The Department of Education has been ordered to pay €5,000 to a legally blind student who was denied access to a summer tuition programme during the Covid-19 pandemic.
The student, Cormac Flynn, had already been left without his usual in-school supports for the last few months of the school year after lockdown measures were imposed to control the spread of the virus in March 2020, the Workplace Relations Commission (WRC) was told.
His mother was told he was not eligible for home tuition under the July provision programme that year, even though blind and visually impaired children at primary school were, the tribunal heard.
“Once you fall behind, it’s very difficult to catch up,” Mr Flynn said in evidence on his complaint under the Equal Status Act, which was partially upheld in a decision published on Monday.
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Mr Flynn, who was represented by barrister James Kane , instructed by Sinéad Lucey of the Free Legal Advice Centres (FLAC), was in his Junior Cert year when lockdown was imposed and sat his Leaving Cert in June 2023.
It was submitted that Mr Flynn suffered from a degenerative eye condition leaving him with less than 10 per cent sight, requiring magnification for close vision work.
Mr Flynn’s evidence was that his special needs assistant couldn’t come to his home during the pandemic closures and that one-to-one support only came “the odd time”. He said his laptop’s magnification function didn’t work with Microsoft Teams, the app being used for remote tuition, and that his class materials “were not accessible”.
While he had the benefit of a CCTV system at school, he could not zoom in on videos being presented by his teachers remotely.
Mr Flynn’s mother, Eithne Walsh, said she had applied for the summer provision scheme in June 2020 thinking “someone would understand Cormac’s needs”.
She said in evidence that her son had been considering a career in physiotherapy at the time and needed maths and science. She said her son “had to drop honours maths” after being refused access to the summer provision scheme.
“No one was thinking,” she said, calling it “casual discrimination”.
There had been a subsequent offer of 40 hours tuition in October 2020, when Mr Flynn had progressed to transition year, Ms Walsh said. By then, she said, they couldn’t find a teacher “for love nor money”.
Mr Kane submitted that the Minister for Education decided to close the schools “without ensuring that the educational needs of the complainant were provided for”. The State, however, contended that the responsibility for providing the supports to Mr Flynn rested with the individual school.
The State’s position on the summer provision scheme aspect of the complaint was that the decision to expand the scheme to “some categories of children and not others” was based partly on funding, which was “limited”. It was submitted that as this was a political decision regarding “the allocation of finite resources”, the WRC had no jurisdiction to consider it under the equality legislation.
Adjudicator Catherine Byrne noted that State spending on the programme and the number of children enrolled in it had expanded during the pandemic, with tuition being offered on the basis of individual needs rather than specific disabilities.
“It is my view that in the summer of 2020, it was open to the department to include the complainant in the summer provision scheme, based on a simple assessment of his needs,” Ms Byrne wrote.
Although she found that Mr Flynn had not also been provided with reasonable accommodation between March and June 2020, she found that this had been the responsibility of his school rather than the Department of Education, which was “not the correct respondent”, she wrote. She said that aspect of the claim “falls away”.
However, Ms Byrne upheld Mr Flynn’s complaint in relation to the summer provision scheme and directed the Department of Education to pay him €5,000 in compensation.
Commenting on the tribunal’s decision, Ms Lucey of FLAC said it was “a testament to the bravery and resilience of our client and his mother”.
She welcomed the tribunal’s rejection of the State’s argument that it could not hear a complaint about Government policy decisions or the allocation of resources and the expansion of the summer provision scheme to cover blind secondary school students.
“We hope that a proper application of anti-discrimination law and the public sector equality and human rights duty will inform all future policy developments in this area,” Ms Lucey added.
Mr Flynn’s mother said the impact of the refusal on her son had been “avoidable” and the WRC’s decision was “an extremely important recognition of his rights”.
“We hope that the WRC’s ruling will bring about improvements in access to additional supports for people with disabilities in education,” she said.
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