Introduction

The recent case of Ms A (on behalf of her son) v The Board of Management of a National School provides guidance on the area of disability and reasonable accommodation in the context of schools.

Facts

The complainant’s son (the “Student”) attended the autism unit in the school.

Issues began to arise regarding the Student’s behaviour and the school had serious concerns regarding the health and safety of the Student, other students and staff. This behaviour required the use of a higher staffing ratio for the Student than that allocated to him which caused issues in terms of resources for the school. A Behaviour Support Plan was put in place.

The Behaviour Support Plan was reviewed on a number of occasions with no improvement in behaviour. The Board of Management (“BoM”) felt that one hour per day was the maximum length of time during which the Student’s educational programme could be effectively implemented, particularly due to its concerns about health and safety. The complainant was informed of the BoM’s decision.

Due to transport issues caused by the changed hours, the Student was not able to attend school for a number of weeks. Soon after the Student returned to school, the complainant went abroad and made arrangements for her son’s care. The school made contact with a social worker regarding this.

The Department of Education and Skills (the “DES”) rejected the complainant’s appeal of the decision to reduce the hours.

Following a review, the Student’s attendance was increased to two hours per day. The school submitted that this was always the intention and that the Student was making good progress and it was planned to further increase his hours but the Student was enrolled in another school before this could take place.

The complainant took a case to the Equality Tribunal alleging that the school had discriminated against the Student on the grounds of disability and failed to provide him with reasonable accommodation contrary to the Equal Status Acts 2000 to 2011 (the “Equal Status Acts”).

The complainant also alleged that she was discriminated against both by association and on the family status ground, ie as a single mother.

Decision

The Equality Officer (“EO”) accepted that the school had made “great efforts” to accommodate the Student within the autism unit and to implement the Behaviour  Support Plan. The EO found that the decision to reduce the Student’s hours was based on his disruptive behaviour and the fact that the BoM considered his behaviour was having a seriously detrimental effect on the provision of its services to other students. The Equal Status Acts expressly state that a school does not discriminate where compliance with the Acts regarding a student with a disability would, by virtue of the disability, make impossible or have a seriously detrimental effect on the provision of its services to other students.

In light of the fact that the Student required additional SNA support over and above that allocated to him and at times required the sole use of a room, the EO accepted that the Student was provided with accommodation beyond that provided to any other student. Although accepting that the reduction in hours was disruptive to the complainant, the EO did not find that this was discriminatory towards her on the grounds of family status or by association with her son’s disability. Furthermore, the EO found that the school only contacted a social worker out of genuine concern.

Conclusion

This is a welcome decision as schools continue to grapple with the ever increasing issue of managing challenging behaviour. It confirms that where a disability results in behavioural issues which have a seriously detrimental effect on the provision of services to other students and the health and safety of others, the action taken to deal with this is not necessarily discriminatory. It also confirms that the obligation to reasonably accommodate a student with a disability has limits.

However, schools should bear in mind that the National Educational Welfare Board (“NEWB”) Guidelines state that the exclusion of a student for part of the school day,  as a sanction, is a suspension. Thus, where a student who has a disability is engaging in challenging behaviour, it is particularly important to ensure that the school first engages in the appropriate consultations and interventions eg engagement with the parents, the National Educational Psychological Service (“NEPS”), the Special Educational Needs Organiser (“SENO”), the Education Welfare Officer (“EWO”) and other agencies as appropriate. If a school engages in these types of consultation and interventions, it should be able to show that it has provided reasonable accommodation and that a reduction in the school day was not a sanction. If notwithstanding the interventions the behaviour deteriorates, the matter should be dealt with under the school’s code of behaviour. If ultimately the student is suspended or expelled the parents may appeal the expulsion/suspension1 to the Secretary General of the DES under S.29 of the Education Act.

In terms of dealing with challenging behaviour in general, a school should consider whether specialist training is needed for staff and where staff are expected to use physical restraint etc it is essential that there is a policy and specific training in place. A school should also ensure that its Code of Behaviour is in conformity with the NEWB Guidelines as this is a legal requirement, that the code makes provision for the appropriate interventions and that it also makes provision for children with special ducational needs who engage in challenging behaviour. In individual cases, a school should ensure that it adheres to the Code of Behaviour and that appropriate records are kept.