Barrister Reviews Recent Irish Legislation
By Henry Murdoch
The recent decision of the Irish Supreme Court (Jamie Sinnott case) has focussed attention on the rights of persons with disabilities, and on how robust these rights are and whether they exist as a right enforceable by the person or whether they are discretionary at the will of an institution. In this article, barrister Henry Murdoch reviews recent legislation and judicial decisions in the area.
There has been a raft of important legislation recently which could have a significant impact on persons with disabilities and their rights. For example, as regards their having direct access to mainstream services; having access to support to obtain their entitlements; having access to buildings, airports and public transport; having access to education and to qualifications; having access to information; and as regards their right not to be discriminated against in relation to employment and in relation to goods and services.
Access to Education
Under the Irish Constitution, the State recognises that the primary and natural educator of the child is the family. The State however has the duty to provide for free primary education.
Up to 1996, it was not clear how far this duty extended eg did it apply and to what extent did it apply to persons with a disability? In 1996, the High Court accepted that it has been established, on a world-wide basis, that children suffering from profound mental handicap would benefit from formal education; accordingly there is a constitutional obligation upon the State to provide for free primary education for profoundly handicapped children in as full and positive a manner as it had done for other members of the community: O'Donoghue v Minister for Health  2 IR 20.
In a subsequent case the High Court held that where a child has special educational needs which cannot be provided by the parents, the State is obliged by the Constitution to cater for the special needs: Comerford v Minister for Education  2 ILRM 134.
These judicial decisions were given statutory recognition in the recent Education Act 1998, which requires recognised schools (in effect those funded by the State) to use their available resources to ensure that the education needs of all students, including those with a disability, are identified and provided for.
In addition, under the 1998 Act, the function of the Minister for Education is to ensure that there is made available to each person resident in the State, support services and the level and quality of education appropriate to the needs and ability of that person (s.7). This includes persons with a disability or who have other special educational needs. This duty however is subject to the other provisions of the Act eg the Minister is empowered to provide funding as the Minister considers appropriate.
In the recent landmark case, the Supreme Court has held that the State's constitutional obligation to provide for free primary education ceased at the age of 18: Sinnott v Minister for Education [2000 SC] - July 2001. The government has indicated its intention to provide primary education for persons with disabilities beyond 18, but there is no right to such education, enforceable as a right by a person with a disability.
Also there is no statutory or established constitution right of a disabled person, or for that matter any person, to a 2nd or 3rd level education. Of course, an educational establishment under equality legislation, must not discriminate against disabled students, but it has a let out clause, as it can argue that it cannot cater for persons with a disability because the cost is not a nominal cost.
Also the governing body of a university is required to prepare a statement of the policies of the university in respect of access to the university and to university education by people who have a disability: Universities Act 1997 s.36.
Access to Qualifications
Qualifications have long been recognised as of fundamental importance eg in relation to recognition of skill, knowledge and ability, and in relation to progression to higher or different qualifications.
A radical overhaul of the qualifications structure in Ireland has been provided for in the Qualifications (Education and Training) Act 1999. Persons with a disability have not been forgotten in that legislation, as one of the objects of the legislation is to facilitate lifelong learning through the promotion of access and opportunities for learners, including learners with a disability (ss.2(1) and 4(1)(e)). Education, training and awarding bodies are required to have regard for this in exercising their functions under the Act (s.4(2)).
Ireland has a long way to go in improving mobility for persons with a disability. Recent legislation however is encouraging. For example, road authorities are now required when constructing and altering public footpaths or pavements to provide ramps, dished kerbs or other sloped areas for the purpose of facilitating the mobility of persons with a disability: Equal Status Act 2000 s.19.
Also that Act empowers the Minister for Public Enterprise to make regulations requiring road or rail passenger vehicles and bus stations to be readily accessible and usable by persons with a disability (ss.17-18). However, this has to be seen against a background of years of neglect in respect of investment in our road infrastructure and public transport system, both of which are currently in a constant state of crisis and gridlock.
On the positive side, all airlines, service providers and other agencies conducting business at Ireland's main airports are now required to do all that is reasonable to accommodate the needs of persons with a disability, by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for these persons to avail themselves of the service: Aer Rianta bye-law Statutory Instrument No 469 of 1999.
Also, provision has been made by building regulations for improved access to buildings for persons with a disability eg Statutory Instruments No 497of 1997 and 249 of 2000. These regulations will, in time, have a profound effect on the build environment for persons with a disability.
Access to Information
Legislation was introduced in 1997 which has its aim, greater openness and transparency in relation to government and public bodies, consistent with the public interest and the right of privacy: Freedom of Information Act 1997. Under the Act, a right of access to the records of public bodies is conferred.
A person with a disability might not be in a position, because of their disability to exercise that right. Consequently, public bodies have a duty to give reasonable assistance to a person with a disability who is seeking a record of a public body, so as to facilitate the exercise by that person of his or her rights under the Act (s.6(2)).
Integration into mainstream services
In 1998 organisation changes were initiated with the purpose of integrating the services for persons with disabilities with the mainstream services for other persons, and to give organisational teeth to the new legislation prohibiting discrimination. Discrimination is now prohibited on the grounds of: sex, sexual orientation, marital status, race, religion, age, family status, member of the Traveller community, victimisation and disability.
In 1998, a new body was established, called the Equality Authority, with the following general functions:
Its functions were expanded in 2000 to cover equal status matters eg in relation to prohibited conduct (discrimination, harassment): Equal Status Act 2000. The legislation provides for an independent Director of Equality Investigations. Following a decision of the Director, the Authority may apply to the court for an injunction to prevent further occurrences of prohibited conduct. For more information on the Equality Authority, see www.equality.ie
to work towards the elimination of discrimination in employment;
to promote equality of opportunity;
to provide information to the public on equality;
to keep equality legislation under review: Employment Equality Act 1998.
As part of the mainstreaming of provisions for persons with a disability, the National Rehabilitation Board was dissolved in 2000 and its functions were taken over by existing bodies - FAS and the health boards, and two new bodies - Comhairle and the National Disability Authority. The NRB previously advised the Minister for Health on rehabilitation services, co-ordinated the work of other bodies engaged in rehabilitation and provided direct services itself eg vocational assessment.
Comhairle is a new body established by the Comhairle Act 2000, merging the existing National Social Services Board and certain functions of the NRB. The primary function of Comhairle is to ensure that individuals, including those with a disability, have access to accurate, comprehensive and clear information relating to social services and are referred to the relevant services (s.7). It is enabled to provide directly, or support the provision of, independent information, advice and advocacy services.
Advocacy services include services in which the interests of a person seeking a social service are represented in order to assist the person in securing entitlements to such service but does not include legal representation (s.2(1)). Comhairle has responsibility for assisting and supporting individuals, in particular those with disabilities, in identifying and understanding their needs and options (s.7(1)(b)). For further information on Comhairle, see www.cidb.ie
In the first real attempt to mainstream vocational services for persons with disabilities, FAS, the national training and employment authority, took over national responsibility in 2000 for vocational training and employment placement of persons with a disability. Previously, FAS provided vocational training only for those disabled persons who had the capacity, without special assistance, to be trained on an integrated basis with those without a disability. For further information on FAS, see www.fas.ie
National Disability Authority
From all this organisational change, the only state body with a singular focus on persons with a disability, is the new National Disability Authority, which is a central national body with the function of
The Authority is independent in the exercise of its functions (s.7). It is empowered to draft codes of practice for the purpose of achieving the aim of good standards and quality in the provision of programmes and services (s.10). The Authority is also empowered to make recommendations to the Minister for the review, reduction or withdrawal of any moneys provided by the Oireachtas for any programme or service (s.15(4)). This is an important power of the Authority. It will be interesting to see the extent to which the Authority uses the power and the extent to which the Minister acts on the recommendations.
assisting the Minister for Justice, Equality and Law Reform in the co-ordination and development of policy relating to persons with disabilities;
advising on appropriate standards for programmes and services provided to persons with disabilities and the monitoring of the standards and codes of practice;
recognising the achievement of good standards and quality; and
preparing strategic plans, comprising the key objectives, outputs and related strategies of the Authority: National Disability Authority Act 1999 s.8.
The Minister in appointing members of the Authority, must have regard to the objective that a majority be persons with disabilities, their representatives, families or carers (s.20(3)(a)). For further information on the National Disability Authority, see www.nda.ie
Prohibition of discrimination
Recent legislation prohibits discrimination as regards employment and in relation to goods and services. As indicated earlier, there are 10 discriminatory grounds, including disability
An employer is prohibited from discriminating against an employee or prospective employee on the grounds of disability: Employment Equality Act 1998 ss.8(1) and 6. Treating one person less favourably than another person because one is a person with a disability and the other either is not, or is a person with a different disability, is discrimination. This is in relation to access to employment, conditions of employment, training or work experience, promotion or regrading, or classification of posts.
However, an employer is not required to recruit or retain any person who is not fully competent and capable to undertake the duties of the job position (s.16(1)). A person with a disability is considered fully competent and capable, if he or she could undertake the duties with the assistance of special treatment or facilities (s.16(3)(a)).
An employer is required to do all that is reasonable to provide such special treatment or facilities, but only if the cost is nominal in nature (s.16(3)(b)-(c)). This limitation of nominal cost was necessitated, as a stronger provision in a previous Bill was struck down as unconstitutional, as it was held to have imposed burdens on employers which amounted to an unjust attack on their property rights: In the matter of Art.26 of the Constitution and the Employment Equality Bill 1996 [1997 SC] 2 IR 321. There is no definition of nominal in the legislation.
There is provision for special rates of remuneration for persons with a disability which restricts them in their capacity to do the same amount of work (or hours) as a person without a disability (s.35(1)). It is also not discriminatory to have special measures to facilitate the integration into employment of persons with a disability (s.33(1)(b)).
Disability discrimination provisions do not apply to employment in the garda siochana (police force), the defence forces or in the prison service (s.37(6)).
Goods and Services
A person must not discriminate on disability grounds in disposing of goods or premises or in providing a service or accommodation: Equal Status Act 2000 ss.5, 6 and 3. Treating one person less favourably than another person because one is a person with a disability and the other either is not, or is a person with a different disability, is discrimination.
In addition, discrimination includes a refusal or failure by the provider of the service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities, it would be impossible or unduly difficult for the person to avail himself of the service (s.4). It is not discrimination if the cost involved is more than a nominal cost.
Also in s.4, provider of a service is widely defined to include a person disposing of goods or an estate or interest in premises, a person responsible for the provision of accommodation, an educational establishment, and a club (s.4(b)). Having a reasonable preferential charge for persons with a disability does not constitute discrimination (s.16(1)(a)).
The law has an important role to play in creating a legal framework within which persons with a disability can be assisted in obtaining equality of treatment, whether in relation to employment, training, education, mobility, or in relation to preventing discrimination.
There has been a raft of legislation affecting these areas in recent times, although in many cases, the approach has been cautious and minimalistic, with plenty of opt-outs. On equality, discrimination and access to information, the law is written in terms of the rights of the individual and there are strong enforcement provisions. By contrast, on mobility and access to education, the law is either enabling or written in terms of the inputs of institutions rather than clearly spelling out the rights of the individual.
The law is one thing, but actions speak louder than words. For example, the legislation gives the Minister for Public Enterprise power to bring in regulations requiring public transport to be accessible, but will the Minister exercise that power and when? Currently, public transport is generally inaccessible. The National Disability Authority can recommend the withdrawal of public funds in respect of a programme or service which does not reach a particular standard, but will it?
Barrister Henry Murdoch is author of Murdoch's Irish Legal Companion, available on CD-ROM and on line from Lendac Data Systems Ltd - http://milc.lendac.ie