Students with learning disabilities completing their educational cycle on a par with all other students to be reviewed

‘Students with learning disabilities completing their educational cycle on a par with all other students to be reviewed’.

Equal Status Acts 2000 – 2008

Disability – Access to Education

Successful decision

Mrs Kn (on behalf of her son Mr Kn), Mrs Kh (on behalf of her son Mr Kh), Mr Kr (on behalf of his son Mr Kr), Mr & Mrs Hy (on behalf of their daughter Miss Hy) -v- the Minister for Education & Science

The Equality Authority welcomes an important decision by the Equality Tribunal in a case involving students with learning disabilities being compelled to complete their second level education cycle by their 18th birthday. The four complainants two aged 14, one aged 17 and 18 were represented by the Equality Authority. The Equality Officer, finding in favour of the claimants, requires that they be treated the same as mainstream students who do not face such age limits when completing their Leaving Certificate. The Department of Education and Science has been ordered to pay compensation totalling €10,000 euros amongst three of the claimants and to review its policy accordingly.

‘This is an important case for students with disabilities. The policy that young students with a learning disability have to ‘skip a year’ or have their educational experience truncated, in order to complete their second level cycle by the time they reach 18 years, adds a further and unnecessary burden to students who are already overcoming learning challenges to fulfil their potential’ said Renee Dempsey, CEO, the Equality Authority.

‘We welcome the fact that the Equality Officer found that the policy which requires the complainants (as students who are pursing or intend to pursue an accredited course which is also available in mainstream secondary education) to leave the special school at the end of the year in which they reach their eighteen birthday, in circumstances where no such requirement is enforced upon students who attend mainstream secondary education, clearly amounts to less favourable treatment on the grounds of their disability within the meaning of the Equal Status Acts’ she added.

The complainants claimed that they had been discriminated against by the respondent on the grounds of their disability in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday. The complainants who suffer from learning disabilities attend a special needs school which caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Leaving Certificate Applied to students.

‘In the Kn case we were able to provide a direct comparator and instance the difference in treatment given to twins in our education system. The twin with a learning disability had to skip a year to complete his cycle whereas his sister who had no disability could complete her second level course at age 19 without restriction’ continued Ms Dempsey.

‘I endorse the initiative of the Department, following the hearing, to facilitate Ms Hy to complete her studies beyond her 18th birthday. The positive outcome of this case will bring welcome clarity to parents and will facilitate these students who work so hard in the pursuit of their studies’ concluded Ms Dempsey.

Ends

Background details:

The complainant, Mr Kn was 14 years of age when he commenced in the senior cycle and a decision was made for him to complete his Junior Certificate cycle in a two year period rather than a normal period of three years to ensure that he would complete his Leaving Certificate Applied programme in the year in which he reaches his 18th birthday.

Whereas the complainant Mr Kn had his education truncated to ensure that he would be able to complete his Leaving Certificate Programme by the year he reached his 18th birthday, his twin sister attending a mainstream school is permitted to complete her Leaving Certificate cycle without restriction. Both Mr Kn and his twin sister started primary school on the same day, however as a result of his special needs, the complainant was transferred to a special school whereas his sister continued to attend the mainstream school. She is due to complete her Leaving Certificate at the age of 19.

The complainant, Mr Kh, was 14 years at the date of the hearing and due to commence his secondary school education in September 2009. As a result of the policy, a decision was made that the complainant would be required to skip a year in the secondary school cycle in order to complete the cycle by the year in which he would be 18 years of age.

The complainant, Mr Kr, who was 17 years at the date of the hearing was forced to skip first year at second level cycle to ensure that he would be in a position to complete his Leaving Certificate Applied by the year in which he reaches his 18th birthday.

The complainant, Ms Hy, who was 18 years at the date of the hearing and in the first year of the Leaving Certificate Applied cycle and would be 19 years before she could sit the Leaving Certificate Applied examination. The complainant was under the very significant apprehension that she would not be allowed to return to complete the Leaving Certificate Applied programme due to the Department’s policy. (A number of months after the hearing in July 2009 a decision was made by the Department to allow Ms Hy to stay on to complete her Leaving Certificate Applied.)

The Department of Education & Science stated that special schools are classified by the Department as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday. Following their departure from the special school, the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years. They state that the policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications.

As part of the Department of Education & Science submission they stated that the Department is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education. The Department also claimed that it is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7 (1) of the Acts. The Equality Officer found that the types of services provided by the Department of Education and Science in the educational sphere are covered by the broad definition of service within the meaning of the Equal Status Acts.

Equality Officer’s Finding:

The Equality Officer found that the policy which requires the complainants (as students who are pursing or intend to pursue an accredited course which is also available in mainstream secondary education) to leave the special school at the end of the year in which they reach their eighteen birthday, in circumstances where no such requirement is enforced upon students who attend mainstream secondary education, clearly amounts to less favourable treatment on the grounds of their disability within the meaning of the Equal Status Acts.

In coming to this finding the Equality Officer stated “I am satisfied that this increased level of awareness of the policy and the uncertainty as to whether any extension to remain in the special school would be granted, if requested, resulted in decisions been taken which resulted in both Mr. Kn and Mr. Kr skipping a year of their secondary education in order to ensure that they will have completed their respective courses of education by the end of the year in which they reached the age of eighteen years and thereby comply with the requirements of the policy. In the case of Mr. Kh, it has also resulted in a decision that it will be necessary for him to move from sixth class in the primary cycle directly into second year of his secondary education in order to ensure that he will have completed his accredited course of education by the end of the year in which he reaches the age of eighteen years.” In relation to Ms Hy, the Equality Officer stated that “I am satisfied that the policy in question has resulted in a great deal of stress and anxiety to her in terms of the uncertainty as to whether she will be allowed to complete this programme of education in the special school which she presently attends.”

The Equality Officer found that the complainants have established a prima facie case of discrimination on the disability ground in terms of the requirement that is imposed upon them by the respondent to leave the special school at the end of the year in which they have reached their eighteenth birthday and that the respondent has failed to rebut the inference of discrimination.

Award:

The Equality Officer ordered that the respondent pay both Mr Kn and Mr Kr the sum of €4,000 and to pay Miss Hy the sum of €2,000 for the effects of the discriminatory treatment in this case. In the case of Mr Kh the Equality officer did not considered an order for compensation to be appropriate. The Equality Officer also directed the respondent to review the policy that requires students who are attending special schools to leave the school at the end of the year in which they reach their eighteenth birthday with a view to ensuring that students in special schools who are pursing courses leading to accreditation (such as the Junior Certificate/Leaving Certificate applied) be afforded the same duration of time to complete these courses as their counterparts in mainstream education.

For a full account of the case check www.equalitytribunal.ie

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