Complainant

Respondent

Anonymised Parties

A secondary school student

The board of management of a secondary school

Representatives

Aisling Mulligan BL, instructed by KOD Lyons LLP

Rosemary Mallon BL, instructed by Mason Hayes and Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00060015-001

15/11/2023

The Complainant is a minor. His mother has referred this complaint on his behalf. The Complainant has ADHD and dyslexia. He is alleging that he was discriminated against on the grounds of his disability when he was denied entry to Transition Year.

Transition Year (TY) is an optional one-year programme that can be taken by secondary school students in the year after the Junior Cycle. TY can help students as they change from the more dependent learning style of the Junior Cycle to the more independent, self-directed learning style of the Senior Cycle. It also offers opportunities for personal, social and academic development and experience of adult and working life.

The Respondent denies the complaint.

The Complainant asserts that he was discriminated against by the Respondent in respect of its withdrawal of a place on the TY programme in or around April 2024.

This decision was appealed in writing by the Complainant and this appeal was considered by the Respondent at a meeting on 3 May 2023. During that meeting, the Respondent acknowledged that there was sufficient space in the TY programme to enable the Complainant to participate in the programme.

The Respondent wrote to the Complainant’s parents in or around 5 May 2023 outlining its decision to uphold the determination of the Principal that the Complainant’s offer of a place in TY had been withdrawn.

On 14 May 2023, the Complainants’ parents wrote to the Respondent putting it on notice of the Complainant’s specific diagnosis. The Respondent was also provided with two expert opinions – one from CAMHS (Child & Adolescent Mental Health Services) and one from the CEO of ADHD Ireland – which set out that behavioural issues and impulsiveness form part of the Complainant’s disability profile. In particular, the expert opinion identified that the school should have implemented behavioural management interventions in line with the Complainant’s diagnosis. The expert opinion also indicated that the Complainant would benefit from the TY program and that it would assist him in learning and developing the skills which were underdeveloped by virtue of his disability.

On foot of this letter, the Respondent confirmed on 24 May 2023 that it would seek an independent review of “all aspects of the correspondence be carried out and that the Board consider the recommendations coming out of that review”.

The Respondent convened a meeting on 20 May 2023 and a Barrister was proposed to review the “policy and procedures to date.” The Barrister is not an educational psychologist nor, it appears, does he have any training in respect of disability. The Complainant asserts that the review was not an independent review of the Complainant’s own circumstances but a paper review of the school policies. The Complainant asserts that Barrister did not address the specific expert opinion which had been submitted on behalf of the Complainant.

The Respondent considered the appeal of the Complainant on 15 June 2023 and determined that:

After lengthy discussion, the unanimous conclusion was that the board should continue to support the decision made on the ground by the school. The board concluded that it was not appropriate for such decisions to be considered at board level as the school had followed all its own procedures correctly. It was decided that the decision of the board should be conveyed to the parents by registered post.

On 29 June 2023, the Respondent wrote to the Complainant’s parents outlining the process which informed its decision of 15 June 2023. The Complainant submits that the decision relies exclusively on the review by the Barrister. It outlines that the Barrister was provided with the expert opinion and correspondence from the CEO, ADHD Ireland so that he might offer his conclusions on an informed basis. In particular, the letter stated:

The Board of Management, in response to your request review the decision to withdraw the offer of a TY place for [the Complainant], decided to engage the services of a barrister with experience in dealing with education law and school related issues to review the TY policy and procedures. Along with the copies of correspondence enclosed, I also forwarded to the barrister copies of your letter to the Board of Management outlining your concerns and your reasons to requesting a review. I also included copies of the correspondence from [a named expert] and [the CEO, ADHD Ireland] so that the barrister would have an understanding of your concerns and so that he could make an informed conclusions and offer a balanced view.

I have enclosed a copy of the response to the board.

The Complainant submits that, at no point did the Barrister consider the need for a young person with a disability to have a behavioural management intervention plan nor did it identify why such a plan was not required by the Respondent in compliance with its statutory obligations. Finally, the Barrister identified that the school had “a duty to consider the other 98 students” but failed to take into account that the allegedly unacceptable behaviour of the Complainant would persist in fifth year and so the Respondent was depriving the Complainant of a crucial opportunity for development without any proportionate or measurable gain to the school community.

The Complainant submits that, notwithstanding the expert opinion regarding the requirement for a behavioural management intervention, this was not considered by the Respondent. The Complainant further submits that the Respondent failed to recognise that the school had not followed an identified procedure, or any procedure, correctly.

The Respondent failed to consider making reasonable accommodation

The Complainant further submits that the review was also flawed, and the Respondent failed to recognise same. Notwithstanding the letter of 15 June 2023, the Respondent failed to provide a proper procedure; recognise that the procedure which was followed was flawed; and took into account information which ought not to have been considered.

The Complainant was offered a place in TY on 24 March 2023. He was notified that “[the Complainant’s] place on the programme will be subject to review should any disciplinary issues arise between now and the end of term”.

The Complainant submits that the Respondent was not entitled to impose such criterion upon him as the Admission Policy for Entry into the Transition Year (the Policy) makes no provision for a conditional offer. Instead, the Policy outlines that only serious breaches of the school’s Code of Behaviour might result in the withdrawal of the offer of a place in the TY programme. Where such a serious breach is deemed to have occurred, the discretion to withdraw the offer (or not) of that place remains at the discretion of the school.

The Complainant further submits that as he was accepted onto the Transition Year Programme, it is only the incidents between 24 March 2023 and an unspecified date in April 2023 which ought to have been considered by the Respondent when reviewing the decision of the Principal.

The Complainant submits that this distinction was never identified by the Respondent. Instead, the Respondent considered the totality of the Complainant’s behaviour in assessing the school’s determination. This is equally evident in the review as the Barrister was provided with the Complainant’s disciplinary record from 1 December 2022 to 5 May 2023.

In addition to the foregoing, the Complainant submits that it is only the incidents that constituted serious breaches of the Code of Behaviour that could be considered. Based on the information available to the Complainant, there were five incidents within the prescribed time frame.

·       INCIDENT 1: 27 March 2023 (Maths class) “disrupted the class, talking across the room to [another student]”. According to the Code of Behaviour, talking in class is considered a less serious breach of the code. It is therefore submitted that this breach of the Code of Behaviour could not be considered in determining whether the Complainant’s place in TY could be withdrawn.

·       INCIDENT 2: 30 March 2023, The Complainant was “out of bounds” and not attending his own class. This is not expressly identified in the Code of Behaviour at all. It is therefore submitted that this incident should not have been considered.

·       INCIDENT 3: 19 April 2023 (Maths class) “[The Complainant] poured water on [another student]” might have been categorised as bullying (a serious breach of the Code) but it was categorised as disruption, considered a less serious breach of the Code. It is, therefore, submitted that this breach of the Code of Behaviour could not be considered in determining whether the Complainant’s place in TY would be withdrawn.

·       INCIDENT 4: 17 April 2023 (Maths class) “[The Complainant] was involved in water being spilled over desks and floor.” This was described as disruptive but could, taking the Respondent’s case at its height, be considered vandalism and is a serious breach of the code of conduct.

·       INCIDENT 5: 27 April 2023, “[The Complainant] pushed another student. [The Complainant] told me that he pushed her in retaliation because she said, “you are going to fail your senior cycle exams”. This was described as aggressive behaviour, which is not identified in the Code, but it could, taking the Respondent’s case at its height, be considered bullying, which is a serious breach of the Code.

It appears that it was the role of the Respondent to determine whether the incidents of 27 April 2023 and 17 April 2023 were sufficiently serious to warrant the Principal exercising his discretion to withdraw the Complainants’ offer of a place in Transition Year. The Admissions Policy does not require that a place be withdrawn due to serious breaches but confirms that the placement “may” be withdrawn.

Finally, the Respondent failed to consider the rationale provided to the Complainant in April 2023. The school identified that the Complainant had failed to fulfil the condition of “good behaviour for the remainder of the year”. This is not a condition that is set out by the Admissions Policy.

Based on the foregoing, the Complainant submits that Respondent ought to have considered whether the Principal had taken into account the Complainant’s disability in the exercise of his discretion. If he had done so, the Respondent would have determined same in the negative.

The Complainants’ case

It is submitted that the Complainant has set out a prima facie case of discrimination. It is accepted between the parties that the Complainant has ADHD which constitutes a disability for the purposes of the Equal Status Act 2000, as amended (the “Act”). It is accepted that the Respondent is an educational establishment which may not discriminate in relation to the access of a student.

It is further submitted that the facts as set out above as sufficient to raise an inference of discrimination. The actions of the Respondent do not need to be malicious, but the Complainant was directly discriminated against as he could not take part in a school activity due to behaviours which were known to form part of his profile of disability.

The Respondent’s case

The Complainant understands that it is the Respondent’s case that the Complainant was not refused a place in TY because of his disability, rather it was his disciplinary record that caused the refusal. The Complainant submits that the Respondent has failed to recognise or have regard to the causative link between the Complainants’ behavioural issues and his disability.

In its submission to the WRC, the Respondent stated that it was considered not to be in the Complainant’s best interests for him to have access to TY. There is no evidence of this view nor was there evidence that this view was communicated to the Complainant, his parents or the Barrister. The Complainant asserts that the only rationale provided for the withdrawal of the offer a place in TY pertained to the alleged behaviour of the Complainant.

In respect of the Respondent’s reliance on sections 4(4) and 7(4) of the Equal status Acts (as amended), it is submitted that where the Respondent has been able to accommodate the Complainant in fifth year without a serious detrimental effect on the educational services provided to other students, there is no evidence that there would be a serious detrimental effect on other students in TY if the Complainant had been allowed to maintain his place.

Direct evidence of the Complainant’s mother

The Complainant’s mother said that he had not had any additional educational assessments for secondary school to those that had been carried out while he was in primary school.

The Complainant’s mother said that the first time she had sight of the disciplinary slips her son had received while he was in third year was in May 2023. She did not take any action in this regard as the school had not raised any concerns about her son’s behaviour.

The Complainant’s mother said that the Complainant had been handed a letter in school on 28 March 2023 offering him a place in TY. He sent a blurry image of the letter to his parents, but they never actually had sight of the letter. She asked her son for the letter, but he could not find it. She was not aware that her son’s offer of a place in TY was conditional.

The Complainant’s mother said that she did not recall receiving any correspondence from the school between mid-March and the end of April 2023. The Complainant’s parents received a letter in the post on 8 May 2023 referencing an appeal. She was a confused by this because they had not put in an appeal.

The Complainant’s parents contacted the school immediately and arranged a meeting with the Principal. The parents met with the Principal and a Deputy Principal who explained to them that their son’s place in TY had been withdrawn due to his behaviour.

The Complainant’s mother said that the discipline slips which were provided to them, were indicative of a pattern of behaviour which the Complainant’s parents had learned to recognise. They successfully managed this behaviour by recognising the triggers and working with him.

The Complainant’s mother said that the Complainant’s intention was never to be bold. His behaviour cannot be separated from his diagnosis. His behaviour is symptomatic of his disability. The Complainant’s mother said that he did not understand the link between his behaviour and the outcome.

A structured environment can be stressful for the Complainant and may result in disruptive behaviour. The Complainant’s mother said that she had direct experience with this as she was constantly managing and dealing with her son. One of the characteristics of his disability is impulsivity.

At the meeting with the Principal and Deputy Principal on 8 May 2023, the Complainant’s mother identified his pattern of behaviour but didn’t feel that she was being listened to.

The Complainant’s mother said that she did not know how her son would understand what was meant by a ‘conditional offer’. She did not know how he could manage without the help of his parents.

The Complainant’s parents tried to explain how their son would miss out on the educational experience that he would need if he was not allowed to progress to TY. The Principal undertook to think again about the issue. After the meeting, the Complainant’s father received a phone call to say that the Complainant would not be doing TY.

The Complainant’s parents felt a responsibility to appeal the Respondent’s decision. When the Complainant’s mother was made aware that a Barrister would be conducting a review into the matter, she asked if she could meet with him. She was told that as the Respondent was instructing the Barrister and that would not be possible.

The Complainant’s mother said that the Complainant had been given a conditional offer but that this had not been communicated to his parents. It would have been helpful if this had been done. The Complainant’s parents had years of experience of managing his behaviour which could have been used to address the issue which had arisen. The knew how to identify his triggers. The best approach was communication, breaking down the situation and putting a structure in place. There were no discipline slips after 8 May 2024 when the Complainant’s parents became aware of the issue.

The Complainant’s parents had worked with the school to prepare for the Junior Cert and reasonable accommodation had been provided to the Complainant. Furthermore, at the parent/teacher meeting in November 2022, no behavioural issues were raised.

The Complainant’s mother suggested that since most of the Complainant’s behavioural issues occurred during extra maths classes after school, the solution was to discontinue these maths classes.

The Complainant really wanted to do TY – he had expressed this at this suitability interview. Why would he sabotage himself?

On 23 June 2024, the Complainant’s parents received the outcome of the review.

The Complainant’s parents then tried to make an appeal under section 29 of the Education Act 1998 but were told that this was not the correct approach.

They then contacted the Ombudsman for Children who offered to provide mediation between the Complainant’s parents and the Respondent. This offer was declined by the Respondent. The Office of the Ombudsman for Children then contacted the Respondent and asked the educational opportunities would not be used as a disciplinary tool. The Office was told by the Respondent that TY was full, and that the Complainant would be going directly into fifth year.

The Complainant’s mother said that the Ombudsman for Children cannot compel anybody to take a particular course of action and, therefore, could not compel the Respondent to change its position.

The Complainant’s mother said that the impact on him was significant. He had a very difficult year in fifth year. He struggled educationally, emotionally and psychologically. He suffered from social isolation which was very difficult for his parents to observe. Once the Complainant entered fifth year, he engaged in school refusal.

The Complainant’s friends in TY were engaging in social activities from which he was excluded. His academic performance deteriorated. He was confused about what subjects to pick in fifth year as he had no chance to reflect on this matter during TY. He was also confused about his career options. The Complainant’s mother said that it was very hard at home and very hard on the Complainant. There was nothing his parents could do to undo the damage.

The Complainant’s mother wants a fair process for children with disabilities and recognition of their difficulties. TY is not a prize for good behaviour. Access should be fairer.

The Complainant’s mother said that she was at the hearing as the Complainant’s parent, and she was not in a position to name a comparator.

Cross-examination of the Complainant’s mother by Ms Mallon BL on behalf of the Respondent

The Complainant’s mother confirmed that the Complainant had movement breaks while doing the Junior Cert and in primary school.

The Complainant’s mother confirmed that the school did not contact her in relation to her son’s behavioural issues and that she was first shown his discipline slips in May 2023. She confirmed that she knew that the Complainant had had a number of detentions but that he had never moved to stage 2 in the disciplinary process.

Ms Mallon suggested that the Complainant had moved to stage 2 as he was ‘on report’. The Complainant’s mother confirmed that the Complainant was ‘on report’ in third year. She further confirmed that her husband signed the Complainant’s report every evening. She suggested that while they had been informed of the sanctions they were not told about the Complainant’s behaviour. The Complainant’s mother explained that she was under no illusion that the Complainant’s behaviour was far from perfect but that some of his issues arose from his disorganisation.

Ms Mallon suggested that only four or five disciplinary issues could be put down to disorganisation and that she would not accept that all of the disruption was as a result of the Complainant’s disorganisation. Ms Mallon asked if the Complainant’s mother would accept that over 50% of the disciplinary issues were caused by disruptive behaviour. The Complainant’s mother accepted that, mathematically, this was correct.

The Complainant’s mother agreed that he got detention and suggested that this was in line with the profile of a child with ADHD.

The Complainant’s mother confirmed that herself and her husband would discuss the Complainant’s reports from school with him and would explore how the situation could be improved.

Ms Mallon presumed that these discussions had been ongoing throughout the year. The Complainant’s mother responded that their discussions around detention usually contained less detail about the Complainant’s behaviour. The Complainant’s parents trusted the school process and were not going to question that. They felt that at no time was a serious breach of code of discipline indicated.

The Complainant’s mother confirmed that they knew that he was applying for TY. She confirmed that they did not have any discussion with the Complainant about how his behaviour might impact on his access to TY.

The Complainant’s mother said that they had no understanding of the interview process. Her husband spoke to a member of staff after the interview and was told that the Complainant did a good interview and would be offered a place.

The Complainant’s mother said that the Complainant sent her a blurry photo of his offer which she could not read. She tried to get her son to bring the letter home. Around that time her husband was in a cycling accident, and she was distracted. She felt that if the school thought that the letter was important, then it should have posted it to them.

Ms Mallon said that the Principal would give evidence that a letter was posted to them in April 2023. The Complainant’s mother said that she did not receive the letter.

The Complainant’s mother said that she did not know that he had appealed the decision to withdraw the offer of a place in TY. She felt that her son was probably scared that he had messed up. She felt that in his appeal, the Complainant was recognising that his behaviour was not acceptable. She accepted that his behaviour would disrupt other students.

Ms Mallon asked the Complainant’s mother what accommodations she wanted for her son. The Complainant’s mother said that she wanted communication with his parents. Ms Mallon responded that they had received communication from the Respondent – they got a slip every evening that had to be signed and they were notified when the Complainant was on detention.

The Complainant’s mother said that accommodation meant sitting down with the parents to ensure good behaviour for the remainder of the school year. The Complainant’s mother said that they did not receive information about the conditional offer. They should have been informed that the offer was conditional.

Ms Mallon suggested that the Respondent had informed them when it gave a letter to the Complainant to bring home to his parents. The Complainant’s mother disagreed that this was an adequate way of notifying them.

Re-examination by Ms Mulligan BL

The Complainant’s mother said that they did not bother to contact the school about the conditional offer as they had already been told that their son had a place in TY.

If their son’s behaviour was so bad, why did it not reach stage 3 in the Disciplinary Policy. The Complainant has never been suspended; his parents have never been called in; they were never informed of a serious breach of discipline.

The Complainant’s mother said that stages 1 and 2 of the disciplinary policy are a matter for the school. The Respondent says that the Complainant’s parents should be more proactive, but they had no means to do that.

The Complainant’s mother said that if the school had said that it needed to talk to his parents, they both would have gone in immediately.

In terms of reasonable accommodation, they would have devised steps to address the Complainant’s behaviour knowing his background and diagnosis.

The Complainant’s mother said that her son does not understand the consequences of his actions. He does not recognise “cause and effect”. This is a real struggle for people with ADHD. They cannot overcome their impulsivity.

For the Complainant’s mother, reasonable accommodation means recognising his behaviour and putting in place measures to ensure that a child with ADHD won’t be disadvantaged and will get the same opportunities as their peers. The key is communication and collaboration.

Conclusion

The Complainant submits that the Respondents’ terms of engagement in the TY programme, as set out in the letter of 24 March 2023, were outside the scope of the school’s admissions policy. The process of appeal undertaken by the Respondent was outside the scope of its own policy. The Complainant further submits that the Respondent took into account the Complainant’s behaviour prior to his conditional offer and after the offer was withdrawn.

At the board meeting of 15 June 2023, the Respondent determined that it would not interfere with the schools’ decisions, where the school had followed its own procedures correctly. The Complainant asserts that this is not the case.

The Complainant submits that the process which took place failed to take into account the Complainant’s specific disability and the recommendation of the expert that the school make available behavioural management intervention, in line with the Complainant’s diagnosis, which would provide reasonable accommodation to the Complainant. The Respondent also failed to take account and/or appropriately weigh the benefit to the Complainant when reaching their determination.

There is no evidence that any of the Complainant’s behaviour was escalated to a point of either suspension or expulsion and it is therefore unclear what legitimate aim the Respondent could rely upon to justify the withdrawal of the Complainant’s place in TY. Instead, the Respondent treated TY as a privilege and had no regard to the provisions of section 7 of the Act.

The Complainant does not accept that reasonable accommodation was not requested. The Complainant submits that it very clear that behavioural management intervention should have been considered. This is the form of reasonable accommodation which was specifically requested in the expert correspondence.

The Complainant is a pupil of the Respondent school. He was a student in third year at the relevant time that is the subject matter of the within complaint. While in third year he was quite a disruptive student with several incidents where he was reprimanded for his misbehaviour. At the time of the hearing, he was a student in fifth year at the school.

It is accepted that the Complainant has a diagnosis of ADHD and dyslexia and that he has a disability for the purposes of the Equal Status Act 2000, as amended (the “Act”).

The school offers students the opportunity to apply for Transition Year (TY) in third year. Typically, there are 125 to 130 students in third year and in general most of the students in third year apply for TY. There are only 100 places in TY, so places are limited and not everyone who applies will obtain a place.

The Complainant applied for a place in TY. 107 students applied to TY that year.

The Respondent’s admission policy for entry to the TY programme notes inter alia“Any serious breach of the school’s Code of Behaviour prior to the commencement of Transition Year may result in the withdrawal of the offer of a place in Transition year.” The admissions policy also provides for a right of appeal.

The Principal, the Year Head and one of the Deputy Principals consider all applications for TY. Four students were refused a place outright due to their previous disciplinary record and the Complainant and one other student received conditional offers due to their disciplinary record.

Any student with disciplinary issues who applied for TY was interviewed. The Complainant was interviewed. The purpose of the interview was to ascertain how serious he was about TY and for the school to determine whether he would benefit from the year and make a positive contribution to the year.

The Complainant was given a conditional offer of a place in TY which was set out in a letter. It is the Principal’s understanding that the Complainant sent a screenshot of the letter to his parents. The letter of 24 March 2023 specifically stated that “However, [the Complainant’s] place on the TY programme will be subject to review should any disciplinary issues arise between now and the end of term.”

Unfortunately, the Complainant’s behaviour remained disruptive and the conditional offer of a place in TY was revoked. This decision was made at a weekly Year Head meeting. At this meeting issues including discipline are discussed. It was noted that the Complainant had received various discipline slips. He had been warned after the first incident by his Year Head. However, the behaviour had continued. It was determined, therefore, to revoke the offer.

The Complainant had 19 discipline slips since September 2022 and 7 since he was offered a conditional place in TY.

By letter dated April 2023 the Complainant’s parents were informed that the offer of a place in TY was being withdrawn. The letter stated that this was as a result of “persistentunacceptable behaviour in the school” and that the Complainant was aware that the place was conditional on his good behaviour for the remainder of the year and that he had not adhered to that agreement.

The Complainant, himself, sought to appeal the decision to revoke the offer of the place.

The Board of Management considered this matter at its meeting on 3 May 2023. The minutes reflect the following:

Transition Year Appeals

There are 5 applications from students for TY acceptance.

[The Principal] went through the process for TY application – there is a deadline, the students must apply online. For students where it is not clear that they are appropriate, there is an interview. This is mainly due to behaviour and discipline issues, especially in third year.

Three of the students not offered a place have appealed with a letter to the Board. Two were offered under conditions and since then they have had more discipline slips and their offers were withdrawn.

[The Principal] read the three letters for the students that were not offered a place. The board asked if there was any precedent. [The Principal] replied that yes there was, in one case where the student was allowed in, and then last year, there were a number of appeals and they were refused. This resulted in some of those students leaving the school and doing TY in another school.

The main discussion of the Board revolved around whether or not this should be a board issue. It was felt by the Board that there are decisions made by the school that belong to the school as the Board does not have the nuance or information to intervene. The benefits of TY for students was acknowledged, especially its ability to allow the student to mature and change behaviour.

[The Principal] said that there were 100 places offered and accepted and that the schoolcannot cater for more than this as there is no facility for an extra class.

The role of TY was considered as it allows the student independence and gives them responsibility for managing their own time. However, with that there needs to be a confidence that the student will be able to do this and are suitable for this. The letters from the students did not show that they accepted responsibility for their behaviours.

Regarding the 2 offers which were then withdrawn, [the Principal] read the requests to overturn. The board acknowledged that these do not come under the space as they are 2 of the 100 offered places. However, the board felt that the Board should still not intervene in school decisions. [The Principal] acknowledged that there are students who were not offered places for procedural reasons but have perfect attendance and good behaviour.

The board discussed the role of the board as one where as a board we

-          Can give a view or advice

-          The decision should stay with the school

-          Board of Management should not make or overturn a school decision as this is a dangerous precedent to start.

It was felt that the Board cannot overturn a decision where a school process is followed as this undermines the authority of senior and middle management who should make these decisions. The initial letter to parents emphasises that discipline is core to running the school and that there is a focus on behaviour in the potential for entering TY.

The board recommended that the decision is to be left to the management of the school. Further to this the school will:

a)      Give further detailed consideration of the selection process to ensure all was followed

b)      Give a most compassionate view due to the transformative aspect of TY

c)       Ultimately the Board leaves the final decision to the school and the board will not intervene on individual cases.

The board recommended that the process for TY be reviewed in the next academic year.

The Complainant’s parents wrote appealing/objecting to the decision by letter dated 22 May 2023. In that letter they referred inter alia to the Complainant’s disability and the Act. They enclosed two letters of support – one from CAMHS (Child & Adolescent Mental Health Services) and the other from the CEO of ADHD Ireland.

By letter dated 24 May 2023 the Principal (who is also the Secretary to the Board of Management) wrote to the Complainant’s parents stating:

“With regard to the letter dated 22nd May 2023, I have discussed the matter with the Chairperson. We recommend proposing to the Board that a further independent review of all aspects of the correspondence be carried out and the Board consider the recommendations coming from the review. The Board would then inform you of the outcome of this review and of any subsequent decisions.”

The Board of Management met on 30 May 2023. The appeals from parents regarding their child’s exclusion from TY was discussed. The minutes note:

“[The Principal] gave a summary of the situation to date and informed the Board off the further appeals from the parents of [the Complainant] & [another student]. A lengthy discussion concluded that the best course of action was to engage the services of an independent professional to review the policy and procedures to date. [A named barrister] was proposed as a suitable person to carry out the review. It was suggested that he would have a response by the next board meeting on June 15th. [The Principal] to contact [the Barrister] tomorrow morning.”

In his review dated 10 June 2023, the Barrister stated:

“The students in question were informed, the parents were informed of the conditional nature of the entry requirements to TY. On the Transition Year Application procedures Policy, Page 1, it's clearly states that it is the students and Parents and/or guardians’ responsibility to ensure the application is made in time and in full. Ergo It is the student’s duty to inform their parents if there is any reason why they might not be considered for inclusion or more importantly if they have been warned about theirbehaviour and that an offered place could be withdrawn. Notwithstanding this, the school notified the parents of the situation. Parents have also a duty to read the Policies of the school with regard to their child's education.

Notwithstanding that the school has a duty to consider the other 98 students, it is also obliged to make its decisions in accordance with its own rules and its policy adopted by the board and communicated with the parents.

On perusal of the documentation provided and the reasons offered, I conclude that the Board has followed all the procedures set out in its policy.

Therefore, it is my view that the Board and the school have acted properly and within the policy guidelines and I would say, our duty bound to stand by the decision in withdrawing the offer of a place to the students affected in the manner it was done.”

The Respondent Board met on 15 June 2023. As noted in the Board minutes, the Barrister’s review was considered. After a lengthy discussion the unanimous conclusion was that the Board would continue to support the decision made on the ground by the school. The Board concluded that it was not appropriate for such decisions to be considered at Board level as the school had followed its own procedures correctly.

By letter dated 16 June 2023 the Complainant’s parents were informed of the outcome of the Board meeting on 15 June. The letter stated inter alia:

“I wish to inform you of the outcome of a meeting of the Board of Management which was held yesterday evening, Thursday, June 15th at the school.

All correspondence from parents along with supporting documentation was distributed and read aloud (as is customary) at the meeting. Responses from school management to correspondence was outlined by the principal. The report from the independent Barrister was also distributed and read at the meeting. Having considered at length all of the issues raised, including all correspondence and giving concern for the individuals involved as well as the best interests of the school and all its pupils, the Board of Management concluded that its position remains that any decision with regard to a Transition Year offer in this or any other case should remain with the school management and that the Board should not intervene in an individual case and overturn a school decision in relation to a Transition Year offer.”

 By letter dated 29 June 2023, the Principal wrote to the Complainant’s parents stating inter alia:

“The Board of Management, in response to your request to review the decision to withdraw the offer of a T.Y. Place for [the Complainant], decided to engage the services of a barrister with experience in dealing with education law and school related issues to review the T.Y. policy and procedures.

Along with the copies of correspondence and closed, I also forwarded, to the barrister, copies of your letter to the Board outlining your concerns and your reasons for requesting a review. I also included copies of the correspondence from [a medical expert and the CEO ADHD Ireland] so that thebarrister would have an understanding of your concerns and so that he could make informed conclusions and offer a balanced view.

I enclose a copy of the response to the Board.”

Throughout this time the school had several phone calls from both parents and there were meetings also with the father of the Complainant. The Complainant was also offered a conditional place to repeat fifth year if he wished. The Complainant’s behaviour in fifth year has been good.

Direct evidence of the Principal

The Principal said that 12% of students who commenced TY in 2023 had learning difficulties which was slightly over the national average of 9%. Most of these students have mild disabilities but some were more severe.

The Principal said that all pupils transferring from primary to secondary school have an educational passport which contains details of any additional needs they may have. When the Complainant transferred to the Respondent school, supports were put in place to address his additional needs. These were reviewed in September 2023 as part of a general review.

The Principal said that that there are approximately 130 pupils in each year and the school offers 100 places in TY. TY is generally not over-subscribed. The Principal confirmed that 107 pupils applied for places in TY in 2023 when the Complainant applied.

The Principal confirmed that behaviour was always a key criterion for entry into TY and that, in reality, all offers of a place in TY are conditional. In 2023 six students were interviewed for a place in TY, including the Complainant. It was explained to all of them why they were being interviewed. A student would have to have significant disciplinary issues to warrant an interview.

The interviews are conducted by the Principal, a Deputy Principal and the TY Coordinator. The decision of the interview board was brought to the weekly Year Head meeting which consists of the Principal; the two Deputy Principals; the six Year Heads; the TY coordinator; and the AEN (Additional Educational Needs) Coordinator.

The Principal confirmed that in 2023, four students were refused a place in TY because of disciplinary issues, none of whom had a disability. Two conditional offers were made – one to the Complainant and the other to a student who was not diagnosed with a disability. Of the students who received non-conditional offers of a place in TY in 2023, twelve had a diagnosed disability of whom two had ADHD and two were students from the ASD (Autistic Spectrum Disorder) class.

The Principal confirmed that the Complainant was offered a place in TY because he did a good interview. However, his offer was conditional due to his disciplinary record, particularly in third year.

In relation to the Complainant’s parents’ contention that they did not see his discipline slips until May 2023, the Principal said that once a student receives three discipline slips, they get detention. A pro-forma letter then goes home to the student’s parents. The nature of the student’s offence would be specified in this letter e.g. disruptive behaviour.

The Principal confirmed that the Complainant was put on report in third year. His parents were issued with essentially the same letter as the detention letter with the additional information that the student was going on report. A report which is signed at the end of every class goes home for signature by a parent.

The Principal suggested that the detention and report letters were a means of communication.

The Principal did not accept that stages 1 and 2 of the disciplinary process were the sole responsibility of the school. The school would always encourage parents to get involved at any stage and would encourage them to check their child’s journal every week.

Regarding additional measures to accommodate the Complainant prior to May 2023, the Principal said that all letters relating to TY were handed to the students to bring home. This was part of the TY ethos that a large part of TY is making the students responsible for their own actions.

The Principal confirmed that he wrote to the Complainant’s parents in April 2023 informing them that the school had “decided to withdraw the offer of a place in Transition Year for [the Complainant]”. The Principal said that he was satisfied that the letter was prepared and left out for posting.

The conditional offer of a place in TY was made on 24 March 2023. Several disciplinary offences by the Complainant occurred since then. The Principal viewed them all as serious breaches of the disciplinary code. The intention of the Complainant may have been benign, but the outcome of his actions was not.

The Principal confirmed that the decision to withdraw the Complainant’s conditional offer was made at the Year Head meeting due to the accumulation of discipline slips. The Complainant’s behaviour came up at over several consecutive weeks.

The school had to consider the impact on other students. The school has to be able to depend on students in TY to carry out their work independently.

The Principal said that he did not recall hearing about the Complainant’s father’s accident prior to the adjudication hearing.

The Principal confirmed that he had considered putting the Complainant on report but felt that the conditional offer of a place in TY was a form of report.

The Principal referred to the Board Minutes of 3 May 2023 which show that “the Board felt that it could not overturn a decision where a school process is followed as this undermines the authority of senior and middle management who should make these decisions”.

The Principal referred to the letter from the Complainant’s parents dated 22 May 2023 in which they objected to the decision to withdraw their son’s offer of a place in TY. The parents’ letter was accompanied by a letter from CAMHS and from the CEO of ADHD Ireland.

The Principal confirmed that the Board considered these letters at its meeting on 30 May 2023. The Board decided to seek an independent review to assess if the school had acted in accordance with its policies. The Principal confirmed that all of the Complainant’s parents’ documentation was provided to the Reviewer including the correspondence from the experts. The Principal also confirmed that the Board saw these documents.

The Reviewer was of the view that “the Board and the school have acted properly and within the policy guidelines and … duty bound to stand by the decision in withdrawing the offer of a place to the students affected in the manner it was done”.

The Principal confirmed that he communicated the Reviewer’s response to the Board on 6 June 2023. He also confirmed that he wrote to the Complainant’s parents advising them of the outcome of the review.

The Principal asserted that the Complainant was not denied a place in TY because of his diagnosis of ADHD and that the decision had nothing to do with this.

The Principal contended that no accommodations were sought that were refused.

The Principal accepted that the Complainant struggled academically in fifth year, and he did not doubt that the Complainant also suffered emotionally.

The Principal confirmed that the Complainant’s behaviour was exemplary in fifth year. He had a talk with the Complainant and told him that because his behaviour was so good, he would let him repeat fifth year.

Regarding his conversation with the Ombudsman for Children, the Principal said that at no stage did he say that the Complainant did not get a place in TY due to the lack of spaces. The Principal said that he may have said that TY was up and running.

Cross-examination of the Principal by Ms Mulligan BL on behalf of the Complainant

The Principal confirmed that he understood that the Complainant’s diagnosis of ADHD was a significant factor in his behaviour.

The Principal confirmed that there would have been an awareness of the Complainant’s diagnosis at the Year Head meetings. However, a diagnosis does not entitle a student to behave as they wish.

The Principal said that the Respondent did provide reasonable accommodation by offering the Complainant a place in TY. The Principal also said that the Complainant was getting significant educational supports throughout that time.

The Principal said that applying the disciplinary process and putting the Complainant on report was a way of addressing the Complainant’s behaviour issues.

The Principal said that the Complainant got a conditional offer to help him to keep his place and he made sure that the Complainant was aware of the conditional nature of the offer.

Regarding the TY letter that was sent home with the students, the Principal said that he saw a screenshot of the Complainant’s letter and that it was clearly legible.

The Principal’s recollection of 8 May 2023 meeting with the Complainant’s parents was not that it was to address the Complainant’s behaviour but to secure him a place in TY. The Principal contended that the Complainant’s parents’ priority was to get a place in TY for their son if that was possible.

The Principal contended that he was not in a position to offer the Complainant a place in TY given the Complainant’s disciplinary issues and that he had to follow the school policy.

The law applied to the facts

The Complainant engaged in aggressive behaviour (pushing a female student) and other disruptive behaviour on seven occasions after receiving his conditional offer.

There are many students in TY who have a disability. The Complainant was not refused a place because he had a disability. His conditional offer was withdrawn on the basis of his disciplinary record.

It is the responsibility of the school to provide all students with a safe, secure and healthy environment. It was the considered view of the school that access to TY was not in the Complainant’s best interests. There was a belief that he needed a structured educational environment to ensure his continued progress. The school was of the view that the flexible nature of Transition Year was unsuitable for the Complainant and would be disruptive to the learning environment in addition perhaps to the learning of other students in the school.

The Respondent relies on the decision in A secondary school student v A secondary school ADJ-00023366. That case also concerned a student with ADHD who was denied a place in TY due to behavioural issues. In that case the school also believed that a structured educational environment was necessary for the claimant to ensure his continued progress at school. The respondent in the cited case submitted that section 7(4) of the Act provided a defence against alleged discrimination. It explained that the respondent’s school’s admissions policy provided that, for acceptance to the TY Program, the school must be of the opinion that a student is capable of benefiting from participation in the year and equally that their participation would not prevent any other student or students from benefiting from participation. It was submitted in that case that the claimant’s disruptive behaviour had been a serious cause of concern and accepting him onto the program would have a seriously detrimental impact on the other students participating in the program. The respondent also relied on section 4(4) of the Act as a defence to the claim. It was held that:

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

…

Therefore, I accept that section 4(4) and7(4)(b) apply to the circumstances of this case and the decision not to allow the claimant to participate in the Transition Year Programme was reasonably necessary for his own health and safety and those around him and the detrimental impact it would have on other students participating in the program.”

In all of the circumstances the Respondent relies on section 4(4) and section 7(4)(b) of the Act in defence of this claim and relies on the persuasive authority of the aforementioned WRC decision.

Conclusion

The Respondent submits that the Complainant has not made out a presumption of discrimination so that the burden of proof passes to the Respondent.

The Respondent notes that the Complainant has not nominated a comparator as is required under the Act.

While the Respondent does not dispute that the Complainant has a disability, it asserts that he was not denied a place in TY because of his disability but because of his disciplinary record. The Respondent asserts that just because a student has a disability, this does not mean that the Code of Behaviour does not apply.

Twelve students with disabilities were offered places in the 2023-2024 TY class, two of whom had ADHD. Four students were not offered a place in the 2023-2024 TY class due to their behaviour. The other student who received a conditional offer did not have a disability.

The Respondent relies on the defences provided in sections 4(4) and 7(4)(b) of the Act. In this regard, the Respondent asserts that this case is ‘on all fours’ with A secondary school student v A secondary school ADJ-00023366.

The Respondent asserts that the Complainant’s behavioural issues were being notified to his parents when they were informed that he was on detention or on report.

The Respondent contends that even if the Complainant just showed his parents a blurry screenshot of the letter offering him a place in TY, they would have seen that it was a lengthy letter. It is illogical that they did not seek a copy from the school.

The Respondent submits that the Complainant was treated the same as everyone else. The Respondent notes that the Complainant’s mother accepts that she read the TY policy and knew about conditionality.

The Respondent asserts that there was no clarity about reasonable accommodation and at no stage did the Complainant’s parents specify what additional accommodation he required. The Respondent submits that expert correspondence did not contain any specific statement outlining what reasonable accommodation would address and/or resolve the Complainant’s behavioural issues. The Respondent further asserts that no referral to an expert was requested. The Respondent notes the Complainant’s mother’s comments about collaboration and communication and suggests that communication was already in place. The Respondent submits that the Complainant was already in receipt of reasonable accommodation and no further reasonable accommodation was apparent.

The issues for determination in this complaint is whether the Respondent discriminated against the Complainant on the disability ground contrary to sections 3 and 4 of the Equal Status Act 2000, as amended (the “Act”), in relation to the provision of a service and whether the Respondent failed to provide the Complainant with reasonable accommodation for a disability.

Section 3(1) of the Act provides the following definition of discrimination on the disability ground:

“For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” …

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

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

Section 4(1) of the Act relates to the obligation on a service provider to put in place appropriate measures without which a disabled person would not be able to access the service:

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

According to the Irish Human Rights and Equality Commission (IHREC) in its guide to the Act, “discrimination on the ground of disability includes a refusal or failure by a service provider to do all that is reasonable to accommodate the needs of a disabled person by providing special treatment or facilities, if without such facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.

I note that the Respondent relies on the defences provided in sections 4(4) and 7(4)(b) of the Act. The obligation on a service provider to provide reasonable accommodation as per section 4(1) of the Act and the obligation not to discriminate on the disability ground as set out in section 3(1) is tempered by the exemptions provided for in sections 4(4) and 7(4).

Section 4(4) of the Act provides that where a respondent is concerned that a person with a disability may cause harm to themselves or others, then treating them differently is not discriminatory:

(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.”

Section 7(4)(b) of the Act provides that educational establishments are exempted from the requirement not to discriminate on the disability ground as set out in section 7(2) if in not discriminating, there would be a consequential negative impact on the education of other students:

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.

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Act. From the evidence adduced, it is clear to me that it is not in dispute between the parties that the Complainant has ADHD and dyslexia and is, therefore, a person with a disability within the meaning of sections 3(1) and 4(1) of the Act.

It is clear that the Complainant had behaviour issues in the junior cycle. It is also clear that the Complainant was receiving some assistance from the school in terms of educational support.

The Complainant applied for a place in TY in 2023. His parents were very supportive of his application as they believed that the non-academic focus of TY would be of great benefit to the Complainant and would afford him the opportunity to develop and mature. It would also give him the chance to explore his future career options and his choice of subjects at senior cycle.

Prior to the allocation of places in TY, the school interviewed several students where it had concerns about their suitability for the TY programme. The Complainant was one of the students who was interviewed.

The Complainant’s interview went well, and he was offered a conditional place in TY. The Complainant’s parents say that they were not aware of the conditional nature of the offer. As they understood, from communication with the school, the Complainant had been offered a place in TY and there was no cause for concern.

The Complainant’s mother said that she did not receive a copy of the Complainant's offer letter but that he sent her a blurry screenshot of it which she could not read. Despite repeatedly asking the Complainant for the letter, he did not give it to her. The Complainant’s mother felt that the school should have posted the letter of offer to the Complainant’s parents given that the Complainant’s ADHD impacted on his organisational abilities. The Complainant’s mother was distracted at the time due to her husband being injured while cycling and did not follow-up with the school.

The Principal disputes this version of events and says that the fostering of a sense of responsibility in students is a core component of TY and that the Complainant being tasked with bringing a letter home to his parents was appropriate in the circumstances. The Principal said that he saw a copy of the screenshot which the Complainant sent to his parents and that it was legible.

Reasonable accommodation

The Complainant’s mother does not believe that reasonable accommodation was provided to the Complainant in accordance with the Respondent’s obligations under section 4(1) of the Act to enable her son to avail of a place in TY. At the adjudication hearing, the Complainant’s mother explained that for her reasonable accommodation meant collaboration and communication so that all parties could work together to put in place strategies to address the Complainant’s behavioural issues. She gave examples of how this approach had worked very well for the Complainant and his parents at home. She also asserted that behavioural interventions as recommended by their medical expert (CAMHS) would have helped. The Complainant’s mother believes that if such measures had been put in place, her son would have been able to avail of his place in TY. The Complainant’s mother attested that the denial of a place in TY had a terrible impact on her son’s emotional wellbeing and academic attainment.

The Principal said that reasonable accommodation had been provided and that communication and collaboration took place. He recalled writing and posting a letter in April 2023 to the Complainant’s parents which they denied receiving. He also recalled a meeting with the Complainant’s parents which focused on their desire to achieve a place in TY for their son rather than on reasonable accommodation.

From reading the expert correspondence which the Complainant’s parents furnished to the school in support of their appeal, it is not apparent to me that any additional reasonable accommodations were recommended. The report from CAMHS (the Child and Adolescent Mental Health Service) states that the Complainant “will continue to benefit from appropriate intervention and management at school in line with his diagnosis”. In his correspondence, the CEO of ADHD Ireland wrote: “A child presenting with ADHD behavioural issues at school should have behavioural management interventions in line with their diagnosis. With [the Complainant’s] ADHD, behavioural issues should not be used as a reason to exclude him from education opportunities such as TY.”

At the adjudication hearing, the only additional measures which the Complainant’s mother mentioned were communication and collaboration. I am of the view that these were already in place in the form of the disciplinary reports and communications from the school to the Complainant’s parents. Furthermore, there was no suggestion at any stage that the accommodations already provided to the Complainant would not continue in TY had the Complainant been granted a place. This is a separate matter and is considered below.

Discrimination

The Principal attested that following the Complainant’s conditional offer of a place in TY, which was similar to being on report, his behaviour did not improve, and that there were a number of instances which represented a serious breach of the school’s Code of Behaviour. The matter was raised at consecutive Year Head meetings until, eventually, a decision was taken on the grounds of health and safety/danger to other students, that the Complainant’s conditional offer would be rescinded.

I note the Complainant’s mother’s assertion that the conditional offer to the Complainant of a place in TY was contrary to the Respondent’s Admission Policy for Entry into the Transition Year Programme (the “Policy”) which does not provide for a conditional offer. I note, however, that the Policy contains the following clause: “Any serious breach of the school’s Code of Behaviour prior to the commencement of Transition Year may result in the withdrawal of the offer of a place in Transition Year”. I also note the Principal’s evidence that he viewed all the Complainant’s breaches of the Code of Behaviour, which occurred after he received his conditional offer of a place in TY, as serious breaches of the code. The Principal contended that while “the intention of the Complainant may have been benign, the outcome of his actions was not”. I am of the view, therefore, that the making of a conditional offer of a place in TY to the Complainant was in line with the Policy.

I note that in her evidence, the Complainant’s mother said that “the Complainant’s intention was never to be bold. His behaviour cannot be separated from his diagnosis. His behaviour is symptomatic of his disability”. The Complainant’s mother also said that “he did not understand the link between his behaviour and the outcome … he does not recognise “cause and effect” which is a real struggle for people with ADHD as they cannot overcome their impulsivity”

The Complainant’s mother asserted that since the Complainant’s behaviour was inextricably linked to his disability, it should not be an impediment to him securing a place in TY. She suggested that her view was supported by the expert input she provided to the Respondent.

The expert opinion from CAMHS confirmed that behavioural issues and impulsiveness form part of the Complainant’s disability profile:

“ADHD is considered to be a neurodevelopmental condition which can significantly impact concentration and the ability to stay focused. Children with ADHD need a lot of movement and tend to struggle with sitting for any length of time which is especially challenging given the length of classes and the school day in general. They are also often extremely challenged by their tendency to act on impulse. [The Complainant] is certainly affected by all these traits resulting in poorly self-regulated behaviour. It affects his short-term memory, learning and ability to manage in class and like for many children with ADHD he tends not to learn from the consequences of his behaviour.”

The CEO of ADHD Ireland, in his letter supporting the Complainant’s parents’ appeal stated:

“Accepting that there has been some recent discipline slips, we believe that these are consistent with the traits of ADHD.”

The Complainant’s mother contended that it is the Respondent’s case that the Complainant was not refused a place in TY because of his disability, rather it was his disciplinary record that caused the refusal. The Complainant’s mother asserted that the Respondent has failed to recognise or have regard to the causative link between the Complainants’ disability and his behavioural issues.

The Respondent asserts that it did not discriminate against the Complainant as a person with a disability contrary to the provisions of the Act. In support of its assertion, the Respondent submitted that twelve students with a disability were offered unconditional places in TY in 2023. The Respondent further submitted that a student without a disability was offered a conditional place in TY on the same basis as the Complainant. That student’s conditional offer was also withdrawn due to behavioural issues.

The Respondent submits that the Complainant was treated the same as everyone else. I am of the view that the Complainant is not the same as everyone else. He is a person with a disability who, according to CAMHS and ADHD Ireland, exhibits behaviours which are inextricably linked to his disability. At the hearing, the Principal confirmed that he understood that the Complainant’s diagnosis of ADHD was a significant factor in his behaviour.

In her book Equal Status Acts 2000-2011, Judy Walsh, Head of Subject for Social Justice at the UCD School of Social Policy, Social Work and Social Justice, recognised at page 104 that a claim of direct discrimination could be sustained where a service provider failed to treat persons differently.

Based on the totality of the submissions and evidence which have been presented to me in the course of this hearing, I am of the view that the denial of a place in TY to the Complainant, ostensibly due to his behaviour, was in fact a denial of a place due to his disability given that the two issues cannot be separated.

Having carefully considered the written and oral submissions in relation to this aspect of the complaint, I find that the Complainant has established primary facts to support a claim of discrimination on the grounds of disability.

Section 38A of the Act sets out the burden of proof in equal status complaints:

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

As I have found that the Complainant has established a presumption of discrimination contrary to section 3(1) of the Act, the burden of proving that discrimination did not occur in relation to the Complainant now passes to the Respondent to prove that there was no infringement of the principle of equal treatment. 

I note that the Respondent relies on the defence provided in 7(4)(b) of the Act which effectively provides that an educational establishment will not be in breach of the non-discriminatory provisions of the Act insofar as they relate to disability if it can be shown that difference in treatment was due to the adverse impact compliance with section 3(1) of the Act would have on other students.

The Respondent offered the Complainant a place in TY which was conditional on his behaviour. During the period between the offer of a place and the decision to withdraw that offer, the Complainant breached the Respondent’s Code of Behaviour on five separate occasions. These breaches were considered at the weekly Year Head meetings which were attended by relevant members of the school management. After the fifth breach, the decision was made to withdraw the offer to the Complainant of a place in TY.

I note the Complainant’s mother’s assertion that none of these breaches was sufficiently serious to warrant the withdrawal of the Complainant’s offer of a place in TY. The Respondent does not concur with the assessment. It viewed the Complainant’s breaches as a having a detrimental impact on other students which warranted a decision to deny the Complainant a place in TY. I am of the view that the school was best placed to make the decision regarding the Complainant’s participation in TY. I find that the school’s decision was measured and appropriate. It took place over a period time; it was not taken in reaction to a single breach of the Code of Behaviour; and it was a collective decision of the school’s management team.

I note the findings of Laffoy J in Cahill -v- The Minister for Education and Science [2017] IESC 29 where at paragraph 73 it is stated:

As a matter of interpretation, I consider that s. 4(1) is clear and unambiguous. The standard of reasonableness which is at the heart of s. 4(1), as has already been noted, in my view, imports the concept of proportionality. It envisages that a balance is to be maintained between the needs of the disabled person and how those needs are met by the provision of special treatment or facilities to the extent necessary to enable the disabled person to avail of the service, or to do so, without undue difficulty, on the one hand, and the effect of such provision on the service provider in the overall context of the position of the service provider, as the provider of the service, on the other hand.

Having considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I am also of the view that that the school’s position is in line with the need for balance as espoused in the Cahill judgment. I find that the Respondent’s support of the school’s decision to deny the Complainant a place in TY was reasonable and necessary given the school’s conclusion as to the detrimental impact the Complainant’s participation would have on other students in TY.

I find, therefore, that the exemption provided in section 7(4)(b) of the Act apply to the circumstances of this complaint.

I recognise that the non-participation of the Complainant in the TY programme has been a source of great upset for him and his parents and that his experience in fifth year was very traumatic for him. I also recognise that the school was faced with a very difficult situation and tried to make the best decision it could in the circumstances.

I hope that both sides can move on from this experience and work together to ensure that the remainder of the Complainant’s school career is as positive as it can possibly be.

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint, I find that the Respondent did not discriminate against the Complainant on the grounds of disability contrary to section 3(1) of the Act.

I further find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 4(1) of the Act.

Accordingly, I find that this complaint is not well founded.

Disability ground – not well founded – exemptions under sections 4(4) and 7(4) of the Act