Case Number: DEC-S2014-016. Equality Tribunal

• Judgment Date: 01 October 2014
• Year: 2014
• Docket Number: DEC-S2014-016
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL EQUAL STATUS ACTS 2000-2011 Decision DEC–S2014–016 PARTIES Ms A (on behalf of her son) and on her own behalf (Represented by Conor Power B.L., instructed by the Equality Authority) and Board of Management of a National School (Represented by Mason Hayes & Curran) File References: ES/2012/0078 & ES/2012/0079 Date of Issue: 2 October 2014

Keywords: Conditions of participating in education – discrimination – failure to provide reasonable accommodation - disability & family status

1. Claim

1.1. The case concerns a claim by Ms A (hereinafter the complainant) that the Board of Management of a National School discriminated against her son on the grounds of his disability contrary to section 3(2)(g) of the Equal Status Acts 2000 to 2011 and failed to provide him with reasonable accommodation, and that they discriminated against her on the grounds of disability by association and family status contrary to section 3(2)(c) of the Equal Status Acts.

1.2. The complaints were referred under the Equal Status Acts to the Director of the Equality Tribunal on 20 June 2012. On 4 March 2014, in accordance with his powers under S. 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Hugh Lonsdale, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. Submissions were received from both parties and, as required by Section 25(1) of the Equal Status Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 21 May 2014.

2. Complainants’ Submission

2.1. The complainant’s son was born on 14 January 2004 and enrolled in the National School in December 2008. In May 2009 the son had a psychological assessment and was diagnosed with Mild Autism and ADHD. A report from a Senior Clinical Psychologist (Ms B), dated 3 June 2011 stated that the son required the support of a full-time one-to-one Special Needs Assistant (SNA) whilst he is at school. In September 2011 there was a supplementary report by a Behavioural Specialist (Ms C).

2.2. It is acknowledged that from the start of the September 2011 school year the son exhibited challenging behaviour but it is submitted that this behaviour is a direct result of his disability. It appears that at a meeting on 20 September 2011 the Board of Management decided to shorten the son’s school day to one hour. There was a meeting on 28 September to discuss the son between the Principal, Ms B and an Educational Welfare Officer but the complainant was not invited.

2.3. On 29 September the complainant had a meeting with the Principal and her son’s class teacher at which she was informed that her son’s attendance would be reduced to one hour per day from 3 October 2011. During this meeting it was suggested that her son should be home schooled or could find another school. The respondent wrote to the complainant on

3 October 2011 confirming that the time her son would be attending school was being reduced to one hour because of his behaviour. It was stated that he was a health and safety risk to staff and other children.

2.4 The complainant submits that the reduction to one hour was done without proper consultation with her, as the parent, or a doctor. On 7 October 2011 the complainant requested more time before this reduction in hours was implemented but her request was rejected.

2.5 The complainant appealed the decision to the Department of Education & Skills.

2.6 The decision to reduce the hours also caused problems with the sanctioned transport arrangements. This was not resolved until 24 November 2011 and he was then able to return to school.

2.7 Shortly after this the complainant was away in Nigeria for 3 weeks and her son was in good care. However, when the school tried to make contact during this period she was criticised for being away and the respondent reported her absence to a social worker. As a lone parent the complainant contends this action by the respondent amounts to discrimination and/or victimisation.

2.8 On 29 February 2012 the Department of Education & Skills upheld the respondent’s decision. Around this time the son’s hours of attendance were increased to 2 hours per day.

2.9 The complainant submits that her son could have been reasonably accommodated within the specialised environment of the respondent school. His challenging behaviour is a result of his disability.

2.10 The respondent has provided an incident log but the complainant submits this shows a lack of care by the respondent in attending to the son’s needs while knowing of his potential behaviour.

2.11 The complainant submits that her claim on the grounds of family status arises because the respondent was aware that she was a lone parent and principal guardian of the son and it was incumbent on them to engage with her properly and in a time conscious manner to enable her to rearrange her schedule to meet her son’s care needs.

2.12 In September 2012 the complainant removed her son from the respondent school and enrolled him in another school.

3. Respondent’s Submission

3.1. The respondent submits that they had regular contact with the complainant during the 3½ years her son was in the school’s Autism Unit. There was also contact with the son’s clinical support team and planning meetings. Also there was extensive liaison with Bus Eireann regarding the son’s transport to school.

3.2. The respondent submits that no procedure exists within the educational system for a placement review of any child with special needs, nor a procedure to review the ability of a school to cater for the changing needs of any child.

3.3 The respondent submits that the son’s behaviour escalated to the level where the health and safety of the son, other children and teachers became a huge concern for them. They had no choice but to comply with their legal obligations under the Health & Safety Act. The incident log shows the on-going nature of the son’s behaviour which needed 2:1 staffing: that is two members of staff with the son at all times. In July 2011 in a Behaviour Support Plan Ms B recommended a reduction in the son’s School Day. The Behaviour Support Plan was reviewed during July and the first 3 weeks in September but the son’s violent behaviour continued. It became clear that 1 hour was the maximum length of time during which his educational programme could be effectively implemented as it would reduce demands on the son. It was always intended to increase the length of the son’s day in time. In October 2011 there was an Assessment Report.

3.3 On 29 November 2011 there was a review meeting as the son had not attended school since 14 October 2011. In January 2012 his attendance was increased to 2 hours following a further review.

3.4 The respondent submits that in June and July 2012 the son was making good progress and it was planned to further increase his school day in September 2012. The respondent sent a letter to the complainant on 10 July 2012....