A primary school has been ordered to pay €12,000 compensation to a girl with Down syndrome after she had to spend most of her school day in a foyer outside the classroom away from her classmates.

At the Workplace Relations Commission (WRC), Adjudicator Thomas O'Driscoll said that the "unprecedented actions" of the school "reinforced the idea to the other children, and alarmingly for her sister that it might be normal to exclude children with special needs".

"This should never have been the case," he said.

Mr O'Driscoll found that the school discriminated against the girl on the grounds of disability under the Equal Status Act.

He said that he was satisfied that the redress should be at the upper end of the spectrum and that the school had treated the girl less favourably, by not affording her reasonable accommodation under the Equal Status Act.

The girl started in junior infants in September 2016 and was taken out of the school by her parents in April 2019 when she was in first class.

Mr O'Driscoll said: "This is an unfortunate case and I accept in the main that the school was not resourced as fully as it should have been, but nevertheless I found that there were aggravating factors."

He said he was satisfied from the evidence given that the reason for the decision of the parents to remove their daughter from the school was because of the exclusion of the child from full social and academic activity.

Mr O'Driscoll said that it was unacceptable that the school failed to consult with the girl's mother over her spending most of her day in a 'Learning Space' in the school's foyer.

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The girl's mother told the WRC that there was no communication from the school about the fact that her daughter was spending most of her school day outside of the classroom with her Special Needs Assistant (SNA).

The mother said she became concerned when her other daughter, who was in the class, told her that her sister was not in the classroom.

Asked why she brought the discrimination proceedings on behalf of her daughter, the mother said it was the last resort and it was very upsetting to the family that her daughter was not included in the class environment.

An Education Officer with Down Syndrome Ireland (DSI) stated that this was the first time that a school had refused an offer of support from DSI.

She said she had never come across a situation where a workstation for a child was located outside the classroom and that time in the classroom was negligible for the girl.

SNA did most of the teaching

In his findings, Mr O’Driscoll stated that he found it quite concerning that the girl was timetabled to be outside of the classroom for most of her learning day and that the learning, in essence, had become the prime responsibility of the SNA rather than the class teacher.

"Clear evidence was given that the role of the SNA was to look after the care needs of the complainant as well as to reinforce the learning picked up at the classroom," he said.

Mr O’Driscoll said the reality was that the girl had very little time allocated for learning and had neither access to her teacher, nor peer models.

He said undoubtedly the girl’s behaviour was challenging for the staff, as they described it, but instead of seeing the "challenge" as how best to deliver and meet the educational needs of all in their charge, they attributed the problem to her.

Mr O'Driscoll added: "Their solution was to remove her from the situation. This defensiveness was manifested further in the refusal to accept a more than reasonable offer of specialised support from Down Syndrome Ireland."

He said he was satisfied that the girl could have been reasonably accommodated by a workstation in the classroom and only to be withdrawn when she was tired or significantly disruptive.

He said: "This measure would have been cost neutral."

Along with finding that the school discriminated against the girl on the grounds of disability, Mr O'Driscoll also found that the school breached its obligation to her by curtailing her opportunity to fully access and participate in education.

Girl was accommodated in 'learning space'

The school argued that it provided the best educational service available to the girl in light of the resources that were available to it.

The school principal, who has since retired, told the hearing that the 'learning space’, could not be described as a corridor because the door in the vicinity is no longer used and he took Maths class in the area in the past and described it as very bright and very comfortable.

He said he felt that it was appropriate for the girl to be in the 'learning space' because she could be very vocal and that that this space allowed her scope to move around, and it would improve her gross motor skills.

The principal said he accepted that the idea of the 'Learning Space' was acted upon without consultation with the girl's parents and accepted that no student, other than the girl, had a timetable to be there.

He took no external advice from DSI because he believed both he and the teaching staff were professionally competent to deal with the needs of the girl.

When put to the principal that the SNA was not supposed to teach the girl, he said that the primary purpose of the SNA was to cater for the care needs of a pupil, but that in reality SNA's go way beyond what was written down in their job specification.

He accepted that the class teacher has the primary role of teaching.

When it was put to the principal to explain evidence that showed that the girl was spending only 45 minutes in class and two hours 45 minutes with the SNA, he reiterated that they were the professionals on site.

He said that he believed that the allocation of time was worked out in line with the needs of the girl as they saw it.