The Irish Human Rights and Equality Commission (“The Commission”) welcomes today’s Supreme Court judgment in the case Kim Cahill v. Minister for Education and Science. The test case focused on the nature of the duties owed by the Minister for Education towards students with disabilities, and in particular the scope of the duty to make reasonable accommodations for persons with disabilities.
The purpose of the reasonable accommodations duty under the Equal Status Acts 2000-2015 is to level the playing field and avoid as far as possible, by reasonable means, the disadvantage which a student with a disability experiences because of their disability. The Commission’s legal team on behalf of Ms Cahill argued that equality legislation should be interpreted broadly so as to promote maximum accessibility for persons with disabilities.
The Supreme Court has now clarified that the duty to provide reasonable accommodation requires a service provider – including the Minister for Education – to take positive steps to ensure that students with a disability can fully participate in education and other benefits, facilities and services provided for students.
Mr Justice MacMenamin noted that “the subject matter of the Act requires the courts to deal with the issue of interpretation here as having a high status, because of the very fact that what is in question is the right of everyone to be treated equally as human persons and not to be subject to these forms of discrimination.” The court said the legal provisions in question “should be given a broad and generous interpretation.” It noted that these were “a series of provisions designed to ensure equal opportunity to all individuals whether or not they have a disability.”
The Commission and its predecessor body supported Kim Cahill in her claim, by providing legal representation throughout this longstanding public interest challenge whose importance was acknowledged by the Supreme Court in today’s judgment. The Commission’s legal powers, as set out in the Irish Human Rights and Equality Commission Act 2014 allows for legal assistance (including legal representation) to be provided in certain circumstances to someone who wishes to bring a matter of equality or human rights before the Workplace Relations Commission or the courts.
Kim Cahill, who sat her Leaving Certificate in 2001 had obtained an exemption solely on the assessment of spelling and grammar elements of language subjects due to her dyslexia. However, when her Leaving Certificate was issued it carried an explanatory note stating that certain parts of the exam had not been assessed, and revealing her disability. She describes this as one of the most embarrassing moments of her life, and perceived it both as discriminatory ‘less favourable treatment’, and a failure to make reasonable accommodations.
Mr Justice O’Donnell said: “In common with I think every person who has dealt with this case, I sympathise with Ms Cahill for that unpleasant experience. I respect both her determination in pursuing her studies and career, and the tenacity with which her cause was urged by her parents.”
Kim Cahill explained in evidence that her Leaving Certificate as an official document would reveal her disability to future employers against her wishes, and potentially place her at risk of further discrimination. She had no choice about the nature of the adjustments provided and was refused the option of extra time, a reader or the provision of a quiet room, accommodations which would not have been highlighted on her Leaving Certificate had they been provided. By contrast, the Supreme Court heard that the bonus marks granted to those who sit the Leaving Certificate through Irish are not revealed in the same way on a student’s Leaving Certificate.
The Equality Tribunal upheld Ms Cahill’s original complaint and directed that the Minister pay €6,000 in light of the distress caused and issue a new Leaving Certificate without the notation, which revealed Ms Cahill’s dyslexia and undermined her results. However, this decision was subsequently appealed through the Circuit Court and the High Court to today’s Supreme Court ruling.
Kim Cahill has continued to pursue this important public interest challenge, bearing in mind that the practice of the Department has not changed since her original complaint. The court recognised the great effort involved in bringing forward what it described as “these fundamentally important issues” and said “insofar as the appeal has had the effect of clarifying the law it must represent a vindication, although perhaps a limited one, for the appellant.”
The Commission’s legal team on behalf of Kim Cahill advanced the test case on key legal issues which have been resolved in her favour in today’s judgment.
- Whether the Minister was exempt from the obligation to provide reasonable accommodations as had been found in the Circuit and High Court. This finding has now been unambiguously overturned by today’s judgment with the effect that it is now beyond dispute that the Minister for Education is subject to the requirement to provide reasonable accommodations in the delivery of educational services under the Education Act 1998. Had the decisions of the Circuit and High Court not been overturned, the failure of the Minister to provide basic services to persons with disabilities such as a failure to provide the basic equipment necessary for a child to access learning such as hearing aids or braille machines could not have been challenged as a breach of a duty to provide reasonable accommodations under the Equal Status Acts. The significance of today’s decision in clarifying the rights of students with disabilities to receive accommodations within the education system cannot be overstated.
- The interpretation of the term ‘reasonable’ adopted by the lower courts, was not in keeping with the remedial social purpose of the Equal Status Acts and radically limited the duty to provide accommodations. Today, the court unanimously agreed that there had been an error of law and the judgment opens up the way for other students with disabilities in Ms Cahill’s position to rely on the Equal Status Acts in enforcing a right to accommodations in the provision of educational services. Notwithstanding that the Supreme Court agreed that the wrong legal test had been identified in the lower courts, the Court found that on the evidence in this case, there had been no breach of the duty properly construed insofar as the provision of the exemption with the notation was concerned.
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“The Commission welcomes the court’s clarification of these fundamentally important issues of equality law, and its emphatic ruling that the Minister for Education continues to owe duties to make reasonable accommodations for students with disabilities, notwithstanding its separate obligations to provide support services under the Education Act 1998. It notes the fact the court welcomed further opportunities to clarify what is complex law in the future for the benefit of persons with a disability.
“The rights of persons with disabilities to be provided with an equal playing field in their studies and exams, work lives and personal lives remain to be fully vindicated.
“It takes resilience and determination to challenge discrimination, but these kinds of challenges, such as that taken by Kim Cahill, are vital to inspiring change, and building a more equal society.”
Kim Cahill stated:
“I welcome the Supreme Court’s clarification of these complex issues of discrimination law and its acknowledgement of the importance of this case and the great commitment involved in bringing it.
“This is still the most embarrassing thing to have happened to me, particularly as a teenager who was meant to be celebrating my achievements alongside my peers.
“Today’s judgment has been a long time coming and I am very appreciative of the support the Irish Human Rights and Equality Commission legal team has provided to me over the years. This is not just about one Leaving Cert but the treatment and experience of all students with disabilities sitting their Leaving Cert.
“My life, and the world in general, has moved on a lot in 16 years. I find it sad that the state exam system has not. I hope that the Minister takes forwards the points made by the Court.”
ENDS/
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Notes to editor:
The full legal submission to the Supreme Court made on behalf of Kim Cahill by the Irish Human Rights and Equality Commission is available at the following link:
Legal Assistance Provided by the Commission
Under section 40 IHREC Act 2014, the Irish Human Rights and Equality Commission may provide legal assistance to individuals in equality or human rights cases where certain criteria are met. Disability rights are one of the Commission’s core areas of focus for strategic litigation in 2017.
Reasonable Accommodation
Article 2 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) defines reasonable accommodations as: ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.’”
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission was set up on 1 November 2014 as an independent public body to protect and promote human rights and equality in Ireland and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Act 2014 sets out the functions of the Commission, i.e. to ensure that:
- there is respect for, and protection of, everyone’s human rights
- there is respect for the dignity and worth of each person;
- a person’s ability to achieve their potential is not limited by prejudice, discrimination, or neglect;
- everyone has a fair and equal opportunity to take part in the economic, political, social or cultural life of the State; and
- people respect each other, respect equality and human rights, and understand the value of diversity within society
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.