was assigned to the matter. The respondent states that on Friday 1 March 2024, it received an email from the complainant attaching a written submission totalling 415 pages making a number of very serious allegations against the respondent. The respondent asserts that the case advanced by the complainant is entirely unclear, confused and goes well beyond the remit of the Equal Status Act 2000.     

Preliminary issues raised by the respondent

The respondent submits that the WRC does not have jurisdiction under the Equal Status Act 2000 to hear the within complaint in circumstances where the complainant failed to issue a Workplace Relations Complaint Form. It states that the complainant solely issued an ES1 Form on 31 August 2023.

The respondent further submits that if the ES1 Form dated 31 August 2023 is to be treated as a Complaint Form, then the complainant never served an ES1 Form in breach of section 21(2) of the 2000 Act. The respondent asserts that the mandatory provision at section 21(4) of the 2000 Act has not been complied with by the complainant, namely that the Director General of the WRC shall not investigate a complaint until either a Respondent has responded or at least one month has elapsed since the ES1 Form. It was submitted that as a statutory body, the WRC does not have jurisdiction to go beyond the remit of the 2000 Act.

The respondent further submits that any acts of alleged discrimination are outside the cognisable period of 1 March 2023 to 31 August 2023 (the date upon which the ES1 Form was issued if the WRC is to treat the ES1 Form as a Complaint Form).

Preliminary Issue with regard to Respondent’s status as a service provider to the Complainant   

The respondent states that “Service” is defined at section 2 of the 2000 Act as “a service or facility of any nature which is available to the public generally or a section of the public…”. It was submitted that for the complainant to obtain protections under the Equal Status Act 2000, she must satisfy the Adjudication Officer that the respondent provides a service to her within the meaning of the Act and crucially that it has discriminated against her in providing that service.

The respondent states that it acknowledges that it provides a service to the complainant. However, it submitted that due regard must be had to the type of service – and the limitations of that service that the respondent provides to the complainant that is to say it operates an advisory/information provider to parents of children registered with the respondent.

The respondent requests the Adjudication Officer to bear in mind for all claims that the type of service provided to the complainant will inform whether it treated her differently in providing that service. It was submitted that it will further inform the Adjudication Officer as to the correct legal comparator required in this case.

EPSEN ACT              

It was submitted that the respondent’s function (which is under the aegis of the Department of Education, the Parent Department) is to coordinate and support the provision of special needs education to children in line with the Education for Persons with Special Educational Needs Act 2004 (EPSEN Act) and Parent Department policy.

Section 20 of the EPSEN Act outlines the functions of the respondent. Section 20 (1)(a) and (d) relates to the service that the respondent provides to “parents”, as follows:

The Council shall have the following functions:

(a ) to disseminate to schools, parents and such other persons as the Council considers appropriate information relating to best practice, nationally and internationally, concerning the education of children with special educational needs;

…

(d ) to make available to the parents of children with special educational needs information in relation to their entitlements and the entitlements of their children

It was submitted that section 20(1)(a) and (d) of the EPSEN Act confirms that the function of the respondent in the legal service it provides to the complainant is limited to an information provider.

Information Booklet for Parents (2014)  

It was submitted that the respondent published an information booklet in 2014 for parents. In that regard, the particular sections of the Information Booklet that outline the advisory function to parents are as follows;

(i ) Page 18 where it lists in bullet points the “service provided by the Visiting Teachers” in the respondent organisation, all confined to “guidance” “support” or “advice”.

(ii ) Page 40 where it confirms that “the SENO can support transition by providing information to parents and liaising between schools and parents”. Further on the page, it confirms that the “SENO will contact the parents to make them aware of the options available to their child”.

(iii ) Page 48 further highlights the role of SENOs in their “role in supporting and advising parents”.

SENO’s role in practice

The respondent states that as regards the day to day role of a SENO, a significant part of the SENO’s day involves engaging with parents of children with additional needs. If parents are not already aware of the support available to children with significant sensory impairments, (deaf/hard of hearing and blind/visually impaired), the SENO can assist in establishing contact between the parent and the Visiting Teacher Service, when the child’s impairment is within the range which qualifies for Visiting Teacher Support.

It was submitted that SENOs support parents through the provision of information in respect of criteria for specialist school or class placement, can make recommendations for Assistive Technology on receipt of applications from schools and process school transport applications in respect of students in special classes and special schools as they relate to children with additional needs. SENOs carry out reviews of additional supports to schools including special education teaching hours in mainstream schools and special needs assistant support across school sectors. SENOs regularly provide parents with advice and explain how such reviews and allocations operate and how they might impact on their child.

It was submitted that local SENOs can also provide localised information in respect of schools that provide special classes and the status of available places in those classes. SENOs can discuss the different options for school placement, be it mainstream, special class or special school and the criteria for enrolment in each of those placements. SENOs can also provide information in respect of the supports that are available in all schools for children with additional needs. SENOs where requested, will attend meetings in schools relating to children, for example, meitheals.

The respondent asserts that in addition to this, the local SENO can signpost a range of education and health agencies and provide website links to or, where available, provide hard copies of publications which may provide information that the parent requires. SENOs further conduct Parent Information Sessions, for both the transition to primary and the transition from primary to post primary. Those presentations are usually hosted by local children’s disability network teams in the HSE with whom SENOs have engaged to support parents when preparing their children for school attendance/transition.             

Customer Charter and Action Plan 2023 - 2025

The Customer Charter and Action Plan 2023 –2025 under the heading “Level of Service to expect when you deal with the respondent organisation [my emphasis]: Equality/ Diversity” at paragraph 9 provides:

“We are fully committed to ensuring that customer rights to equal treatment under equality legislation are upheld. 

We provide equality of access to our services and endeavour to accommodate diversity as provided for by equality legislation. We will work with our customers to ensure that their accessibility or other needs are looked after and will assist our customers with specific needs in accessing information or services as required. 

The Access Officer will arrange extra help if necessary, … Information on our Access Officer is available here on our website. The Access Officer can be contacted at accessofficer@ncse.ie”.

There is a specific section on “Equality & Diversity”, which outlines the principle of the respondent to:

“Ensure the rights to equal treatment established by equality legislation, and accommodate diversity, so as to contribute to equality for the groups covered by the equality legislation (under the grounds of gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the Traveller Community)...”

It is submitted therefore that the “service” within the meaning of the lawthat is provided to the complainant is confined to that of a “parent/ guardian” to the child that is registered with the respondent. In this regard, the complainant when queried by the Adjudication Officer at the hearing confirmed that she is taking this claim as a “parent” using the respondent. 

The respondent is not disputing that it provides a “service” to the complainant but only in her capacity as a “parent” of a child who is registered with the respondent. Therefore, at the outset, it is acknowledged by the respondent that the complainant is entitled to seek protections under the 2000 Act, but limited to the actual service that the respondent provides to her – not her child. This service to the complainant is limited to an advisory one, where the respondent provides support, guidance and advice to parents/ guardians of a child registered with it.

Preliminary Issue 2: Requirement for a legal comparator for all claims

It is submitted that the need for the Adjudication Officer to understand the sole function of the respondent as an advisor is imperative to her determining whether the complainant has identified an appropriate legal comparator. The respondent submits that if it is found that an appropriate legal comparator has not been identified by the complainant on each of the discrimination claims, then her claim must be dismissed on the grounds that she has failed to establish a prima facie case of discrimination. 

The provisions of section 3(2) of the 2000 Act relevant to this claim provides:

 (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(b)       that they are of different civil status (the “civil status ground”),

(c)        that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

…

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

(h)       that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(j) that 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”).

The respondent asserts that for the complainant to get her case off the ground, she must at the very outset demonstrate, the burden being firmly on her that she has been treated differently and in a less favourable way to a comparator, who must be another service user of the respondent. It was submitted that as per the above, this less favourable treatment must be within the limitations of the legal service that the respondent provides to her, solely as an information provider/ advisor. 

It was submitted that the complainant has failed in all of her discrimination claims to identify a legal comparator, namely another parent of a child who is registered with the respondent. The respondent submits that the complainant therefore has not demonstrated that she has been treated differently due to her race, her civil status, her family status or her disability as compared to another parent of a child registered with the respondent who are of a different race, a different civil status, a different family status, or a service user with a different disability or no disability, as required under the 2000 Act.

The respondent asserts that this is fatal to the complainant’s entire claim. The within claim must be dismissed for failing to identify a comparator and failing to establish a prima facie case of discrimination on the grounds identified or any ground.

The respondent states that the complainant’s son is registered with the respondent as having an intellectual disability, having been assessed in 2017 and 2022 by way of professional reports. The respondent states that since 12 January 2023, the complainant’s son has been enrolled in a Named Special School but has not attended school. The respondent states that it understands that the Department of Education granted the Home Tuition Grant scheme to the complainant’s son at the request of Tusla to provide support to allow the complainant’s son transfer into the school setting. It states that this supplementary education scheme was an exceptional measure. However, the respondent understands that this has not proven effective for the 2022/2023 school year.

The respondent states that to support and enable the complainant’s son to attend school, Home Tuition was sought in the first term of 2023/2024 when the complainant’s son did not attend school. The respondent states that it understands that a Court has appointed a Guardian Ad Litem for the complainant’s son. It states that although Tusla Education and Support Services, Tusla and the Guardian Ad Litem are not a party to these proceedings, the respondent understands that it remains their goal to progress the complainant’s son to attend school at the Named Special School.

Race Discrimination Claim

The respondent submits that the complainant has failed to identify a comparator in this claim, that is a parent of a child registered with the respondent who has been treated differently due to her race.  As the respondent understands it, the following is the totality of the complainant’s race discrimination case. At the hearing, the complainant made bare allegations that she was discriminated against on the grounds of her race. The complainant, when requested by the Adjudicator to particularise this claim, referred to an employee named “Rita from Finance” who allegedly said to her “go home”.   

The respondent states that contrary to this evidence given under oath at the hearing, the complainant makes a different submission in her written submission delivered prior to the hearing, namely that an employee of the respondent (RW) stated on an unspecified date that:

“disability rights are not recognized in quote ‘my state’ but the UK and quote to ‘go home then’ if she wishes to exercise her right to such section 38 of the Disability Act 2005” (at paragraph 96 of the complainant’s written submission).

The respondent states that the complainant’s contradiction in evidence should be taken into consideration by the Adjudication Officer when determining if this incident occurred at all, which the respondent maintains that it did not.

The respondent states that despite being questioned by the Adjudication Officer for further particulars to allow the respondent to investigate the allegations and respond to same, in accordance with natural justice and fair procedures, the complainant could not particularise this claim any further.  

The respondent states that no date for this alleged incident was provided by the complainant either on the ES1 Form or at the hearing. It was submitted that this begs the question whether this incident, if it even occurred, is statute barred, in particular whether this incident occurred in the cognisable period from 1 March 2023 to 31 August 2023 (the date of the ES1 Form (if the ES1 Form is going to be interpreted by the Adjudication Officer as a Workplace Relations Complaint Form, as no Complaint Form was submitted by the complainant).  The respondent states that it is disappointed to hear the complainant make such serious allegations against it and takes such allegations extremely seriously.  

The respondent asserts that it was not put on notice of the complainant’s race. Even if the complainant can demonstrate that she mentioned her race to the respondent to one employee in an agency of 230 permanent employees, the respondent vehemently denies that it treated the complainant differently due to her race.

The respondent denies that an incident such as this occurred either in the time limit provided for under the 2000 Act or at all. The respondent will give evidence under oath that following on from the first hearing day, the respondent endeavoured to find a “Rita” who may have been employed in “Finance”. The respondent will confirm in evidence that it does not believe any such person exists.  

The complainant has never put the respondent on notice of such a complaint by way of an internal informal or formal complaint.  It is the respondent’s position that it is frivolous and vexatious to suggest that the complainant was treated differently by the respondent in some way due to her race.  

Civil Status Discrimination Claim

Section 2 of the 2000 Act defines “civil status” as:

being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.

It was submitted that the complainant has failed to particularise any claim in relation to this allegation and she has therefore failed to raise a prima facie case of civil status discrimination. The burden, it is submitted, has not shifted to the respondent.  

In the absence of any particularisation of this claim, the respondent cannot respond to same, save for vehemently denying that the respondent did not during the cognisable period, or at any time, treat the complainant less favourably due to her civil status as compared to another parent of a child registered with the respondent.

Family Status Discrimination Claim

“Family status” is defined at section 2 of the 2000 Act as:

being pregnant or having responsibility—

(a)         as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b)         as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.

The respondent asserts that as above, the complainant has failed at the first hurdle in failing to identify a comparator, namely another parent of a child registered with the respondent with a different family status.  The respondent states that it begs the question how a family status claim can be maintained in this case, when a primary function of the respondent is to provide a service to schools and children with educational needs/ a disability and their parents, i.e. to provide a service to service users with the same family status as the complainant.  It was submitted that the  complainant has not particularised this claim and she has therefore failed to establish a prima facie case of family status discrimination. It is submitted that the burden has not shifted to the respondent to respond to such a claim.

Disability Discrimination Claim

“Disability” is defined at section 2 of the 2000 Acts as:

(a)        the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)       the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)        the malfunction, malformation or disfigurement of a part of a person’s body,

(d)       a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)        a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

Section 4 of the 2000 Acts addresses discrimination on the ground of disability 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.

For the complainant to obtain protections under the 2000 Act for a failure to reasonably accommodate her, the respondent submits that she must first demonstrate (and before the burden shifts to the Respondent) that:

(i)      The complainant has a legal disability demonstrated by medical evidence within the meaning of section 2 of the 2000 Act (above);  

(ii)     If the complainant establishes that she has a disability above, that that specific disability is linked to and requires a specific type of accommodation, and without that accommodation “it would be impossible or unduly difficult” for her to avail herself of the service (as per section 4(1) of the 2000 Act);

(iii)    The complainant put the respondent on notice of that disability. The complainant has indicated a hearing impairment, which is the only disability that the respondent is aware of.

(iv)   The complainant requested reasonable accommodation from the respondent;

(v)     The complainant’s request for reasonable accommodation was unreasonably refused within the cognisable period.

It is submitted that the complainant fails to demonstrate a failure to reasonably accommodate her based on the above.  

Accessibility measures by the respondent 

The respondent submits that it operates various accessibility measures to ensure access to its service and website are as user friendly as possible. The website details the respondent’s commitment and compliance with recognised accessibility standards. A text to speech function across the website is in operation, whereby highlighted text can be accessed by audio. 

It states that such is the respondent’s commitment to continuous improvement of services, including accessibility for its users, the respondent’s Head of IT has initiated an ongoing project on the respondent’s website redesign. This significant redesign project included extensive engagement with stakeholders, including parent and disability representative groups. The respondent submits that the ongoing work that the organisation undertakes illustrates its commitment, awareness and responsiveness to providing reasonable accommodations and responding to access needs to a range of service users.

Request for “reasonable accommodation”

The respondent states that in relation to this complaint, it appears that the complainant makes two bare allegations dating back to 2018. 

(i)                 First, in relation to the respondent’s Access Officer, that “the respondent {my emphasis} have not offered access officer support contrary to section 26 and 28 of the Disability Act, 2005” (paragraph 95 of the complainant’s submission).

(ii)                Second, in relation to a request for a SENO to visit her home, that in an email between the parties dated 31 May 2018 provided by the complainant to the WRC, she alleges that she has a “simple request” – a “meeting with the SENO in my house, with my son, advocate and I in attendance”. It can only be presumed that this is the request for accommodation that the complainant refers to for this complaint, although she does not particularise this in her submission.

The respondent asserts that both of these complaints relate to the same chain of correspondence with the respondent in May and June 2018. This 2018 claim is therefore manifestly out of time and should be dismissed as statute barred.

Failure to “offer” the Respondent’s Access Officer 

The respondent states that without prejudice to the objection that the claim is out of time, the claim itself that an Access Officer was not offered to the complainant in 2018 is factually untrue even on the plain reading of the correspondence itself. As set out correspondence, Mr GR of the respondent informs the complainant:

“It is open to members of the public to raise issues with the Access Officer directly if they wish to do so”

The respondent further states that it clearly outlines in its Customer Charter the availability of an Access Officer.  An information sheet on the respondent Access Officer is further separately provided on the respondent’s website. The respondent’s website confirms that the Access Officer “can arrange extra help for people with disabilities who wish to use the respondent’s information and services including local services”.

Failure of a SENO to visit the Complainant’s home 

The complainant’s request on 31 May 2018, notwithstanding it is out time, is not a reasonable request for accommodation. A SENO cannot be compelled to make visits to parent’s homes. For health and safety reasons, the respondent’s policy is that SENOs do not visit parents’ homes. In fact, when the manager of the SENO working with the complainant indicated that a home visit would not be possible, the SENO immediately offered to meet the complainant at a mutually agreeable venue.

The respondent states in summary, the complainant has never been denied reasonable accommodations within the cognisable period or at all to allow her to use the respondent’s service. This complaint is denied.

Victimisation Claim

The respondent submits that the cognisable period based on the Adjudication Officer treating the complainant’s ES1 Form as a Complaint Form is six months, from 1 March 2023 to 31 August 2023.  It was submitted that the complainant has failed to establish a prima facie claim of victimisation. It submits that the complainant has not demonstrated a comparator to whom she alleges she has been treated less favourably, as required by section 3(2)(j) of the 2000 Act. Nor has she demonstrated how she has been victimised within the meaning of the law. The respondent states that it cannot respond to such a claim without any particulars and denies this claim in its totality.

Harassment Claim

“Harassment” is defined at section 11(5)(a)(i) of the 2000 Act as follows:

any form of unwanted conduct related to any of the discriminatory grounds …

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The respondent asserts that the complainant made a bare allegation under oath at the hearing that two employees of the respondent stated, at different times, “why have a child if you are so disabled”. The respondent submits that the complainant alleges, only when questioned by the Adjudication Officer, that this was stated to her “three years ago” (2021) by the first employee, and “in 2022” by the second employee.  The respondent submits that these complaints as alleged by the complainant are outside the cognisable period of 1 March 2023 to 31 August 2023. The complaints should be dismissed as out of time. 

The respondent states that without prejudice to the legal objection that this claim is statute barred, it strenuously denies that any such comments were made by anyone in the organisation, which prides itself on inclusion and diversity.

Testimony of Mr AT (Principal Officer, Head of Systems & Innovation of the Respondent)

Mr AT states that he has been with the respondent more than 20 years. He states that the respondent was established to improve the delivery of educational services to persons with special educational needs. The organisation has responsibility for supporting and advising on the education provision for children nationwide. Mr AT states that the organisation is operated through a national network of Special Educational Needs Organisers (SENO’s) Advisors and Visiting Teachers. SENO’s liaise with parents and schools and Health and Education professionals to provide and review resource allocations to support children with special educational needs.

Mr AT states that the organisation is under the aegis of the Department of Education. He states that they receive funding in the form of resource allocations/special education teaching hours. He states that they work in conjunction with Tusla in relation to Education Support Services. Mr AT stated that “if a child is not attending school, they have to ask why”.  In such a case, he states that the welfare officer will try and seek a placement. The SENO will organise the additional supports i.e. going into schools, learning support needs, assist children with significant care needs etc. Mr AT states that the organisation would look into assistive technology for children for example text/write software where required. The respondent would provide transport to and from the school. Mr AT states that they also have a range of practical publications for parents. The role of the respondent is around reaching out to parents and providing advice on what options are available in terms of schooling.

Mr AT stated that SENO’s act as an advisory service to parents and provide guidance. This involves early learning, i.e. kids under 6 into primary or special school / children going into post primary or special school. He stated that they provide bridging between schools. He stated that its main role is to get the child a suitable school placement.

In relation to the allegations made by the complainant, Mr AT states that they never had a person named “Rita” in Finance Division. He further states that the respondent never received a complaint from the complainant in this regard.

In relation to accessibility measures, Mr AT states that its website is user friendly and it has ways to increase the size of the font of the text. He states that the respondent has done a lot of work with stakeholders to ensure that the information on its website is accessible. In relation to someone with a hearing impairment, it has an interpreter within the school when a parent visits. Mr AT states that it has the availability of an Access Officer. He states that the organisation provided information and support to the complainant. He states that the complainant advised that she has a hearing impairment and would like to communicate via e-mail. Mr AT states that there was no refusal by the respondent to provide reasonable accommodation.

Mr AT states that in relation to the complainant’s request for a SENO to attend at her house, SENO’s visiting parents houses is highly irregular. It is not the role of a SENO to do so. He states that the offer was made to the complainant to meet at any mutual setting other than the home. In relation to the complainant’s claim that she was victimised, in that, staff of the respondent referred her to Tusla; Mr AT states that this claim is baseless as they have no function to refer parents to Tusla.

Testimony of Ms CG (Acting Specialist Lead with the Respondent)

Ms CG states that she has been working with the respondent since 2004. She stated that she has had no contact with the complainant since November 2020. Ms CG states that she utterly refutes the comments attributed to her by the complainant “why would you have a child when you are so disabled”.  Ms CG further stated that her role related to school placement and that she never made an approach /statement to the authorities or the Gardai that the complainant was wilfully neglecting her son as attributed to her by the complainant.

Closing Statement of Respondent

The respondent submits that further to the preliminary objections raised in its substantive submission; the respondent acknowledges that it provides a service to the complainant, that service, however, is confined to an advisory/ information provider to the complainant, as a parent of a child that is registered with the respondent. 

The respondent submits that the complainant has not demonstrated that the respondent treated her less favourably when providing that service as compared to another parent of a child registered with the respondent (a legal comparator). The respondent states that the complainant has failed to identify any appropriate legal comparator to whom she compares herself on any of the grounds that she has alleged discrimination.

The respondent states that the complainant has further failed to establish a prima facie case of discrimination in failing to provide appropriate particulars of her claim. It is submitted that the burden has not shifted to the respondent in any of the claims. 

The respondent submits that the cognisable period of the within complaint is 1 March to 31 August 2023. It states that the complainant has stated that she is a qualified lawyer. The respondent points to the fact that the complainant had legal advice when she submitted her ES1 Form to the respondent.

The respondent asserts that the burden of proof has not shifted in this case. As an example, the respondent refers to the complainant, in relation to her complaint on grounds of race, “Rita in Finance said Go Home”. The respondent states that under cross examination at hearing, the complainant said “Ruth” made those comments.   The respondent refutes that said comments were made at all. At any rate, the complainant alleges that these comments were made in 2021/2022 and are therefore manifestly out of time.

The respondent submits that under the family status/civil status ground, the burden of proof has not shifted.

The respondent asserts that in relation to the disability ground, the complainant never requested reasonable accommodation for a hearing impairment.

The respondent submits that in relation to the comments attributed to Ms CG by the complainant, Ms CG stated in her testimony at hearing she never uttered such words as “Why would you have a child when you are so disabled” and refuted such allegations. The respondent submits that the last communication Ms CG had with the complainant was November 2020 and therefore the complainant is way out of time.

In conclusion, the respondent refutes the claims made by the complainant. It submits that the within complaints are manifestly out of time and the complainant has failed to establish a prima facie case of discrimination on any of the grounds cited. 

Preliminary Issues –  No Complaint Form, Notification Procedures not complied with, no discriminatory act within the 6 month cognisable period

The complainant confirmed at the hearing that she is making the within claim as a parent of a child who is registered with the respondent. I note that section 20 (1) (a) and (d) relates to the service that the respondent provides to parents as follows;

(a) to disseminate to schools, parents and such other persons as the Council considers appropriate information relating to best practice, nationally and internationally, concerning the education of children with special educational needs;

…

(d) to make available to the parents of children with special educational needs information in relation to their entitlements and the entitlements of their children

I am cognisant that the “service” provided to the complainant in the within matter relates to a advisory/information provider, where the respondent provides support, guidance and advice to parents/guardians of a child registered with it.  

The respondent has argued that the WRC does not have jurisdiction in circumstances where the complainant has not lodged the proper Complaint Form and the notifications procedures pursuant to section 21(2) were not complied with.

I am cognisant of the caselaw in County Louth Vocational Educational Committee v Equality Tribunal  wherein the Supreme Court held that there is “nothing sacrosanct” about using the EE1 Form to activate the Tribunal’s jurisdiction and that the complaint forms are not statutory forms. The Supreme Court found that any method of written communication would be sufficient.

Section 21 (2) of the Equal Status Act provides that a complainant must notify the respondent of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. This notification must be in writing; must give details of the nature of the complaint and must state the complainant’s intention to seek redress under the Acts if there is no satisfactory response.

Section 21(3)(a)(ii) provides that: “exceptionally, where satisfied that it is fair and reasonable in  the particular circumstance of the case to do so direct that section (2) shall not apply in relation to the complainant to the extent specified in the direction,” 

Having carefully considered these matters, bearing in mind the disabilities that the complainant has outlined on her own behalf (Meniere’s disease, Aspergers, hearing impairment, difficulties with her eyesight) together with the complex needs of her severely autistic son, I am satisfied that the complainant has established exceptional circumstances in order to dispense with the above notification requirements. In the particular set of circumstances pertaining in the within case, I find that it is fair and reasonable to do so. 

Section 21(6) of the Act provides that a complaint of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination. 

Based on the lodgement of the within claim, I note that the cognisable period of the complaint is 1 March 2023 to 31 August 2023. However, I am cognisant from the evidence heard and written submissions that the complainant refers to complaints going back, spanning a ten year period.

The respondent submits that the complaints are manifestly out of time and the complainant has failed to establish a prima facie case of discrimination or victimisation on any of the grounds cited. 

Time Limit Issue

In relation to the issue of Time -Limits, the Labour Court in Determination EDA 1124 Hurley v County Cork VEC determined: “that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.” and “On the evidence adduced there is no basis whatsoever upon which the Court could conclude that either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly. Even if the complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limits prescribed by Section 77(5) and are statute barred.”

I note that the complainant’s son is registered with the respondent as having an intellectual disability, having been assessed in 2017 and 2022 by way of professional reports. I note that since 12 January 2023, the complainant’s son has been enrolled in a Named Special School but has not attended school.

I am cognisant of the evidence given by the respondent where it stated that the Department of Education granted the Home Tuition Grant scheme to the complainant’s son at the request of Tusla to provide support to allow the complainant’s son transfer into the school setting. I note that this was done as an exceptional measure but the respondent stated that it understands that this has not proven effective for the 2022/2023 school year.

The respondent states that to support and enable the complainant’s son to attend school, Home Tuition was sought in the first term of 2023/2024 when the complainant’s son did not attend school. The respondent states that it understands that a Court has appointed a Guardian Ad Litem for the complainant’s son. It states that although Tusla Education and Support Services, Tusla and the Guardian Ad Litem are not a party to these proceedings, the respondent understands that it remains their goal to progress the complainant’s son to attend school at the Named Special School.

Based on all of the evidence heard in the within matter, I am satisfied that the various education and school authorities have a crucial role in ensuring children attend school and that the necessary supports are put in place to facilitate a child’s right to access to education. In my view it is a delicate balance in considering the needs of the child and family concerned with that of the education and school authorities who have a duty to ensure that every child has access to education and can attend school where a suitable school placement is deemed appropriate based on the needs of the child in order to benefit the child. 

I note that there was a court order in respect of the progression of the complainant’s son to attend at a Named Special School. However, although the child was enrolled in the Named Special School commencing first term 2023/2024, the complainant’s son did not attend at the school.

The evidence presented at hearing was that, going forward, the complainant would not be in a position to access the Home Tuition Grant as there was a suitable school placement available for her child.  The complainant did not deem the placement in the Named Special School suitable for her child who has severe autism and complex needs. The complainant subsequently lodged a complaint with the WRC on 31 August 2023.    

While the complainant has raised a number of issues in the manner in which she was treated by the respondent and other education and school authorities over a 10 year period; the first issue for decision by me is whether or not the complaint is within the statutory time limit.

I have very carefully examined all of the evidence adduced in the within claim and considered the precedent caselaw in the Labour Court in Determination EDA 1124 Hurley v County Cork VEC wherein the Court determined that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.

In the within matter, I find that the complainant has not particularised any act of discrimination by the respondent on any of the grounds cited in the period of six months ending on the date on which she presented her claim. In those circumstances and given the strict time limits set out in the Act, I have no jurisdiction to investigate the complainant’s allegations regarding events going back which span a ten year period as these claims are statute barred.

I find that as the complainant has failed to establish a prima facie case of discrimination and  victimisation in respect of alleged treatment by the respondent within the six months immediately preceding the date of referral of her complaint; the remainder of the alleged incidents of discrimination and victimisation submitted by her in respect of the period prior to that (which is outside the prescribed time limits set out in the Act) are statute barred and her complaint fails in its entirety.

Equal Status Act, discriminatory treatment, disability, race, civil status, family status, harassment, victimisation