Complainant

Respondent

Parties

Cormac Flynn

Minister for Education and Skills

Representatives

Free Legal Advice Centres

Chief State Solicitor’s Office.

Act

Complaint Reference No.

Date of Receipt

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

CA-00041564-001

16/12/2020

At the opening of the hearing, Mr Kane said that the complainant is legally blind and has a mild reduction in hearing.  A normally sighted person can see 60 metres into the distance, but the complainant can see three metres ahead.  He cannot see regular sized text without assistance and he is unable to identify most colours.  When the hearing opened in April 2023, the complainant was a sixth year student and he sat his Leaving Certificate in June, before the hearing opened properly on October 25th 2023.  When he was at school, he availed of additional supports to help him to access education in the same manner as his classmates who are not visually impaired.

Two complaints have been submitted to me for investigation.

1.      A complaint that the closure of schools in March 2020 without putting in place provisions for blind students for support with their education, constitutes indirect discrimination.  Alternatively, Mr Kane submitted that the closure of the schools in the absence of support for blind students constitutes a failure to provide reasonable accommodation.

2.      A complaint regarding the exclusion of the complainant from the “Summer Provision Scheme.”  This is a scheme providing for the continuation of educational services for children with special needs during the summer holidays.  Summer provision was available for blind children attending primary school, but not for blind students in secondary school.  Mr Kane submitted that this constitutes direct discrimination.   

On October 20th 2020, on behalf of her son, Ms Walsh submitted an ES1 form to the Department of Education, setting out her claim that he was being discriminated against because of the failure to provide him with home-based tuition during the summer.  On behalf of the Department, Ms Maria Browne of the Chief State Solicitor’s Office replied in an ES2 on December 16th 2020.  Ms Browne stated that closure of the schools was in response to the Covid-19 pandemic and that the Minister put in place a range of supports and guidance for schools on how to provide for the continuing education of students during the lockdown.  Ms Browne said that the complainant was offered grant funding to cover the cost of tuition in line with the Summer Provision Scheme, but that he did not avail of this funding.

On behalf of the respondent, Mr Quinn argued that the WRC does not have jurisdiction to consider complaints which relate to Government decisions.  In a leading judgement followed over the past two decades, TD v Minister for Education[1], the Supreme Court held that decisions in relation to the distribution of resources are a matter for the legislature and the executive.  Mr Quinn submitted that the Courts have explicitly found that the WRC and its predecessor, the Equality Tribunal, has no jurisdiction to review Government decisions.

Mr Quinn referred to the decision of Ms Justice Leonie Reynolds in Pobal v Hoey[2], which, he said, shares many similarities with the instant complaint.  This decision concerned a scheme set up by the Government to provide financial support to taxi drivers who were disadvantaged as a result of the deregulation of the taxi industry in the early 2000s.  Mr Hoey was excluded from eligibility for support due to his age (he was under age 50).  Ms Justice Reynolds held that the Equality Tribunal did not have jurisdiction to review a decision of the Government:

“…the Tribunal had no jurisdiction to entertain the Defendant’s complaint as to do so was in effect to purport to review a decision of the Government, which, in my view, falls outside the scope of the powers conferred on it by the 2000 Act.”

Mr Quinn argued that the decision in Pobal v Hoey is explicit Court authority for the principle that the WRC has no jurisdiction in equality cases to review Government decisions.  He also submitted that this decision is authority for the proposition that the WRC should exercise caution when determining whether it has jurisdiction to review any decisions of the Executive that involve the allocation of public resources.  In support of this proposition, Mr Quinn referred to the decision of the Equality Tribunal in Brennan v Area Development Management Limited[3] which adopted the findings in Pobal v Hoey.

It is the respondent’s position that the policy decisions which are the subject of both the school closure complaint and the Summer Provision complaint were the subject of Government decisions.

In relation to the complaint about the school closure, the Government made a decision on March 12th 2020 to close all schools the following day.  On March 19th, the Government made a further decision in relation to the steps taken by the Department, to minimise the impact on teaching and learning and to ensure the continuation of education for students.  Between March 12th and July 27th 2020, a series of Government decisions were made in relation to school closures, school re-opening and in relation to the supports to be provided during the school closures, including supports for children with special needs.

In relation to the complaint about Summer Provision, on June 5th and 12th and on July 6th 2020, decisions were made to establish the Summer Provision Scheme and to establish the eligibility for the Scheme.  The cost in 2020 was €20.4m, with support provided to 24,000 children, up from a spend in 2019 on the “July Provision Scheme” of €15.7m based on 15,000 eligible children.  If the scheme was to be extended to all children with special educational needs, the Department estimates that the cost would be approximately €205m, or more than 10 times the cost in 2020.

The decision to expand the scheme and to include some categories of children and not others was based partly on funding; there was a limited amount of additional funding available for the expansion of the scheme and choices were made by the Department regarding the categories of children that would benefit most.  As in the cases of TDv the Minister for Education and Pobal v Hoey, Mr Quinn argued that this is the precise scenario that the judgements are intended to address; “quintessentially policy and political decisions made by the Minister and the Government relating to the allocation of finite resources are not reviewable by the WRC under the 2000 Act.”

Findings on the Preliminary Issue

I have considered the respondent’s assertion that the WRC has no jurisdiction to adjudicate on matters that relate to Government decisions.  While it was a decision of the Government to close schools at the onset of the Covid-19 pandemic, and for the remaining of the school year, the complainant is not arguing that that decision was wrong.  His case is that, having closed the schools, there was a failure to put in place adequate support for him to continue his education on an equal basis with students who have no disability.

The judgement of the Supreme court of December 2001 in TD v Minister for Education (footnote 7) which was referred to by Mr Quinn, concerns an issue of policy regarding facilities for children with special needs.  TD, suing through his mother, had been granted a mandatory injunction by the High Court directing the Minister for Education, Ireland, the Attorney General, the Eastern Health Board and the Minister for Health and Children to implement a policy to provide him and other children with accommodation and treatment in high support units.  On appeal by the respondents, the Supreme Court held that the High Court “had no function in making assessments on the validity of competing claims on national resources.”

The complainant argues that, having concluded that it was necessary to close schools, and, having put in place the necessary resources to support teaching and learning at home, the Department failed to ensure that he received the support that he required.  In relation to his first complaint about support during the school closure, this is not about a lack of resources, but about the failure to ensure that resources that could have been useful to him were provided to him.  I learned at the hearing that €100m in ICT infrastructure grant funding was issued to schools to address technology needs during 2020, which included €10m earmarked for the purchase of technology and devices for disadvantaged students.  The second complaint, concerning access to the Summer Provision Scheme, was framed by the Department as a resource issue.  I do not accept this interpretation.  In her evidence, Ms Martina Mannion, assistant secretary general with responsibility for special education, said that funding for the Summer Provision Scheme was increased from €15 million in 2019 to €20.4 million in 2020.  She said that the programme has expanded since 2020 and, in 2023, the cost was €40 million.  It is interesting to note also that, when the complainant’s mother, Ms Walsh, complained that her son was being discriminated against, the Department offered to provide funding for 40 hours’ out of school tuition.  Clearly therefore, the issue of concern is not the availability of resources, as in TD, but the way in which the available resources were distributed.

Mr Quinn also referred to the decision in April 2011 of Ms Justice Leonie Reynolds in the Circuit Court, in Pobal v Hoey (footnote 8).  Mr Hoey, a taxi driver who was under age 50, was ineligible for a hardship payment for taxi drivers, arising from the deregulation of that industry.  The payment applied to drivers who were over 50.  Ms Justice Reynolds upheld the appeal, stating the Pobal was,

“…doing no more than administering the scheme in accordance with the criteria established by the Executive.  To do otherwise would have been ultra vires its powers and unlawful.”

In the context of the Covid-19 pandemic and the Department’s efforts to support teaching and learning at home, there was some discretion regarding how funding allocated by the Government could be used.  It was apparent from the evidence of the respondent’s witnesses that there was scope to expand the Summer Provision Scheme in 2020, and that it was in fact expanded to include children in DEIS post-primary schools.  Funding was allocated by the Government to the Department to expand the Summer Provision Scheme and the decision regarding the categories of children to be included rested with the Department.  I cannot see how anyone, in Government or elsewhere, would have objected to the inclusion of the complainant in the Summer Provision Scheme in 2020.  Unlike the expansion of the age criterion in Pobal v Hoey, I do not accept that such a decision would have been unlawful.   

In conclusion, I find that the first complaint under consideration here relates to how resources that were available were not provided to the complainant.  I find that the second complaint is about how the Department decided not to permit the complainant to avail of a scheme for which funding was available.  I am satisfied that the issues to be considered to not fall within the parameter of a decision of Government and that I have jurisdiction to proceed with my investigation.

Complaint 1, Closure of the Schools:  Relevant Facts

On March 12th 2020, when the Government instructed schools to close at the onset of the Covid-19 pandemic, the complainant was in his junior certificate year.  He could not access his normal educational supports for the remainder of the academic year and he did not return to school until September.  Between March and June 2020, the complainant was taught at home by his mother, without access to the supports normally provided for at school, which were described in the complainant’s submission as follows:

§  Access to a special needs assistant who helps him with enlarging text, who takes extra notes that he misses and draws diagrams. 

§  One to one maths tuition to help him to catch up on concepts missed out on during the week.

§  One to one support from a resource teacher to help the complainant with French, music and science.

§  The school uploaded material on Microsoft Teams for the complainant to access at home.   He has difficulty using MS Teams because of the pastel colours used in the programme. 

§  MS Teams hasn’t got a “pinching” tool which is available on the complainant’s school computer.  He was required to use a “magnification” tool in MS Teams which is unsuitable for answering questions.

§  The amount of text that the complainant was required to access on MS Teams took too long and the complainant suffered from eye fatigue.

§  When teachers used a YouTube channel for class material, the screen couldn’t be enlarged and the complainant had to rely on listening only.  He could not see the teacher as they were working through mathematical problems.

§  He had no access to a printer to print A3-sized materials so that he could read the content.

The decision to close schools without arrangements to continue supporting children with special educational needs (SEN) impacted disproportionately on the complainant because he was unable to access his school’s services on an equal footing with students who do not have a disability.  This was the conclusion reached by Ms Caroline Lane, an educator in what was then known as the National Council of the Blind in Ireland (now Vision Ireland).  In her report of January 6th 2022 on the impact of school closures on the complainant’s education, Ms Lane stated that “…Cormac’s education provision was more significantly impacted upon than his sighted peers.”

Complaint 1:  Legal Principles

Mr Kane referred to s.3(1)(c) of the Equal Status Act (“the Act”) which provides that,

(1) For the purposes of this Act discrimination shall be taken to occur -

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Mr Kane said that the complainant accepts that the decision to close schools was “an apparently neutral provision.”

The persons referred to at s.3(2) include, at subsection (g),

(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”)[.]

Mr Kane submitted that there was no objective justification or legitimate aim in closing schools without making reasonable accommodation for the educational needs of students with disabilities.  He argued that, moreover, the complainant was also discriminated against when the Department failed to make reasonable accommodation for his disability, as set out in s.4(1) of the Act. 

(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.

Mr Kane submitted that the Department of Education, while not an “educational establishment,” within the meaning of s.7 of the Act, is a “service provider,” within the meaning of s.4.  In this regard, Mr Kane referred to the decision of the Equality Tribunal in the case of Ms X (on behalf of her son) v Minister for Education[4], where the equality officer held that,

“…the type of services which (the Department of Education) provides in the educational sphere (in accordance with its obligations under the Education Act) do constitute a service within the meaning of the Equal Status Acts … I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.”

Mr Kane referred also to the decision of the equality officer in Lyamina v DES[5], Ms C v Minister for Education[6] and Ms Kn (on behalf of her son Mr Kn) v Minister for Education[7] where he said that similar rulings were reached.  Based on these precedents, Mr Kane argued that the provision of educational supports to the complainant are services “within the educational sphere” and are provided in accordance with the Department’s obligations under the Education Act and under the Constitution.

Mr Kane referred to the functions of the Minister under the Education Act 1998 to make available to each resident in the State, including a person with a disability, support services and a level and quality of education appropriate to their needs and to provide funding and support services to students, including students who have a disability, “as the Minister considers appropriate and in accordance with this Act.”

Mr Kane referred to the decision of Mr Justice MacMenamin in Cahill v Minister for Education and Science[8], where the judge found that s.4 of the Act can provide an alternative cause of discrimination compared to that in s.3:

“Section 4(1) identifies one particular form of discrimination.  In my view, a finding of ‘no discrimination’ on grounds of disability under s.3(2)(g) will not, therefore, always or inevitably lead to a determination of ‘no discrimination’ under s.4(1). This is because s.4(1) not only contains a ‘substantive’ aspect, overlapping at times with s.3(2)(g), but also has a ‘procedural’ dimension, that is one based on the question whether a respondent did ‘all that is reasonable’ procedurally, as well as in substance.  The duty addressed under s.4 differs from that under s.3, in that s.4 deals with obligations to adjust rules or standards, or policies, to meet the specific needs of people who are covered by a protected ground: in this case, disability.”

Mr Justice MacMenamin further discussed the meaning of s.4, noting that it significantly tilted the balance in favour of the person with a disability:

“The words ‘all’ and ‘everything’ are, I believe, synonymous terms in this respect.  What is in question here is not a simple common law ‘duty of care’, ‘balancing’ exercise, as to what is reasonable, but rather one where the balance is significantly tilted in order, where necessary, to impose positive obligations to ensure that all practicable steps are taken.  This is different from refraining or abstaining from doing something.  The legislative object therein should be seen as to do everything that is reasonable and practicable, both procedurally, and in substance, to ensure the treatment of a person with a disability is placed at the same level as a person without a disability.  The obligation is not, therefore, simply to refrain from certain actions, but, where necessary, to engage in positive action.  In colloquial terms, it can impose a duty to ‘go the extra mile’.”

In summary therefore, the first complaint is that the Minister acted contrary to ss.3 and or 4 of the Act by closing schools without sufficient support in place for the continuation of education for children with a disability.  In the ES2 response to the complainant, the Minister relies on various policies and guidelines developed to manage the closure of schools during Covid-19.  However, Mr Kane argued that this does not meet the legal duty of the Minister to ensure that her decisions do not result in discrimination.  The complainant’s supports were not available to him between the middle of March and the end of August 2020.  The Minister decided to close the schools without ensuring that the educational needs of the complainant were provided for.

The complainant rejects the suggestion in the ES2 form that the responsibility for providing the support to the complainant rests with the individual school:

“While the Minister provided guidance and support for schools in relation to the provision of continuity of education… the responsibility for the delivery of that education rested with individual schools.”

Mr Kane submitted that writing policies and guidelines is not sufficient if the students in question do not get the required supports.  Section 7 of the Education Act requires the Minister, among other duties, to ensure appropriate supports for students with special education needs and to coordinate the provision of those services.  Mr Kane asserted that the school cannot be held responsible for the complaints which are being investigated here.

Complaint 2, the Summer Provision Scheme:  Relevant Facts

In June 2020, the terms of the Summer Provision Scheme 2020 were announced.  The Scheme was made available to students with various disabilities, one of which was blind and visually impaired children in primary school.  The complainant was in secondary school and he didn’t meet this criterion.  Around June 16th 2020, the complainant’s mother, Ms Walsh, applied for Summer Provision and on June 25th, she was notified that her son wasn’t eligible.  It is the complainant’s case that the failure of the Minister to admit him into the scheme, from which he would have undoubtedly benefited, on the basis that he did not have one of the stipulated disabilities, is discriminatory.  He also claims that the Minister’s failure to exercise discretion to admit him is also discriminatory.  The Minister’s policy includes blind and visually impaired children who are in primary school and Mr Kane submitted that there is no evidence to suggest that the additional needs of blind students are less when they enter secondary school.

In its response to Ms Walsh’s complaint set out in the ES2, the Department asserted that the complainant did not accept the offer of 40 hours tuition.  On March 25th 2021, the complainant’s solicitor wrote to the Department as follows:

“Our client welcomes any offer to increase and improve Cormac’s access to education.  However, our client respectfully intends to continue with the within complaints in the following circumstance:

Your clients discriminated against Cormac through closing schools in March 2020 while failing to ensure that Cormac had proper access to his educational supports and further failing to put in place arrangements to ensure the continuity of education of persons with a disability, such as Cormac.  Additionally, your clients discriminated against Cormac in refusing to admit Cormac into the Summer Provision scheme owing to his disability.  The discrimination complained of resulted in Cormac losing out on far more than 40 hours’ tuition.  It is estimated that Cormac lost out on approx. 80 hours of tuition and we are calling on your client to make up that shortfall.  Furthermore, we respectfully require your client to admit that Cormac was subjected to discrimination in the manner set out above.  Moreover, we respectfully require your client to undertake to remove any present and future blanket ban on, or impediment to, post primary blind or visually impaired children accessing Summer Provision, as these policies are unlawful.

Your offer to fund 40 hours’ tuition appears to be made without conditions.  Our client will of course accept an offer to fund 40 hours’ tuition for the benefit of her son Cormac.

For the purpose of clarity, you will note the issues remaining in the present case and her intention to continue with the complaint.”

Mr Kane submitted that the complainant lost out on 80 hours of tuition and not 40 hours.  In relation to the 40 hours of tuition offered to him, this was not made with an admission that discrimination had occurred.  His exclusion from the Scheme was discriminatory and the Department has not acknowledged this.  The offer of 40 hours of tuition was made during term time and Ms Walsh was unable to find a teacher who was available because they were all working.  Also, the complainant himself hadn’t got time to take off during the school term because he was at school for most of the week.  The Summer Provision is offered during summertime because that is the time that students are free to take up the extra tuition.

Complaint 2:  Legal Principles

In the summer of 2020, as a blind student in secondary school, the complainant was excluded from the Summer Provision Scheme on the basis that he was a second level student and not a primary school student.  The complainant alleges that he was subjected to direct discrimination based on his disability.  Mr Kane referred to s.3(1)(a) of the Act which provides that discrimination occurs,

(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[.]

The grounds in subsection (2) include, at subsection (g),

(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 5(1) of the Act provides that,

(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Mr Kane submitted that the complainant was treated less favourably than children with other disabilities.  At page 13 of her report on the impact of not having educational support during the summer, Ms Caroline Lane stated that,

“Summer provision is capable of alleviating issues of regression occurring or evenly spreading the additional burden of learning for children with vision impairment.”

The administration of grants is a “service,” within the meaning of the Act.  In that regard, Mr Kane referred to the analogous case of G v the Department of Social Protection[9], which is a High Court case concerning a challenge to that Department’s refusal to pay statutory and non-statutory maternity benefits.  Although the applicant in that case was unsuccessful, the Court was satisfied that the administration of the statutory and non-statutory schemes were “services” within the meaning of the Act.  Mr Kane asked me to have regard to the following passage at page 196 of that decision:

“The respondent says that it is the operator of the statutory code of benefits and allowances. I consider this definition to be too restrictive, since it takes no account of the fact that the respondent also administers a large number of non-statutory payment schemes.  There is insufficient material before the court to determine the legal basis for each of these schemes, but such case law as there is makes it clear that they must be administered according to generally applicable principles of public law.  In my view they would have to be regarded as services to the public within the meaning of the Act of 2000.

However, the proposition that the service in issue in this case is the making of payments to the mothers of newly-born or newly-adopted children is also too restrictive, since it leaves the statutory context for those payments out of account.

I consider that the service provided by the respondent is the administration or operation of the statutory code and of other non-statutory payment schemes.”

The Court held that the main difference in relation to a non-statutory scheme is that it may be open to challenge if the prohibitions on discrimination in the Act were contravened.  Mr Kane pointed out that the Summer Provision Scheme is a non-statutory scheme and that two consequences arise from this:  Firstly, there is no requirement in law for the Department to exclude the complainant from the Scheme and it was entirely free to admit him.  They applied the policy without any requirement in law to curtail the availability of the Scheme in the way they did.

Secondly, as the Scheme is a non-statutory scheme it must be administered in accordance with the Equal Status Act.  The decision in the G case is that the High Court would not condemn the administration of the statutory grant scheme, the logic being that it would not be possible for the Court to give priority to the provisions of the Equal Status Act over and above the provisions of the law governing the administration of a statutory scheme.  The present case concerns an entirely discretionary and non-statutory scheme, which must be administered in accordance with the provisions of the Equal Status Act.

Burden of Proof

The complainant argues that he is entitled to the benefit of s.38A of the Act which provides that, where facts are established by a person from which it may be presumed that discrimination has occurred, it is for the respondent to prove the contrary.

Defence of the Minister for Education and Skills

In response to the two complaints submitted by the complainant, Mr Quinn provided the following defence:

The policy decisions that led to these complaints were made by a series of Government decisions on how to allocate finite public resources based on competing demands.  Based on the judgement in Pobal v Hoey (footnote 8) (applied by the Equality Tribunal in, for example Brennan v Area Management Committee), Mr Quinn argued that these decisions are not reviewable by the WRC under the Equal Status Act.

Secondly, Mr Quinn argued that the services to which the complaints relate, the deployment of special needs assistants, the Summer Provision, the use of technology and printers, are services provided by the school.  Accordingly, this complaint is not correctly brought against the Minister.

Thirdly, in relation to the school closures complaint, this is a complaint about the failure to provide supports and not the closure of the school.  Mr Quinn submitted that the Minister had no role in the matters complained of.  The provision of special needs assistants (SNAs) remained the same during the 2020 school closures as it was previously.  The Minister provided guidance and additional supports to schools for the continuing of education, particularly for children with SEN, including on the issue of technology.

Fourthly, the Minister’s actions in relation to the 2020 school closures were objectively justified by a legitimate aim, which was to protect public health during the pandemic.  The means of achieving that aim were appropriate and necessary.  Accordingly, the Minister’s actions were permitted under the Act.

Finally, in relation to the complaint about Summer Provision, the expansion of this scheme in the summer of 2020 to include some additional categories of children with SEN and not other categories was a positive measure permitted by s.14(1)(b) of the Act.  These were preferential measures aimed at promoting equality of opportunity for, among others, primary school children with specific categories of educational needs, bearing in mind that such categories of school children are disadvantaged and likely to have difficulties availing of the same opportunities as children without SEN.  In addition, the measures were aimed at catering for the special needs of primary children with SEN who, because of these needs, may require services not required by children without such needs.  Accordingly, the expansion of the scheme in 2020 was permitted in the Equal Status Act. 

Background to the 2020 School Closures

On March 13th 2020, as one of the many measures taken to contain the spread of Covid-19, the Government decided to close schools.  When they were closed, schools provided continuing education for children in their homes.  While the Minister provided extensive guidance and support (up to a spending package of €400m in 2020), the responsibility for the delivery of education rested with the individual schools.

In the book of documents provided by the respondent in preparation for this hearing, Mr Quinn included a letter from the Minister for Education to schools dated March 25th 2020 and guidance from the Department in April 2020.  Support material was also provided to schools on how to support continuing education for children with SEN.  The guidance noted that there was a particular need for students with SEN to have regular, ongoing schooling.  Resources were identified for parents and measures to ensure that the needs of pupils with SEN were catered for were provided in the guidance documents.

The guidance noted the role of the special education teacher, who understands their pupil’s learning needs, to work with parents to choose appropriate supports for learning in a remote setting.  Special education teachers were asked to examine how progress on the existing learning targets in students’ support plans could be extended by home learning.  They were asked to communicate with parents to establish the methods that would work best to achieve continuity of learning for students.

Visiting teachers for blind and visually impaired children continued to keep in contact with schools and parents by telephone and email during the school closures.  The National Council for Special Education (NCSE) provided online resources for parents and teachers to support home learning for children with special needs during the Covid-19 restrictions.  Supports included those related to general learning and difficulties for students with SEN, curriculum support, speech, language and communication, occupational therapy, guidance around behaviour and resources for teachers of children with a sensory impairment.

Mr Quinn referred to the support provided by the National Educational Psychological Service and the provision of guidance counselling.  Guidance was available for parents of children in primary schools, to support them in a home-schooling environment.  Infrastructure funding of €100m was provided to schools to address their information, communication and technology (ICT) needs.  This funding was to support the continuity of teaching and learning during the school closures.  This grant funding was issued directly to schools, as they were best-placed to identify the needs of their students and to meet their requirements.  The purpose of the funding was to address technology needs and to ensure the provision of an essential learning platform, devices, and other technology solutions to support remote learning.  Schools were advised that the funding could be used to purchase digital devices, including laptops and could be provided to students and teachers who did not have access to devices.

Included in the overall grant was a special payment of €10m to support the purchase of technology and devices for disadvantaged students, including students with SEN, during the school closures.  Details of this scheme were set out in a press release dated April 22nd 2020, which was included in the respondent’s book of documents.

Background to the Summer Provision Scheme

Mr Quinn set out the background to the July Provision Scheme which was introduced in 1997, in response to the judgement of the High Court in O’Donoghue v Minister for Health and Others[10].  The provision of an additional month of schooling for children with severe and profound learning difficulties was extended in 2000, to include children with autism in special schools and in special classes.  The scheme has been extended over the years to include home-based tuition for children with autism and children with Down Syndrome.

On June 5th 2020, the Government decided that schools could re-open in line with the lifting of general restrictions.  This facilitated the running of programmes in July, but with capacity also for August, including a programme for children with complex needs.  Information on the programme was published on the website of the Department of Education.  This was a schools-based programme based on the voluntary participation of schools, running for a minimum of two weeks and a maximum of four weeks during July and August.  A home-based summer programme was also provided for children whose school was not running a programme or which couldn’t accommodate an eligible student.  For these students, the department provided funding for the employment of a tutor by a parent or guardian for up to 10 hours each week for up to four weeks during the summer.

Primary school children who are blind or who have a severe visual impairment were included in the categories of children eligible to participate in the Summer Provision scheme for 2020.  Included in the respondent’s submission was an information note and a frequently asked questions document published on the Department’s website in June 2020.

On June 17th 2020, the complainant’s mother, Ms Walsh, registered him to participate in the Home-based Summer Programme.  When she received confirmation that secondary school children who are blind were not included in the Programme, Ms Walsh submitted a complaint to the Department, using an ES1 form.  An official from the Department contacted Ms Walsh and offered her grant funding to employ a tutor for her son for 40 hours.  Although the 2021 school year had commenced, the Department’s position is that the complainant could have taken up the funding at that time.

For the summer of 2021, the Summer Provision Scheme was revised to provide tuition for all students in special schools and in special classes in primary and post-primary schools and students presenting with “the most significant needs in mainstream classes in primary or post primary schools who are accessing the highest level of the Continuum of Support.  This includes students with enduring needs which significantly affect their capacity to learn, to function independently and to participate in education.”  

In effect, from 2021, the Summer Provision Scheme changed from one in which eligibility was based on specific categories of educational need to one which was based on need.

The School Closure Complaint

This is a complaint of indirect discrimination contrary to s.3(1)(c) of the Act, concerning the decision to close schools without sufficient support for the complainant’s educational needs.  Included under this heading is a complaint about the failure of the Department to provide reasonable accommodation to the complainant, contrary to s.4 of the Act.

The Minister is not the Provider of the Service and the Complaint is against the Wrong Respondent

The complainant alleges that the Minister is in contravention of s.5 of the Act, which, at subsection (1) provides that,

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Mr Quinn referred to the definition of “service” at s.2 which is stated to mean:

…a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes -

(a) access to and the use of any place,

(b) facilities for

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service[.]

Mr Quinn submitted that the legal precedents relied on by the complainant, Ms X, Lyamina and Ms Kn (footnotes 4, 5 and 7 respectively), deal with a different question which does not arise in the instant case.  The question that arises for the complainant is not whether the Minister is a provider of services in general, but whether the Minister was the provider of the services which are the subject of the school closure complaint.  The respondent’s position is that, taking the complainant’s case at its height, the supports that are the subject of the school closures complaint were to be provided by the school and not by the Minister.  These complaints all relate to the specifics of the supports provided by the school:

§  Access of the complainant to his special needs assistant;

§  Access to additional maths, French and music tuition;

§  Software to assist the complainant to use specific computer applications;

§  Access to an A3 printer.

In accordance with s.7 of the Education Act 1998, Mr Quinn submitted that the Minister does not provide education, but provides for education.  Her role is to provide funding and policy direction to enable schools to provide education.  In support of this proposition, Mr Quinn referred to the judgement of the Supreme Court in 1979 in Crowley v Ireland[11] where it was held that the State, the Minister for Education and the Attorney General did not fail to discharge their duty to provide free education to six children in Drimoleague, County Cork from March 1976 until December 1977, when there was a dispute between members of the Irish National Teachers’ Organisation and a local priest.  In relation to the instant case, Mr Quinn submitted that,

§  SNA provision to the complainant’s school remained the same during the closure of the school in 2020 as it was before;

§  Provision of special education teachers to the complainant’s school, to provide extra tuition to pupils with SEN, was the same during the school closure in 2020 as before;

§  The Minister provided additional supports to schools to facilitate the provision of remote teaching and learning during the pandemic, including in relation to children with SEN.  No complaint has been made about the nature of these additional supports provided by the Minister.  

The complainant’s issue is that the school failed to provide him with access to his SNA or to the additional tuition to which he had access before schools closed in March 2020.  This was a matter within the control of the school and was not a decision of the Minister.  The complainant also complains that, during the school closure in 2020, the school taught classes using Microsoft Teams and YouTube which were not appropriate to his disability.  Again, this was a matter that was within the control of the school and was not decided by the Minister.  The same applies to access to an A3 printer.  In addition, the guidance provided by the Minister indicated that the role of the special education teacher included choosing appropriate methods and technology for the remote learning environment.

In one of the precedents relied upon by the complainant, Lyamina (footnote 5), the Equality Tribunal held that the Minister for Education is a provider of services in general terms, but not the provider of English tuition which was withdrawn when two schools were amalgamated.  The Equality Officer held that the complaint should have been brought against the school and not the Minister.  The respondent submits that this decision applies directly to the facts of the school closure complaint, which, as in Lyamina, relates to the tuition received by the complainant.  Mr Quinn submitted that the following crucial finding in Lyamina can be applied directly to the instant case:

“Based on the foregoing, I find that the Department of Education and Science had no role to play in deciding how tuition was to be provided in the new school and, accordingly, I consider that it did not discriminate, either directly or indirectly, against the complainant.”

Mr Quinn submitted that, under this heading of the school closure complaint, the question properly before me, as the adjudicator in this matter, is whether the Minister discriminated against the complainant, either under s.3(1)(c) or s.4 of the Act because of the closure of schools and the provision of a package of supports in 2020.  He argued that I have no jurisdiction to consider whether the Minister complied with her responsibilities under s.7 of the Education Act 1998.  It is the Minister’s case that she complied with these obligations.

It is the Department’s case that the complainant has failed to identify any action on the Minister’s part that put the complainant at a disadvantage compared to a student without a visual impairment.  For this reason, Mr Quinn argued that the complainant has failed to discharge the burden of proof at s.38A of the Act.

Actions Objectively Justified by a Legitimate Aim

Mr Quinn referred to s.3(1)(c) of the Act which provides that indirect discrimination does not occur if the measure complained of “is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”  The Minister denies that the decision to close schools in the face of the Covid-19 pandemic and to put in place a comprehensive package of supports put the complainant at a disadvantage compared to a student without a visual impairment.  Mr Quinn argued that the Minister’s conduct was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate and necessary. 

Firstly, the Minister’s decision to close schools because of Covid-19 was clearly objectively justified by the legitimate aim of protecting public health and the means of achieving that aim were appropriate and necessary.  The complainant has not argued otherwise.

Secondly, the Minister submits that the decision to close the schools and to put in place a package of supports was clearly objectively justified by the legitimate aim and the means of achieving that aim were appropriate and necessary.  In short, it is not clear what extra the Minister could have done to avoid a disadvantage to the complainant and the respondent denies that he was disadvantaged.  As outlined in Buckley v National University of Ireland Maynooth,[12] a provision will be “necessary” where there are no alternative, less discriminatory ways of advancing the respondent’s aim.

Mr Quinn submitted that it is relevant that the complainant has failed to point to any element of the package of supports put in place by the Minister which he claims breaches s.3(1)(c), but rather, pointed to alleged failings in the supports provided to him by the school.

Reasonable Accommodation

Mr Quinn submitted that the complainant has not identified what specific reasonable accommodation should have been provided by the Minister which was not provided.  He submitted that “this alone is fatal” for his complaint of failure to provide reasonable accommodation.

Section 4 of the Act provides that the obligation to provide reasonable accommodation only applies to the “provider of a service.”  As has been previously outlined, the Minister was not the provider of the services complained of in this case and, for this reason, this complaint falls away.

To rely on s.4, the complainant must demonstrate that, without the special treatment argued for, it is “unduly difficult or impossible” for him to use the education system.  Mr Quinn submitted that the complainant has not discharged the onus of proof in this respect.  The Minister relies on the objective standard and the balancing exercise mandated by the Supreme Court in Cahill v Minister for Education and Science (footnote 5).  In accordance with this test, the Minister did all that was objectively reasonable to support students with special educational needs during the 2020 school closures, while protecting public health during the Covid-19 pandemic. 

Section 4(3) of the Act provides that failure to provide reasonable accommodation does not constitute discrimination if it is justified by another provision of the Act.  As Mr Quinn has submitted, the decision to close schools together with a package of supports for children with special educational needs was objectively justified and the means of achieving that aim was appropriate and necessary.

The Summer Provision Complaint

This is a complaint regarding the exclusion of secondary school students with a visual impairment from being eligible for the Summer Provision Scheme.  It is the complainant’s case that, by being excluded from the Scheme, he was directly discriminated against.

Section 14(1)(b) of the Act provides as follows:

(1) Nothing in this Act shall be construed as prohibiting -

(Subsection (a) is not relevant to this complaint.)

(b) preferential treatment or the taking of positive measures which are bona fide intended to -

(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs[.]

The effect of this subsection is that preferential treatment that comes within the terms of subsection (i) or (ii) does not constitute discrimination.  Mr Quinn submitted that the terms of this section are reasonably straightforward and the crucial factors for this case are as follows:

Firstly, that the test for whether a particular form of preferential treatment qualifies as not being prohibited discrimination is whether that treatment is bona fide intended to do the things outlined in subsection (i) or (ii).  That is to say, whether the goals of promoting equal opportunity or catering for special needs are actually achieved.  The test is not whether there is a better way of supporting the relevant groups, but whether there is a bona fide intention of achieving these goals.  This was made clear by the Equality Tribunal at paragraph 29 of its decision in McCall v Area Development Management Limited[13]:

“The test contained in section 14, paragraph (b)(ii), requires that there be a bona fide intention to cater for the special needs of a category of person who, because of their circumstances, may require assistance not required by persons who do not have those special needs.  This test does not require me to decide whether the provisions for persons with a disability in the Scheme were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category, merely that there was a bona fide intention to cater for the special needs of a category of persons who may require this assistance.”

Similarly, in Hoey (footnote 8), it was held that,

“It covers treatment which is bona fide intended for a particular purpose and, once it is intended, it is not for the equality officer to assess whether or not the treatment is reasonable.  Even if it is not reasonable, the exemption still applies.”

Secondly, Mr Quinn referred to the decision of the Equality Tribunal in Mrs X (on behalf of her daughter, Ms Y) v the Minister for Social and Family Affairs[14], which considered the entitlement of people with disabilities under the free travel scheme (FTS).  Mr Quinn quoted from paragraph 6.4 of that decision:

“I am of the view that the FTS is a positive action measure which is designed to alleviate the cost of public transportation to old age pensioners and persons with disabilities by allowing them to travel free of charge on public transport.  I am satisfied that provision is made for the taking of such positive measures within section 14(1)(b) of the Equal Status Acts and that such action does not constitute discrimination.”

Thirdly, Mr Quinn submitted that, in its decision in Ennis v GAA (Leinster Council)[15], the WRC has held that, in a disability context, favourable treatment of one group of disabled people as compared to another group of disabled people is permitted as a positive action under s.14(1)(b).  Mr Ennis, a person with a disability, complained to the GAA that he was discriminated against because, unlike wheelchair users, who were admitted free to matches, the Leinster Council of the GAA required him to pay for a ticket.

As a fourth point under this heading, Mr Quinn submitted that the responsibility is on the complainant to show that s.14(1)(b) does not apply to his situation.  This was made clear in the decision in Mrs X, where the Equality Officer stated,

“I am satisfied that provision is made for the taking of such positive measures within section 14(1)(b) of the Equal Status Acts and that such action does not constitute discrimination.”

Positive Measure – Application to the Complainant’s Case

On a plain meaning of the legislation, Mr Quinn argued that the qualifying conditions for the Summer Provision Scheme come within s.14(1)(b)(i) and (ii) and, as such, do not constitute prohibited discrimination.                   

The respondent’s evidence will show that the July Provision Scheme was established in response to the findings in superior Courts’ judgements and policy reports to the effect that children with severe and profound learning difficulties would benefit from one month of extra schooling.  The July Provision Scheme was specifically established and subsequently expanded as a positive measure for children with severe and profound learning difficulties and autism.  Arising from a review of the scheme, it has evolved so that it is now based on need rather than specific categories of disabilities. 

In the context of the school closures during the pandemic, the Minister decided to expand the categories of students who were eligible for the Summer Provision Scheme.  The number of children who were eligible increased from around 13,000 to 23,000 and expenditure on the scheme increased from €15.7m to approximately €20.4m.  The expansion of the scheme included significant numbers of post-primary pupils, for example, children in special classes or special post-primary schools and children with Down Syndrome in post-primary schools.  The objective of this expansion was to benefit more children in post-primary schools, initially for a smaller cohort and to take account of additional funding.

Mr Quinn pointed to the specific application of s.14(1)(b)(i) and (ii) to this positive measure:

(i)               Children with special educational needs in the categories included in the expanded Summer Provision Scheme are disadvantaged compared to other people in a number of ways.  Providing them with an extra month of schooling every year is necessary to promote equality of opportunity for them by preventing their educational and social progress from regressing during the summer months.

(ii)              Children with special educational needs in the categories included in the expanded Summer Provision Scheme have special needs and, because of their circumstances, they need facilities and assistance not required by other people; that is, they require an extra month of schooling each year to prevent their educational and social progress from regressing during the summer months.

Mr Quinn submitted that I, as the adjudicator in this matter, do not have to be satisfied that the expanded scheme actually achieves the policy objectives, but, I must be satisfied that the scheme is bona fide intended to achieve those policy objectives.  He asserted that, given the background to the expanded scheme, there can be no doubt that the bona fide intention is present, that s.14(1)(b) applies and that no prohibited discrimination has occurred.  In Ennis, it has been held that preferential treatment of one group of persons with a disability over another group with a disability qualifies under s.14(1)(b).

Mr Quinn submitted that the Department’s case is stronger than that Ennis, because, in that case, the Leinster Council of the GAA could not point to other measures it was taking to support people with disabilities who did not qualify for the free admission policy.  He described it as “a crude policy” by which wheelchair users were admitted free to matches and people with other disabilities had to pay full price.  Notwithstanding this, the Equality Officer decided that s.14(1)(b) applied.  Given that the respondent in this case provides a range of other supports, including resource teachers, special needs assistants, behavioural support, speech and language support and special classes tailored to meet the needs of students with different educational needs, Mr Quinn submitted that there should be no doubt that s.14(1)(b) applies in this case.

Concluding his written submission, Mr Quinn said that the logic of the complainant’s case is that the Minister discriminated by failing to include all students with special educational needs in the eligibility criteria for the Summer Provision Scheme.  The complainant’s case is that he would have benefited from the Summer Provision Scheme and that the Minister discriminated by including some categories of children with special educational needs but not others.  If this complaint was to be successful on the basis advanced, Mr Quinn suggested that the only way that the Minister could remedy this would be by including all children with special educational needs in the scheme.  The logic of such a decision would apply to other schemes, in the health, education and social protection or any other policy areas which aim to provide targeted support to particular categories of people with specific disabilities or special needs.  Mr Quinn submitted that this cannot be correct and would not reflect the legislative intention of the Act.  Relying on the objective of s.14(1)(b), Mr Quinn submitted that the complainant’s contention that he has been discriminated against must be dismissed.

Opening his direct evidence, Mr Flynn said that he sat his Leaving Certificate in June of this year (2023) and he is in first year in the National University of Ireland in Maynooth, studying law, English and history.  In March 2020, when the schools closed, he was preparing for his Junior Certificate.  He was in a mainstream class.  He said that the school closure changed the way he was taught and that it was very stressful. 

Mr Flynn said that he is classified as legally blind, having a degenerative eye condition.  He has less than 10% sight.  He said that glare affects his ability to see, as does having to work in a different environment.  All his close vision work is magnified.

Mr Flynn said that, while he is academically strong, he is the least strong of his siblings.  Mr Kane asked him about extra support in school and he said that he had an SNA who ensured that all the class materials were accessible.  He used closed circuit TV to see the whiteboard and his teachers sent him class notes by email.  He got additional tuition in French, mathematics, music and science.  Mr Flynn described the role of a visiting teacher, who visited his school every six to eight weeks.  Sometimes she would meet just the teachers and occasionally, she would also meet him and speak to him about how he was getting on and demonstrate new technology.  He said that this teacher made sure that the school was doing what needed to be done. 

When the school closed due to Covid-19, Mr Flynn said that his SNA couldn’t come to his house and the extra tuition couldn’t be replicated over a Microsoft Teams call.  He said that he didn’t have as much one to one support during the Covid-19 closure, and, although he had support “the odd time,” he said that it wasn’t much benefit.  He said that the visiting teacher was in contact with him but that there wasn’t much she could do.

Referring to how classes were held on MS Teams, Mr Flynn said that he uses a touch-screen laptop, and that his laptop’s “pinch screen” facility wasn’t compatible with MS Teams.  He said that class materials were not accessible, especially in maths and science.  Mr Flynn said that when teachers presented YouTube videos, he couldn’t zoom in on the video to make it visible to him.  He said that he would have needed someone beside him to explain what was being presented.  He also referred to the “One Note” package, which uses colour coding for classes and subjects.  He said that he couldn’t see the colours because the contrast wasn’t clear enough.

During the school closure, Mr Flynn said that his mother helped him.  He got text messages and emails from his SNA, but, mainly, he said that he got support from his mother.

Describing the impact on his education, Mr Flynn said that any visual concept presented was a struggle for him, particularly in maths, science and music.  He said that “once you fall behind, it’s very difficult to catch up.”  He said that his “navigational skills took a hit.”  Not getting the bus to school, walking around in school – just being at home all the time impacted on his capacity to navigate his environment. 

Mr Flynn said that his mother applied for the Summer Provision programme for the summer of 2020, but he said that he didn’t fall into the eligible categories.  In September 2020, he returned to school and his normal supports were reinstated. 

Mr Kane referred to the offer to Mr Flynn from the Department of Education of 40 hours’ tuition.  Mr Flynn replied that he lost 11 or 12 weeks of school between March and June 2020, and between 30 and 33 hours of SNA support.  Asked why he didn’t take up the offer of 40 hours of tuition, Mr Flynn said that, when the offer was made, he was back in school and there were no teachers available to provide the tuition.

Mr Flynn acknowledged that the Summer Provision scheme changed in the summer of 2021 and that blind students in secondary school are now eligible.  By that stage, Mr Flynn said, the “damage was already done.”  Mr Flynn said that he was admitted to the Summer Provision Scheme in the summer of 2021 and 2022.  He said that “it’s strange that the change came about in 2021.”

Cross-examining of Mr Flynn

Mr Quinn told Mr Flynn that the change in the Summer Provision scheme between 2020 and 2021 was the result of a comprehensive review that had taken place over a number of years.  He said that the scheme is no longer based on a category of disability but is now based on need.  Mr Quinn said that the decision in Mr Flynn’s case was made by the Government.  Mr Flynn replied that he is not aware of the background to the changes introduced in 2021. 

Mr Quinn referred to Mr Flynn’s description of the supports that were not available to him during the school closure in 2020.  He said that he wouldn’t complaint about his SNA and he understands why the school was closed.  He had no comment when Mr Quinn said that the decisions regarding supports were made by the school, and that the Minister was not entitled to make decisions about the supports to be provided.

Mr Quinn said that the decision to use YouTube, MS Teams and One Note were matters for the school.  Mr Flynn said that he is not claiming that the Minister made decisions about technology.  He said that access to the Summer Provision scheme “would have helped me to catch up.”  He said that the loss of education during the closure is his complaint.  Mr Quinn sought to clarify if the fact of the school closure was a complaint and Mr Flynn agreed that it was not and that the failure is not having Summer Provision in 2020.

Mr Quinn said that the Department’s records show that Mr Flynn was provided with 15 hours of additional support through an “in-person supplementary programme” which was an additional support provided in 2021 for children who suffered during the school closure.  Mr Flynn said that he remembers getting this support in February 2021.  He said that he and his mother had great difficulty getting a teacher to do the hours.

Regarding the Summer Provision Scheme, Mr Quinn said that, in the context of the limited funding available, it is lawful for the Department to target supports at particular groups and that every benefit cannot be offered to every student.  Mr Flynn asked where the rationale is for differentiating between primary and post-primary students?  Mr Quinn replied that a significant element of the policy is to provide early intervention at a young age and Mr Flynn asked, “who exactly was consulted about this?”

Closing his cross-examining of Mr Flynn, Mr Quinn said that the offer of 40 hours of additional tuition in October 2020 was made on an exceptional basis, based on Mr Flynn’s particular needs.  This is the maximum number of hours that would have been available to him if he had qualified for the Summer Provision programme in 2020.

Re-direction by Mr Kane

Mr Kane concluded Mr Flynn’s questioning by reading the details of his complaint from the                                                                                      form he submitted to the WRC and asking him if he stands over his complaint.  Mr Flynn replied that he did.  He said that, because he has a degenerative condition, “as I got older, I needed more supports.”

Ms Walsh said that Cormac is the youngest of three children, and the second to have a visual impairment.  She described the supports available to her son before March 2020.  She said that the effect of Covid-19 was that one and a half years of Cormac’s education was arrested.  Compared to others with disabilities, who may progress developmentally, she said that Cormac’s eyesight is degenerating as he gets older.  Ms Walsh said that Cormac had a system set up as an independent learner.  He didn’t want his SNA to work with him during Covid-19.  He had a catch-up session once a week with special education teachers from his school.

When schools were closed, Ms Walsh said that “there was chaos for a while.”  When the schools closed and Cormac was at home, it was as if he lost his disability.  Ms Walsh said that the only way that children with a visual impairment can be independent is through education.  When the schools closed, Ms Walsh said that there was no accommodation for children with a visual impairment.  She said that the schools didn’t seem to know what to do.  She said that the visiting teacher sent them an email saying, “if you need me, I’m here.”  The “pinch screen” facility wasn’t available and Cormac had to use a magnifier on MS Teams.  Some staff were not available.  Ms Flynn said that she didn’t want Cormac to lose out on maths and science and that she tried to explain the YouTube video content.  On the One Note package, the colours were blurred for Cormac and Ms Walsh said that she tried to fill that gap. 

Mr Kane asked Ms Walsh about the offer of 40 hours’ tuition in October 2020.  Ms Walsh said that this came when the summer was over.  She said that this support could have been taken up during the summer, because no one was able to travel, including teachers.  When the schools re-opened in September, Ms Walsh said that they couldn’t find a teacher to do the tuition “for love nor money.”

When she applied for the Summer Provision for Cormac in June 2020, Ms Walsh said that she thought that they would get this support, even though it was a scheme for primary school students.  She said that she thought someone would understand Cormac’s needs.

When Cormac went into transition year in September 2020, he received 15 hours of tuition from a French teacher.  By October, when the call came with the offer of 40 hours’ tuition, Ms Walsh had submitted a complaint under the Equal Status Act.

Ms Walsh said that, by refusing Cormac access to the Summer Provision Scheme, it seemed that “no one was thinking.”  She described this as casual discrimination.  She said that Cormac was at a key stage in his life.  He was thinking about being a physiotherapist and maths and science were important subjects.  The effect of the Covid-19 pandemic meant that he had to drop honours maths and change his choices for the Leaving Certificate.  He couldn’t do music because he missed out on so much of the theory.  He dropped science altogether because he missed so much of the course.  As an alternative, Cormac took up business studies through the Institute of Education.  Ms Walsh said that Cormac lost out on school between March and June 2020 and that he lost about 33 hours of one-to-one tuition.  She said that teachers could have done more over MS Teams and that there was a lack of imagination on the part of some.

Cross-examining of Ms Walsh

In response to a question from Mr Quinn, Ms Walsh repeated that it wasn’t possible to get a teacher to provide the 40 hours of tuition offered to Cormac in October 2020.  She said that it seems unfair to offer support to Cormac when that support couldn’t be taken up.

Mr Quinn suggested to Ms Walsh that her son’s complaint is about a policy issue, that is, the decision of the Department not to include secondary school children with a visual impairment in the school provision scheme.  Ms Walsh replied that Cormac was discriminated against when a service was provided to some students with a disability, but not to him.  Support that could have resolved his difficulties was provided to others.  After they made a complaint to the Department, they received an offer of 40 hours of tuition.

Mr Quinn asserted that the decision to offer the Summer Provision Scheme only to primary school students is permitted by s.14(1)(b) of the Equal Status Act as a positive action measure and that it is not unlawful.  Ms Walsh disagreed and said that this is not positive discrimination.  If the decision was made by the Government, then, Ms Walsh suggested, the Government is misinformed.  She said that the Government relies on civil servants to implement policies.

Regarding the other part of Cormac’s complaint, the failure to provide support during the school closure, Mr Quinn said that these supports were the responsibility of the school, and not the Minister.  Ms Walsh said that the National Council for Special Education gives advice to the Minister, who has a remit to ensure that policies are acted upon.  She said that there must be an onus on the Minister to ensure that policies are implemented.  She said that teachers were being paid and she asked what they were doing.  Considering the huge spend on education during Covid-19, the policies must be acted upon.

Mr Quinn said that the Department has no record of Ms Walsh raising an issue about SNAs, printing or the technology available to Cormac during the school closure.  Ms Walsh said that she was in contact with the visiting teacher service and that she advocated on behalf of her children.  Ms Walsh said that complaints were made by Féach, the organisation of parents of visually impaired children. 

Mr Quinn said that the Minister provided “vastly increased funding” and that there was comprehensive engagement with schools.  Ms Walsh disagreed and said that teachers working in the school were not supporting children with special needs.  She said that it isn’t good enough to produce policies and the Minister has a responsibility to ensure that teachers are doing their jobs. 

Re-direction by Mr Kane

Mr Kane asked Ms Walsh about her view of how teachers were expected to provide support to students with special needs during Covid-19.  She said that “as a boss, you find out what’s being done and you provide a set of tools.”  That box may be ticked, but she said that the question must then be asked, “Is the policy effective?”  She said that schools will say that they received so much information that “it was disinformation.”  She said that she places some of the blame for Cormac’s situation on the school, but that mostly, she holds the Department responsible.  She said that there is no point in the Department sending the school a memo telling them that they must remember their children with disabilities.  The Department has a responsibility to ensure that there is follow-through regarding the implementation of the policy. 

Ms Walsh said that education is the key to Conor’s success so far and that there was a big gap in his development during Covid-19.  She said that his education “fell down” and someone must take ownership.  His options about what he could do in his future changed.

In response to a question from Mr Kane, Ms Walsh explained that the visiting teacher is from the National Council for Special Education.  This teacher advises the student’s class teacher.  This advice was particularly needed during Covid-19.

In response to questions from me, Ms Walsh said that she approached the principal of Cormac’s school and that she approached every teacher.  She said that the response she received was “don’t add any more pressure.”  Ms Walsh said that the teachers “hadn’t got the wherewithal” to provide help.  She said that the teachers didn’t do their special needs hours and no one suggested that they would be available for Cormac.  She said that she thought about paying for private tuition, but the expense would have been exorbitant.

Ms Mannion is the assistant secretary general of the Department of Education, with responsibility for special education.  She was previously a principal officer in the schools division, with responsibility for Covid-related measures.  There are currently 4,200 primary schools and 800 post-primary schools which are established as separate legal entities, each with a patron, who oversees a board of management.

Outlining the role of the Minister for Education, Ms Mannion said that the Minister provides funding, resources, policies, budgeting and the inspectorate.  The Department sets out policies and provides resources to implement those policies.  Ms Mannion said that it is not accurate to describe the Minister as having a role in managing schools.  The Department provides direction and policies to schools but does not manage individual schools.

The school where the complainant was a student is under the management of an Education and Training Board, (ETB).  These are 16 ETBs in Ireland, and each one is a separate legal entity with a 21-member board. 

Mr Quinn asked Ms Mannion about the role of the Minister regarding the provision of special education.  Ms Mannion replied that the Minister must ensure that resources are available.  The Department allocates a block of hours to a school for special education.  Ms Mannion described the “continuum of support,” where children with the most needs get the most support.  This is in line with the United Nations Convention on the Rights of Persons with Disabilities, which recommends an approach based not on a diagnosis of disability, but on an assessment of needs.

Ms Mannion said that support may be provided on a one-to-one basis, or in teams of students.  The school must allocate hours of support according to the needs of students.  Ms Mannion referred to the role of special education teachers (SETs) who are qualified teachers.  Special needs assistants (SNAs), of which there are currently 20,000 employed, work with special needs children, in special needs classes and in mainstream classes.  Ms Mannion said that every child with special needs has a student support plan.  She said that mainstream teachers, special education teachers and special needs assistants work together to support individual students.

Ms Mannion said that overall, the Department of Education has a budget of €10 billion, and that an additional €130 million has been allocated for special education in 2023. 

The National Council for Special Education was established in 2003 and liaises with parents and schools to ensure that resources are allocated.  The Department estimates that 25% of children have special needs, 97%, or 18,000 of whom are in mainstream schools.  Special schools provide education to 8,000 students.  Ms Mannion said that the Department must target resources at the highest level of need.

Mr Quinn asked Ms Mannion where the complainant fits in to the Department’s resource allocation policy.  Ms Mannion replied that the definition of success is that an individual is able to be independent.  She said that the Department wants to “change the narrative” for students like the complainant.  She said that €100 million has been spent on technology in terms of capital equipment and software.  She said that during Covid-19, the need for technology became apparent.

Mr Quinn asked Ms Mannion about the role of the Department of Education versus the role of the board of management of a school.  She said that the Department sets out a range of policies and provides training, support and advice.  She said that it’s up to each school to deploy technology to suit their students’ needs.  In terms of the use of MS Teams, YouTube and One Note, Ms Mannion said that it is up to the school to decide on the appropriate software and technology for its students.

Addressing the specific support provided to the complainant’s school, Ms Mannion said that, in 2019, 55 hours of special education teaching hours were available each week in the school and this has increased to 60.5 hours in 2023.  The school has one special needs assistant.  Ms Mannion said that the school received all the additional supports that were requested during Covid-19.

Referring to the closure of schools in March 2020, Ms Mannion said that this was the most serious decision ever taken by the Department of Education.  On March 12th 2020, in an attempt to break the cycle of Covid-19, the Government decided that schools would close for two weeks.  The Department immediately moved to considering how to support students and teachers to attend school remotely.  The challenge was to provide education to one million children by 100,000 teachers.  Ms Mannion said that no one believed that remote teaching was as good as being in school.

Asked about the support provided to students with special needs during the school closure, Ms Mannion said that there was daily contact between senior Department officials and the Health Protection Surveillance Agency with regard to how to protect public health.  She said that the Department wanted to open special schools and schools providing education in disadvantaged areas.  She said that some of these schools were open, although students were not there.  She said that parents were facilitated to collect resources to help with their children’s education at home.

Ms Mannion said that everything done in the Department was based on public health advice and that officials turned the public health advice into policies.  The Department also put proposals to Government.  On March 19th, a decision was made that the Junior and Leaving Certificate exams would be abandoned.  On May 1st 2020, the Department prepared a road map for re-opening schools, with the most vulnerable children at the centre of the planning.

Mr Quinn asked Ms Mannion about the Summer Provision programme in the summer of 2020.  She said that this programme was directed at children with complex needs and children who were disadvantaged.  On July 6th 2020, Ms Mannion said that the Department sought an increase in the cost of funding the programme from €15 million.  The programme has expanded every year and, in 2023, the cost was €40 million.

Ms Mannion referred to the book of documents submitted by the respondent which described the Guidance on Continuity of Schooling.  She said that, when Covid hit the country, the Department met with teachers, unions and parents’ representatives.  On April 26th 2020, guidance was produced for the continuity of schooling for children with special needs.  Ms Mannion said that the evidence of the Department is the special education teachers and special needs assistants supported children, but not in the same way as before.  She said that other children without special needs also needed support.  In terms of additional funding during Covid-19, Ms Mannion said that the Department provided €400 million in additional funding.  A further €7 million was provided to the post-primary sector.

Ms Mannion said that the public health advice was that schools were to do as much as possible online.  For children who couldn’t access their education online, the schools made other arrangements.  Regarding technology, Ms Mannion said that schools were instructed to use a range of technology to meet their students’ needs.  Students were also encouraged to take books home and resources were provided for teachers.

Ms Mannion said that the first students back at school were children with special needs.  Resources were provided for spacing out students and social distancing.  Schools were advised to focus on the mental health and well-being of students and guidance was provided by school psychologists and by inspectors.  There was also a focus on numeracy and literacy.  Programmes were designed to mitigate loss of learning during the period of the school closure.  There was also a supplementary programme to support children with extra tuition.  The complainant was allocated 15 additional hours.

Schools were allocated 350 hours of tuition for all their students, with the schools to decide how the hours were to be allocated.  A guidance document was included in the respondent’s book of papers at the hearing, setting out how the Department intended to support children with special educational needs with a home-based summer programme in the summer of 2020.

Ms Mannion said that the decision to close schools was done on the basis of public health advice, and that the situation was very challenging but that schools “stepped up to the plate.”  She said that Ireland retained its place internationally in terms of literacy and mathematics.

Mr Quinn asked Ms Mannion if the Department could have done more.  She said that, as soon as restrictions were lifted, children with special needs were back at school first.  The Department’s officials met the stakeholders every day and were pro-active and stayed in touch throughout the closure. 

Mr Quinn asked Ms Mannion about the weekly meeting officials from the Department had with stakeholders.  Ms Mannion said that, in accordance with the Education Act 1998, the stakeholders are the patrons, the management bodies and the parents’ councils.  The purpose of the stakeholder meetings was to consider how to provide help and support to students while the schools were closed.

The patron body of the school that the complainant attended is the Education and Training Board.  Ms Mannion said that the Board attended every meeting with the Department and told the Department what was needed.

Mr Quinn referred to Ms Walsh’s contention that the Department’s guidance was not implemented in the complainant’s school.  Ms Mannion said that this is not the Department’s evidence.  She said that everyone was pro-active and pulled together.  She said that no complaint was received about special education teachers and special needs assistants in the complainant’s school.  She said that advocacy groups contacted the Department and officials were aware that remote teaching was not as effective as being in school.  The Department wanted students back in school as soon as possible.  She said that she couldn’t say that no one made a complaint about resources.  She said that if a parent or a school contacted the Department with a concern, an official in the Department would phone the school.

Ms Mannion said that the National Council for Special Education is a key partner with the Department.  She said that the information that the Department has about the National Council for Special Education is that they were helpful, and that they followed public health advice.

Referring to the Summer Provision Scheme, Ms Mannion said that a decision was made in 2020 to expand the scheme.  The objective was to support children with the most needs.  The initial programme was for children with profound needs and children with autism.  The scheme was expanded in 2000 and 2021 to include more children.  Ms Mannion said that “every time we go beyond what’s set out in the Education Act 1998, we have to go to Government.”

When the scheme was expanded in the summer of 2020, Ms Mannion said that the objective was to identify children with the greatest level of need.  Having missed out on school since March, an intervention for children to support core abilities in reading, writing and mathematics makes a difference.  Ms Mannion said that the Department’s intention was to get funding to expand the summer programme and, in 2023, the investment was €40m.  For children with visual and hearing impairments, Ms Mannion said that the visiting teacher targets resources at the youngest children first.

Mr Quinn referred to Ms Walsh’s evidence that an offer of 40 hours of tuition in October 2020 wasn’t much help, when teachers weren’t available.  Ms Mannion said that 1,400 children are taught from home all year round and that teachers are available all year around.  She said that the Department would have helped Ms Walsh to find a teacher.

Cross-examining of Ms Mannion

Mr Kane began Ms Mannion’s cross-examining by asking her if the Department of Education needed authority from Government to expand the Summer Provision Scheme.  Ms Mannion replied that the Department officials prepared a memo for Government, based on what they sought to achieve, and detailing the financial and policy implications.  This was submitted to the Government on June 11th 2020.  Ms Mannion accepted that children with special needs were more seriously impacted when the schools closed and that the Summer Provision Scheme of 2021 was aimed at addressing this.  Ms Mannion also accepted that the complainant could have benefited from access to the Scheme in the summer of 2020.  Ms Mannion said that decisions were taken by the Government and implemented by the Department of Education.  She agreed that the Government would have considered the Department’s input regarding the expansion of the scheme.

Mr Kane asked Ms Mannion if the Government or the Department decided on the scope of the Summer Provision Scheme in 2020.  Ms Mannion said that when the Department was running the scheme in the summer of 2020, they had to take advice regarding public health.  The Scheme couldn’t be provided in all post-primary schools and they identified primary schools and “DEIS” post-primary schools.  The Delivering Equality of Opportunity in Schools (DEIS) programme aims to reduce educational disadvantage.  Under the DEIS programme, schools with the highest number of students at risk of educational disadvantage get extra resources.  Ms Mannion said that the Department set out what it anticipated could be achieved in relation to the expansion of the scheme. 

Mr Kane referred to the complainant’s visual impairment as a degenerative condition.  He said that, as a result, his needs increase as he gets older.  Ms Mannion said that the building blocks on which education is based means that resources are targeted at children at an early age.  She said that primary school children need more support than post-primary school children.  Mr Kane asked if this was not absurd, when children with a visual impairment have increasing needs.  Ms Mannion said that the Department has to make decisions regarding who is the most in need. 

Mr Kane referred to page 114 of the report of Ms Caroline Lane on the impact in the complainant of the school closure during 2020, where Ms Lane stated,

“As children progress in their education journey, the learning burden increases, not just as a result of increased reading and writing demands, of the presentation of visual concepts in STEM for example, but also in learning how to access such materials.”

Ms Mannion said that she does not accept that the Department discriminated against the complainant.  She said that she didn’t think that the Department would receive the €40 million in additional funding, but she said that “Covid changed everything.”  Ms Mannion said that she has no reason to doubt the submission made by the complainant regarding the disturbance to his education, but she said that special education teachers and special needs assistance “were not lost.”  She accepted that remote teaching was not as good as being taught in the classroom, but, she said, this is not discriminatory. 

Mr Kane referred to the minimum responsibility of the Department to oversee and provide supports to children with special needs.  He referred to the “tri-partite relationship” between the board of management of the school, the Department of Education and the management body.  Mr Kane said that, as the Covid-19 pandemic was a once in a lifetime event, it is unfair of the Department to point to the responsibilities of the board of management.

Mr Kane described funding as “not short during Covid-19.”  Ms Mannion said that the situation is more complicated and that the Department had challenging discussions with the Department of Public Expenditure and Reform (DPER). 

Mr Kane asked Ms Mannion if funding for the expansion of the Summer Provision Scheme was refused by DPER.  He asked if the Department didn’t get the money it sought for the scheme.  Ms Mannion replied that the Department looked for “a package of funding” and that it wasn’t possible to know how many children would need the Summer Provision Scheme.  Ms Mannion said that the Department was engaged in a range of initiatives involving a return to school plan for September 2020 and the Summer Provision Scheme.  She said that officials in the Department didn’t know how much money would be needed; if less children had availed of the scheme, more funding would have been available for the following year.  As 2020 went on, she said that the Department got more resources.

Re-direction of Ms Mannion by Mr Quinn

Mr Quinn asked Ms Mannion if there was an option for the Department to expand the summer programme in 2020.  Ms Mannion replied that it was “too much” to expand it that summer.  She said that post-primary schools never had Summer Provision and that the scheme expanded to target children who were disadvantaged.  She said that reports had been published on the value of the Summer Provision Scheme in DEIS schools.

Ms Mannion agreed with Mr Quinn that the Department asks for additional funding every year.  During the Covid-19 pandemic, she said that they did as much as they could as fast as they could and they were determined to make things better every year.   

Mr Quinn referred to Ms Walsh’s application for access to the Summer Provision scheme for her son.  A copy of the application was included in the respondent’s submission.  Mr Quinn referred to the explanation that Ms Walsh received setting out the reason that her son didn’t qualify.  Mr McGarvey said that his office contacted Ms Walsh on October 16th 2020.  Ms Walsh had alleged that there had been a breach of the Equal Status Act.  Mr McGarvey said that he had a conversation with Ms Walsh about Cormac’s experience during Covid-19 and he offered Ms Walsh 40 hours of home tuition.  He said that he also indicated to Ms Walsh that the Department intended to broaden the scheme.  He said that the offer of the 40 hours’ tuition was on an exceptional basis and also because there was an intention to expand the scheme.

Cross-examining of Mr McGarvey

Mr Kane asked Mr McGarvey if the reason that Cormac was offered 40 hours’ tuition was because of the loss of his education when the schools were closed.  Mr McGarvey said that that was part of the reason and in recognition of the fact that the Department intended to make the scheme more widely accessible.  He said that the fact that Ms Walsh submitted a complaint was also a factor.

Mr McGarvey did not accept that it was difficult for Ms Walsh to find a tutor for her son.  He said that there were a lot of teachers available who could have given support to Cormac.

Mr Kane asked Mr McGarvey if there was any impediment to the Department admitting a student to the Summer Provision Scheme on a discretionary basis.  Mr McGarvey replied that they normally adhere to the terms and conditions of schemes.

The Legal Framework

The preamble to the Equal Status Act 2000 states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Act:

(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.

Subsection (6)(b) tells us that a “service provider” is,

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

Section 5(1) is the opening section of Part II of the Act, titled, “Discrimination and Related Activities.”  This section specifically addresses the disposal of goods and the provision of services: 

(1)  A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

In accordance with these objectives, as a person with a vision impairment, the complainant is entitled to be provided with reasonable accommodation in his efforts to access education.  In his case, reasonable accommodation means extra tuition to help him to keep up with students in his class, support to ensure that he can access content and that he understands concepts being taught and technology to overcome his visual disability.

The Department’s case is that the failure to permit the complainant to avail of the Summer Provision Scheme is remedied by section 14(1)(b) of the Act, which provides for,

(b) preferential treatment or the taking of positive measures which are bona fide intended to -

(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs[.]

The complainant makes two claims regarding the infringement of his rights as a disabled person.  Firstly, he claims that his rights were infringed when his usual range of supports were not available during the period of around 12 weeks when his school was closed in 2020 due to the Covid-19 pandemic.  He claims that this constitutes indirect discrimination, or alternatively, a failure to provide reasonable accommodation for his disability.  Secondly, he claims that he was discriminated against when the Department of Education and Science did not permit him to avail of the Summer Provision Scheme in the summer of 2020.

I am satisfied that, in accordance with s.38A of the Act, the evidence of the complainant is sufficient for me to presume that he was discriminated against on the ground of his disability and the burden of demonstrating the contrary rests with the Department.

Findings on the School Closure Complaint

As a person with a visual impairment, the complainant argues that he was indirectly discriminated against when schools were closed between March and June 2020, because the effect of the closure had a greater detrimental impact on him, compared to his classmates who have no disability.  Alternatively, he claims that he was directly discriminated against when he wasn’t provided with reasonable accommodation to help him to continue his schooling remotely on an equal basis with his classmates.

At the hearing, the complainant said that he had no complaint about the fact that schools had to close because of Covid-19 and his specific grievance under this heading is the absence during the closure of the supports that were available to him when he was at school.  It is apparent therefore, that this is a complaint concerning the failure of the school to ensure that the complainant was accommodated to ensure that he could attend classes remotely and continue his education with only the same degree of inconvenience as his peers.  The respondent’s witness, Ms Mannion emphasised that remote learning was not as effective as classroom learning, and I have no issue with this; while not ideal, remote schooling was certainly better than no schooling.  The issue for the complainant is that, when teaching was done remotely, he was at a greater disadvantage than students who are not blind, because of the mainly technical problems that prevented him from keeping up with his subjects.  These technical problems included the lack of access to an A3 printer, the fact that subjects taught on MS Teams and with YouTube videos couldn’t be enlarged on his screen.  He also complained about the absence of a special needs assistant to take extra notes and draw diagrams and the suspension of one-to-one tuition in maths, science, French and music.  These supports were provided to the complainant in the normal course of his education when his school was open.  The complainant claims that the failure of the school to ensure that he had these supports during the closure meant that he had to drop honours maths and that he had to drop science altogether and take on business studies in a different school.  The effect overall is that he had to change his plans to study physiotherapy at third level.  

The complainant’s mother, Ms Walsh, argued that the Minister should have had oversight of what was happening in schools and that the Department should have ensured that schools were supporting children who needed additional measures to keep up with their education.  I understand from the evidence of Ms Mannion that no support with withheld from the complainant’s school.  It is not the responsibility of the civil servants in the Department of Education to manage teachers or to direct school principals in the day to day running of schools.  It is my view that the response of the school to the needs of the complainant was not adequate, and that it would not have been unduly difficult to meet his needs, particularly the problems that required a technical solution such as access to an A3 printer and the transfer of subject material to software that could enlarge text.  It seems to me also that the special needs assistant could have been available during remote classes and notes and diagrams could have been sent to the complainant by email as an alternative to giving them to him physically in the classroom. 

The Department’s position is that the Minister is responsible for education policy and for allocating funding to give effect to policy objectives and that she is not the provider of the services that were not provided to the complainant.  I accept this point and it is my view that the support that the complainant missed out on during the school closure was the responsibility of his school, and the principal and teachers in his school.  The Department has delegated the day-to-day management of the 800 post-primary schools in the State to school principals in the first instance and to boards of management and ETBs.  Ms Walsh said that the response of the principal and teachers in the complainant’s school was, in short, that she should ease up on the pressure.  It is the prerogative of every parent however, to decide what their child needs based on their capabilities and it seems to me that more practical measures could have been taken to support the complainant to ensure that he didn’t fall behind.  I agree with the complainant that the failure of his school to provide him with reasonable accommodation for his disability during the school closure means that he was discriminated against on the ground of his disability.  I find however, that these supports were within the control of the school to provide and that this task was not the responsibility of the Minister or the Department.

Findings on the Summer Provision Complaint

The complainant claims that he was directly discriminated against when the Department excluded post-primary students with a visual impairment from eligibility for the Summer Provision Scheme in 2020.

In response to a judgement of the High Court in O’Donoghue v Minister for Health and Others (footnote 10), the July Provision Scheme was established in 1997 to provide an additional month of schooling for children with severe learning difficulties who were not expected to proceed to secondary school.  The Scheme was expanded in 2000 to include children with autism.  In 2020, following the school closures due to Covid-19, a home-based programme was introduced for children whose school hadn’t got the capacity to run the July Provision Scheme.  In these circumstances, the following children were invited to apply:

1.      Pupils with a diagnosis of autism;

2.      Pupils with severe and profound learning difficulties;

3.      Children in a special class or in a special school;

4.      Children transitioning into a special class;

5.      Primary school pupils with Down Syndrome, who are deaf or hard of hearing, blind or with a severe visual impairment, and children with moderative learning disabilities or emotional behavioural difficulties.

An email dated June 19th 2020 from an official in the Special Education Section of the Department of Education to the complainant’s mother, Ms Walsh, indicates that the home-based scheme was also available to “eligible post-primary children.”  When Ms Walsh asked for clarification regarding eligibility for her son, she was informed on June 25th that only blind and visually impaired children in primary schools were included. 

Preferential Treatment not Prohibited under Section 14(1)(b) of the Equal Status Act

The Department’s defence to this claim of discrimination regarding access to the Summer Provision Scheme is that s.14(1)(b) of the Equal Status Act provides that preferential treatment of one group may not result in another group being discriminated against, if in good faith (“bona fide”), the preferential treatment was intended to benefit a particular group (see the Department’s submission on page 17 above).  Section 14(1)(b) provides that it is not discriminatory to offer preferential treatment or positive measures which are “bona fide” intended to promote equal opportunities for disadvantaged people or to cater for the needs of a category of people who may require facilities or assistance.  Mr Quinn argued that the test regarding the absence of discrimination is not whether there is a better way of supporting a particular group, but whether there is a bona fide intention to achieve that goal.

I wish to consider subsection (i) of s.14(1)(b) and the reference to preferential treatment which is not prohibited if it is “bona fide” intended to,

(i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons[.]

In her evidence for the Department, Ms Mannion said that its policy is to target interventions at young children as a priority, based on the premise that early intervention supports a child’s development and establishes a basis for future learning.  It seems to me that this is a reasonable and, in educational terms, a pedagogically sound approach.  The argument the Department makes to support the preferential treatment of blind children in primary schools regarding the Summer Provision Scheme in 2020 is that, in relation to secondary school students, they are more disadvantaged and therefore more eligible for access to the Scheme.  No evidence was submitted to sustain this argument however, and the Department’s officials simply assumed that a young blind child requires greater support compared to a blind child in secondary school.  The plain meaning of the words “in relation to other persons” in subsection (i) means “in a different category to other persons” or “compared to others.”  The complainant was in the same category as blind children in primary schools, but further along in his education.  In its defence of its decision to exclude him, the Department cannot rely on its “bona fide” objective to benefit blind children in primary schools without establishing that the Scheme was of more benefit to them, compared to blind children in secondary schools. 

I accept the complainant’s position that he required the same support that was offered to blind primary school children in the summer of 2020, and that he would have benefited greatly from that support, due to the complexity and reading load of subjects at secondary school.  In the context of the upheaval during Covid-19, and the fact that policy decisions had to be made quickly and without the benefit of research, it is my view that a more faithful application of the “bona fide” test would have been to admit the complainant to the Summer Provision Scheme. 

Considering subsection (ii) of s.14(1)(b), Mr Quinn referred to the decision of the Equality Officer in McCall v Area Development Management (footnote 13), the facts of which, like Pobal v Hoey (footnote 2) relate to the taxi hardship scheme introduced in 2002.  Compensation of approximately €13,000 was available to taxi drivers over the age of 50 and to drivers with disabilities who were earning a living from renting their licences.  Mr McCall was under age 50 and he was not disabled.  In relation to the disability ground of his complaint, the Equality Officer concluded that his claim failed because,

“… section 14, paragraph (b)(ii), requires that there be a bona fide intention to cater for the special needs of a category of persons who, because of their circumstances, may require assistance not required by persons who do not have those special needs.  The test does not require me to decide whether the provisions for persons with a disability in the Scheme were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category, merely that there was a bona fide intention to cater for the special needs of a category of persons who may require this assistance.  I am satisfied that, in including the disability category in the Scheme, there was a bona fide intention to help disabled persons whose income was reduced when their taxi licences lost value following liberalisation and that this is not prohibited by the Equal Status Act.”

It is my view that this decision is not useful to the respondent’s case.  The taxi hardship scheme was established to provide compensation for a small number of workers in a unique and temporally finite situation arising from a government decision to change the law on the requirement to hold a special licence to drive a taxi.  That scheme was a solution to an industrial relations problem.  Mr McCall argued that he was discriminated against because disabled people were treated more favourably than people who were not disabled.  In the instant case, the preferential treatment was offered to one group of blind students but not offered to another group of blind students.  It seems that there was a “bona fide” intention to help one group of blind students, those in primary schools, but not the group in secondary schools.

Unlike the taxi hardship scheme, Summer Provision is an important component of the State’s response to supporting children with disabilities to achieve their potential.  Mr McCall was not disabled, and he was not in the same category of persons who were disabled and entitled to benefit from the taxi hardship scheme.  The complainant is a blind student in the same “category of persons” as other blind students but he was excluded from a scheme that was open to primary school students.  The rationale for this was a decision that primary school students were more eligible than secondary school students.  I find that this approach is not consistent with the objective of s.14(b)(ii) of the Act which provides that preferential treatment is not prohibited if it is, bona fide intended to,

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs[.]

As a blind student, the complainant’s comparators are persons who are not blind and who therefore “do not have those special needs.”  It is my view that the Department cannot rely on s.14(b)(ii) to argue that it was entitled to offer preferential treatment to primary school pupils who are blind, because the complainant is in the same category as the children who were offered the preferential treatment. 

It is reassuring to note that, since the summer of 2021, the Summer Provision Scheme is now open to visually impaired students in primary and secondary schools.

Mr Quinn referred to the decision of the Equality Officer in the case of Mrs X (on behalf of her daughter, Ms Y) v the Minister for Social and Family Affairs (footnote 14).  Ms Y has Down Syndrome and, in April 2003, in advance of her 16th birthday, she applied for a disability allowance.  Her application was refused because her financial means exceeded the statutory limit for entitlement to the payment, which is set out in the Social Welfare Consolidation Act 2005.  The effect of Ms Y not having an entitlement to a disability allowance meant also that she was not entitled to a free travel pass.  The Equality Officer found against Mrs X (on behalf of Ms Y) on the basis that there was provision “for the taking of such positive measures within section 14(1)(b) of the Equal Status Acts and that such action does not constitute discrimination.”

The Department’s decision to exclude the complainant from the Summer Provision Scheme is not equivalent to the decision of the Department of Social Welfare not to issue a free travel pass to Ms Y.  Ms Y’s financial resources were such that she was deemed ineligible for a disability allowance and a travel pass, and, in this regard, she was treated equally to people with the same and other disabilities who were ineligible because of their means.  No means-based rule applied to the Summer Provision Scheme; it is not underpinned by primary legislation and it was open to the Department to include the complainant in the Scheme without falling foul of any law or regulation.

The decision of the Equality Officer in Ennis v GAA (Leinster Council) (footnote 15), focussed on the policy of the Leinster Council of the GAA to allow free entrance to matches to wheelchair users but not to people with other disabilities.  Mr Ennis suffers from a back injury and he has the benefit of a disabled driver’s parking permit.  The Equality Officer found that the Leinster Council could avail of the defence provided in s.14(b)(1) of the Act, and that it was not discriminatory to offer preferential treatment to wheelchair users, who have particular mobility issues and who generally have to attend matches accompanied by another person who must pay for a ticket.  Mr Quinn argued that, in the instant case, the Department’s position is stronger than that of the GAA Leinster Council in Ennis, because the Department provides other supports to the complainant during the school year.  No such supports were provided to Mr Ennis by the GAA.

I disagree with this argument, principally due to the difference in scale of the benefit being provided.  As a 15-year-old with a visual impairment trying to keep up with his schoolwork after the schools were closed due to Covid-19, the Summer Provision Scheme was of significantly greater value compared to the €5 that Mr Ennis had to pay for his match ticket.  Mr Ennis was not prevented from attending the GAA match, but, he was treated less favourably compared to wheelchair users.  The complainant has the same disability as the people who were treated more favourably than him.

Conclusion

In defence of the claim of discrimination, for the Department, Ms Mannion gave evidence that the scheme couldn’t be provided in all post-primary schools and the Department identified students in primary schools and “DEIS” post-primary schools as eligible.  At the conclusion of her evidence, Mr Quinn asked Ms Mannion if the Department had an option to expand the Summer Provision Scheme into post primary schools in 2020.  Ms Mannion replied that it would have been “too much,” and that the Department targeted disadvantaged students in DEIS secondary schools.  She said that, in respect of funding, it wasn’t possible to estimate how many children would take up the offer of the home-based Scheme and the Department looked for a “package of funding,” ultimately receiving €20.4m compared to €15.7m in 2019.  Ms Mannion said that as 2020 went on, more resources were provided to the Department.  In that year, almost 23,000 students availed of the Summer Provision Scheme, compared to 13,000 in 2019.  By 2023, the Scheme had been expanded to include more categories of students with disabilities, including blind children in all secondary schools and not only DEIS schools and the funding now stands at €40m.

Ms Mannion said that the scheme is now offered to students based on their needs, and not based on specific disabilities.  No concern was raised about the financial implications of this approach for the future.  It is my view that, in the summer of 2020, it was open to the Department to include the complainant in the Summer Provision Scheme, based on a simple assessment of his needs in the context of the impact of the Covid-19 school closures on his education.  There was no legal impediment to him being included and there was no issue with funding.  In the context of the extraordinary response of the Government and the Department of Education during the pandemic, and the availability of an additional €400m in funding, there was scope to extend the eligibility of the Summer Provision Scheme to the complainant and other visually impaired students who may have applied.  I find no merit in the argument that his inclusion would have presented a risk to support schemes in the health, education and social policy areas, because, since 2021, blind students in secondary schools are eligible and no such risks have been identified.

For the reasons I have set out, I reject the Department’s reliance on s.14(1)(b) of the Act and its argument that discrimination did not occur because, in good faith, or “bona fide,” its intention was to provide a benefit to a specific disadvantaged group (at subsection (i)) or to cater for the special needs of a particular group (at subsection (ii)).  It is my view that the complainant’s disability is encompassed by the meaning of a person with special needs in subsection (ii) and that he should have eligible for the home-based Summer Provision Scheme in 2020. 

In accordance with section 25(4) of the Equal Status Acts 2000 – 2018, I conclude my investigation.

In relation to the first complaint, the provision of supports during the school closures between March and June 2020, I find that the complainant was not provided with reasonable accommodation to support the continuity of his education.  I find however, that it was the responsibility of his school to provide that reasonable accommodation.  I find therefore, that the Department is not the correct respondent in terms of this complaint.

Considering his second complaint, the exclusion of the complainant from eligibility for the Summer Provision Scheme in 2020, I find that, contrary to section 4 of the Act, the Department discriminated against him on the ground of his disability.  In accordance with section 27, I may order the Department to take a particular course of action to address the discrimination and I may make an order for compensation.  I am satisfied that the discrimination complained about was addressed with the expansion of the Scheme in 2021 to students with disabilities in secondary schools outside the DEIS scheme, including visually impaired students.  In terms of redress therefore, to take account of the approximate cost of 40 hours’ home tuition in 2020 and compensation for the effect of the discrimination on him, I order the Department to pay the complainant €5,000.

Discrimination, disability, Summer Provision Scheme