Supreme Court dismisses appeal regarding Equal Status Act 2000 procedures for disabled students. Appeal dismissed due to agreement with lower court judgment.

SUPREME COURT

Appeal No. 246/2010

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

Between/

Kim Cahill

Appellant

AND

The Minister for Education and Science

Respondent

Judgment of Mr. Justice O’Donnell delivered the 24th of May, 2017.

1 I agree with all my colleagues that the appeal in this case must be dismissed. My reasons for doing so are that I am in full

agreement with the judgment of Laffoy J. In the concurring judgment MacMenamin J. delivers, he canvasses a number of interesting

issues, admittedly obiter, as to law, and at some remove from the factual controversy which was the subject matter of these

proceedings. He considers that a potential case might have been made as to the procedures followed by the Department in this case

and accordingly offers some views on the interpretation of sections 4 and 5(2)(h) of the Equal Status Act 2000, for the purpose of

developing and clarifying the law for the future. Since I have reservations about the developments suggested and indeed as to

whether clarity would ensue, I set out my own necessarily tentative views on what is suggested.

2 The decision of this Court in Stokes v. Christian Brothers Schools [2015] I.E.S.C 13, means that the decision of the High Court on

an appeal on a point of law from the decision of the Circuit Court, itself a full appeal from the decision of the Equality Officer under

the 2000 Act, may yet be appealed to the Supreme Court. In the aftermath the amendment to Article 34 of the Constitution, such an

appeal will now lie to the Court of Appeal, with the possibility of appeal to this Court pursuant to Article 34.5.3º if a point of law of

general public importance is disclosed, or it is otherwise in the interests of justice that such an appeal should be brought. This is a

very elongated and expensive chain of appellate review which is somewhat at odds with the subject matter of the Act. The Equal

Status Act of 2000, is an ambitious piece of social legislation targeted at a range of discriminations which may occur in fields other

than employment. I do not doubt the real injury and damage that can be caused by such discrimination, or indeed the desirability of

having an authoritative determination that such discrimination has occurred, but it is surely unsatisfactory if that requires the

considerable time and expense (and risk of costs) that occurred in this case. What is required, is cheap, expeditious and sensitive

enforcement at an administrative level, together with the possibility of binding review at an appellate level when important issues of

law arise. The Act is on any view highly complex. It involves some difficult concepts, and delphic phraseology and it is inevitable that

guidance will be required from the Superior Courts. However some steps from the appellate chain which currently exist could be

removed without loss, which might also mean that the issue could be finally determined, within some reasonable timescale from the

events in question. However, one other consequence of this very extended chain of appeal is that it is unlikely that questions of

interpretation will reach this Court for some time. Accordingly, I think it is necessary to offer some views on the matters thoughtfully

canvassed by MacMenamin J., particularly since I have reservations about the view expressed, and the indeed the utility of the

exercise.

3 Reduced to the minimum, as I understand it, MacMenamin J. agrees that on the issues raised in this appeal, the appellant’s appeal

(supported and in effect, run by the Equality Authority) must fail. He considers that the practice of annotating the Leaving Certificate

in a case where a waiver has been granted on core aspects of the examination is neither a discrimination on grounds of disability

prohibited by sections 3 and 5 of the Act, nor a breach of the extended concept of discrimination in the case of disability, which is

prohibited by s.4. However, after a review of the evidence he concludes there was potential for a different or broader case to be

initiated pursuant to s.4 of the Act. If so a “very arguable case might have been made under s.4(1) of the Act, on the basis that

procedurally the Department had failed to all that was reasonable”. However, it was also strongly arguable that any procedural

“missteps” would have been defensible pursuant to s.5(2)(h) of the Act because the Department was treating the appellant

differently by providing a service for the principal purposes of which was promoting a bona fide purpose and in a bona fide manner the

special interests of the person in that category. Accordingly any such claim, if made, might well have failed. In offering these

necessarily tentative views, observations are also made as to the approach to interpretation of the Act.

4 These observations represent a further turn in a case which has already had a number of detours. To explain my reluctance to

follow the interesting path which MacMenamin J. suggests, it is necessary to set out, in the briefest detail, the development of the

proceedings.

5 This case is focused upon events which occurred many years ago, and in particular on the 15th August, 2001, when Kim Cahill

obtained her Leaving Certificate results and experienced the upset which she described in her evidence in the Circuit Court. 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. In such a

situation parents are not required to be concerned with broader questions of educational policy or equity to other students: they are

entitled to press their own child’s case. Their behaviour deserves understanding, and if necessary indulgence. In these proceedings

the only question is the legality of the actions of the Department of Education. In that respect however, I think it is sufficient to say

that if Ms. Cahill attended school on the 15th August, 2001, unaware of the fact that she had been granted a waiver for the grammar

and spelling aspects of three examinations, and that her formal Leaving Certificate would be annotated, then, at least, that is

something which cannot be laid at the door of the Department, or indeed redressed in these proceedings. The issue with which this

case is concerned is not so much the events of that day, but rather the legality of the provision of the notation with the waiver.

6 In hindsight, it is perhaps possible to see that this was by no means an easy issue to deal with when it arose. The Leaving

Certificate 2001, was the first examination in which the departmental guidelines were in operation. Furthermore, the Equal Status Act

of 2000, was only a year in operation. On any view, the question of the waiver and the accompanying notation were far from the

clearest case of discrimination whether on grounds of disability or otherwise. In addition to the question of the interests of a person

suffering from a disability, in this case mild dyslexia, the issue plainly also raised difficult questions of educational equity and the

integrity of a nationwide examination system which is a key component of access to third level education, and indeed employment.

What made this case more difficult again, was that what was in issue here was not a question of access to the service being

provided on grounds of disability where the ability or disability can be seen as an access skill. Rather, it concerned an examination in

which three subjects sought to assess in certain respects, reading, spelling and grammar ability. This is something which, in the

language of the expert evidence adduced in the Circuit Court, was a target skill rather than an access skill. The same requirement

which may pose a difficulty for a person with a disability may accordingly be discriminatory if the ability/disability in question is an

access skill issue, but not necessarily if it is a bona fide target skill being tested, and measured.

7 The Equality Officer approached the novel and difficult issue in this case in an admirably structured way. She first identified the

question, helpfully in my view, as a bundling issue: namely, the fact that the waiver (which was sought) could not be obtained

without the notation (which was not). This was not simply issue raised in a complaint drafted by lay people in ODEI 5 and

encountering these concepts for the first time: it was rather the specific complaint made in the formal complaint ODEI 2 which was

completed for the appellant by the Equality Authority. That is not surprising; the complaint here had always been that the notation

stigmatised persons suffering from dyslexia, and who had received a waiver. That issue has always been the central issue in this

case.

8 The Equality Officer concluded that the practice of notation did not constitute a breach of s.4 of the Act. This is because she did

not consider that it made it either impossible or unduly difficult to access the service being offered, namely the Leaving Certificate.

She considered however that prima facie the practice constituted a differentiation based on grounds of disability prohibited under

s.3(2)(g) and s.5 of the Act, and that accordingly the onus shifted to the Department of Education to demonstrate that such

differentiation was not discriminatory but rather pursued a legitimate non-discriminatory aim. The Equality Officer considered that

sufficient evidence had not been adduced to rebut this prima facie case. She did not consider that such discrimination was saved by

s.5(2)(h) of the Act, nor insofar as it was relevant, did she consider that s.4(5) of the Act could permit the practice. On this basis

the Equality Officer awarded compensation of €6,000 and directed the Department to issue a fresh Leaving Certificate free of the

notation and to formally investigate the feasibility of creating and implementing a system of individually suited accommodation or

group of accommodations to meet the needs of each particular student. Furthermore, the current range of accommodation already

available was to be continued. Giving the finding of discrimination in relation to a practice adopted after expert review, and the

extensive directions given with ramifications for the examination system, it is perhaps unsurprising that the Department appealed to

the Circuit Court.

Observations on the Equality Officer’s Determination.

9 With the clarity of hindsight, it is possible to take issue with the conclusion of discrimination arrived by the Equality Officer. In the

first place, once the question of the Irish bonus receded from this case, as it did, then it is difficult to identify a precise comparator

by reference to whom it can be said the appellant was being treated less favourably. Everyone who received a waiver from any

aspect of the exam also received the notation. While it was true that a person who received the notation was being treated

differently from the many students who did not, it could not be said that they were in precisely the same situation, because the

candidate whose Leaving Certificate was not annotated, had not received any waiver. The question of even prima facie discrimination

was difficult at a minimum. On the other side of the equation, there was already substantial evidence in the shape of an independent

and expert report to the Minister, which provided an educational, and non-discriminatory, justification for the practice of notation. It

is apparent therefore, that at a minimum the Equality Officer’s decision was a strict and perhaps demanding one. However, in any

event it is not necessary to consider if it was justifiable on the evidence then available, since the evidence changed significantly in

the Circuit Court, and the new evidence comprehensively supplied any possible defect. In my view however, even if the conclusion of

discrimination was questionable, the Equality Officer dealt with the difficult case, the complex legislation and the comprehensive and

vigorous arguments in a well structured way.

Appeal to the Circuit Court

10 It is difficult in my view at least to overstate the comprehensive way in which the factual issue was addressed and resolved in the

Circuit Court. The Department of Education sought to address the evidential deficit determined by the Equality Officer by producing

an impressive array of expert witnesses from this jurisdiction, Great Britain, Northern Ireland, and the USA. That evidence, which was

not seriously challenged or contradicted, established two matters: first that the approach of the Department of Education, in

compliance with the advice of the Expert Group to provide that when an aspect of an examination was being waived and not

examined upon, that that matter should be the subject of notation, represented not merely a permissible approach, but in many ways

the state of the art, at least at that time, in educational thinking; second, that the appellant would not have been entitled to or

received any accommodation in any other comparable regime. The Circuit Court judge accepted this evidence, which effectively

determined the case. Indeed this might have been an end to the matter, but the judge went further, and in addition found that

insomuch as s.4 was applicable, s.4(5) was defence to any claim, and similarly s.5(2)(h) provided a defence to any contention of

discrimination, and finally that reasonableness, and the question of less favourable treatment, meant that there should be some

reasoned determination and that the treatment should not be the result of caprice, unreasonableness, bad faith, or direct or indirect

prejudice. This language has been aptly described as a quasi judicial review test since it approximates to a test for rationality of

decision making. While the evidential matters were almost beyond contest, particularly in an appeal on a point of law, these latter

conclusions would have much greater significance beyond the resolution of this case, since they addressed matters of general

interpretation of the Act. Whether for that reason or otherwise, the matter was appealed on a point of law to the High Court, which

in the event endorsed the conclusion of the Circuit Court. A further appeal was then brought to this Court.

11 In the event I understand that it is agreed by this Court, that the bundling of the notation with the waiver does not breach s.3 or

s.4 of the Act. Furthermore, it is agreed that neither the s.3 prohibition of unfavourable treatment, nor the s.4 requirement to do all

that is reasonable so that it is not impossible or unduly difficult to access a service for a person under a disability, is to be judged by

the judicial review standard of rationality or prejudice, whim or caprice. Furthermore, it is agreed that s.4(5) does not apply to provide

a special defence in the context of any educational issue. All of this will I hope bring some clarity to the law in important respects. If

this had been the conclusion at either Equality Officer or Circuit Court level, it is conceivable the issue would have gone no further.

12 For my part, I would hesitate to go further and consider whether, if a procedural case could be established, that would potentially

breach the s.4 obligation, but nevertheless be protected by s.5(2)(h). Self-evidently, such a case was never made, as to fact or law

in either of the two full oral hearings before the Equality Officer or the Circuit Court, and was not canvassed on appeal to the High

Court. Accordingly, evidence was not addressed to the issue and as importantly no opportunity was given to challenge evidence,

explain it or if necessary contradict any such case. It follows therefore that no findings have been made on the matter by any primary

fact finder. It is not normally open to this Court to seek to review transcripts of evidence addressed to a different issue and then

make its own findings or conclusions, even tentatively expressed. Furthermore, the fact that no case was made of procedural misstep

or mishap, is entirely understandable. It is hard to see how that would particularly benefit the appellant, if it left intact, as it must,

the finding that it was permissible to note the Leaving Certificate, once the waiver had been granted. Finally, and in any event, if it

was indeed possible to draw such inferences from the evidence which had not been directed to this issue, I would for my own part be

slow to impute motives to the Department, to suggest official confusion within the Department, or still less to criticise the Department

for adherence to the circular. On that latter point, it is easy to imagine an opposite criticism being made had the Department

departed from the circular, itself produced following expert advice. In any event, no such complaint was made. The criticism by the

appellant and the Equality Authority was directed to the circular itself, and the policy of bundling notation with the waiver rather,

than the manner of compliance with that policy. Finally and in any event, I also think that it would be at least as plausible to interpret

the evidence as civil servants following expert advice, and in this case, going to some considerable lengths both to permit

representations and appeals outside the time limits established, and to deal with them at sometimes very short notice. I also consider

that the evident difficulties with this approach to the evidence are compounded rather than reduced by expressing any views on such

matters even in a guarded way. Whether the conclusions are tentative or trenchant, the institution and the individuals concerned

have not had the opportunity of responding.

13 Accordingly I regard this approach to the facts of the case which were never in issue, as an inherently unsatisfactory basis for a

consideration of important issues of law. This leads to the further difficulty, that these matters were not the subject of legal

argument in this or any other court or tribunal. This is particularly significant since the tentative conclusions suggested by

MacMenamin J., would point to a probable prima facie breach of s.4, and a possible defence under s.5(2)(h). These are conclusions

which run almost directly counter to the reasoning of the Equality Officer and provide yet a further novel interpretation of the Act,

which is not conducive to clarity or certainty. Unless I was convinced that the interpretation proposed was clear beyond argument, I

would be slow to support it whether expressly, or by silence.

14 I am not so convinced. Since we are deep into the realms of speculation and hypothesis, I believe it serves no purpose in debating

the matters at length, and outside the context of a specific factual and legal dispute. Accordingly I would make some limited

observations only.

15 At this stage, and acknowledging that it is a matter which would require detailed argument, I confess that I am doubtful that

either s.4 or s.5(2)(h) can be read as suggested. I do not think that the interpretation is in truth assisted by seeking points of

reference in the Constitution. In any event, I would not consider that the test set out in s.4 of “all that is reasonable” is analogous to

the Article 40.3.1º language of “as far as practicable”. One test enquires whether something is feasible: the other whether even if

feasible, it is reasonable. Furthermore, I do not think that any purposive reading of the legislation can, or should, convert the test of

all that is reasonable to accommodate the needs of a person with a disability without which it would be impossible or unduly difficult

to avail of the service, into a more open-ended obligation to go the extra mile. If however, such an obligation can be deduced, and

was possibly breached in this case by the procedures followed (and I am agnostic about each step in this reasoning) then, again, I

would prefer the approach of the Equality Officer to the interpretation of s.5(2)(h). While I acknowledge that this is a difficult

section, I do not think it provides immunity from scrutiny for anything done for the ostensible purpose of promoting the special

interest of a group or person under a disability. Instead, I would be inclined to read s.5(2)(h) as limited to exempting provisions which

would otherwise be considered discriminatory because they favour a group or person. Obviously any question of the practical

application of such a section would be fraught with significant interpretive issues, and indeed questions of constitutional consistency.

But the focus of this (hypothetical) case, is not the measures adopted to provide for the interests of a particular group (in this case

the waiver of a portion of the examination in favour of those suffering a learning disability), but the procedures whereby this measure

was made available. If such procedures did truly fall short of all that is reasonable without which it is impossible or unduly difficult to

access a service and for that reason fall foul of s.4, then s.5(2)(h) would not, in my view, avail the Department. However, these

considerations reside very much in the realm of conjecture, and must await detailed consideration in an appropriate case. For the

moment I prefer to rest my decision in this case on my agreement with the judgment delivered by Ms. Justice Laffoy.