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Legal

Traveller Ethnicity and the Law


1. INTRODUCTION

If I said Travellers are an ethnic minority what would I mean?

What does it mean to recognise ethnicity?
In Canada there is an exemption for Sikhs from wearing a helmet when riding a motorbike or bicycle as they cannot wear one without removing their turban which is essential to their culture and identity.

Could something similar happen in Ireland in relation to the recognition of Traveller culture? For example, an exemption from the Control of Horses Act 1996?


How will Traveller ethnicity be recognised?

It may be recognised by the government or by law. There are four main sources of Irish law.

  1. Constitution
  2. Case Law
  3. Statute/Acts
  4. International law
 
Has Traveller ethnicity already been recognised?

Yes
Equal Status Act 2000
Incitement to Hatred Act 1989
Housing (Travellers Accommodation) Act 1998

No
Irish government said to the UN CERD Committee in 2004:

“The Government’s view is that Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or national or ethnic origin. However, the Government of Ireland accepts the right of Travellers to their cultural identity”

Therefore while people of a different nationality or race are protected under CERD Travellers are not as they are not defined as an ethnic minority group.


We believe recognition will bring the following changes in Ireland:

  • Recognition under international and European agreements
  • Government policy tailored to Traveller culture
  • Travellers culture recognised and respected and protected
  • Laws will exempt Travellers where they threaten Traveller way of life



2. RECOGNITION OF TRAVELLERS AS AN ETHNIC MINORITY


1. History of definition of Travellers

a. The Commission on Itinerancy 1963 ‘itinerant’: “a person who had no fixed place of abode and habitually wandered from place to place, but excluding travelling show-people and travelling entertainers ...” (1963:12).

b. Travelling People Review Body 1981 “They are an identifiable group of people, identified both by themselves and by other members of the community (referred to for convenience as the ‘settled community’) as people with their own distinctive life style, traditionally of a nomadic nature but not now habitual wanderers.”

c. The Task Force on the Travelling People 1993 “the visible markers of Traveller culture include Traveller nomadism, the importance of the extended family, the Traveller language and the organisation of the Traveller economy and it discussed in some detail the significance of Traveller nomadism and the Traveller language”


2. Accommodation (cases and statutes of importance in date order)

a. John O’Reilly and Ors v Limerick Co Co HC 1989 – “The Housing Act 1966 does not impose a duty upon the housing authority to provide serviced halting sites”.

b. Housing Act 1988
Definition: “This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life”.
-    Section 13 clarified the powers of housing authorities to provide serviced sites.

c. Housing (Traveller Accommodation) Act 1998
This is the first piece of specific legislation to address Traveller accommodation.

d. The University of Limerick -v- Ryan, O’Reilly, John McCarthy, McCarthy, Limerick Co Co HC 1991 - “Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends …to the provision not of dwellings but of caravan sites.”

3. Equality and Non-discrimination (sources of law)

a. Constitution
Equality
Art 40.1 states: “All citizens shall, as human persons, be held equal before the law”.
Framing the debate in terms of ethnicity increases the likelihood of coming under.

b. Statutes
Prohibition to Incitement to Hatred Act 1989
Unfair Dismissals Amendment Act 1993
Equal Status Act 2000 (as amended by the Intoxicating Liquor Act 2003)Definition: “….the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”



3. FAILURE TO RECOGNISE TRAVELLERS AS AN ETHNIC MINORITY


1. History:  Criminalization of Traveller culture

Different statutes of the fifteenth and sixteenth centuries outlawed  “vagrant persons”, “idle persons”, tinkers and peddlars”.

Section 4 of the Vagrancy Act 1824 criminalised any person:
“(a) pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of His Majesty's subjects; or (b) wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself.” 2  [ Found unconstitutional in King v Attorney General [1981] I.R. 233. ]

Gypsies Bill Northern Ireland 1950 which criminalised camping without consent of landowner and seizure of trespassing animals and allow for summary arrest. Some laws that seem neutral have been targeted at Travellers specifically or disproportionately used against Travellers. This is indirect discrimination. Eg: Criminal Trespass law 2002 – it is believed this used solely against Travellers.

2. Accommodation – Summary Evictions

Local Government (Sanitary Services) Act 1948, s.31 of which provides for the prohibition and exclusion of “Temporary Dwellings” from Local Authority areas.
Section 69 of the Roads Act 1993 deals with the erection and maintenance of temporary dwellings, and gives the power of seizure to Gardaí and authorised persons to remove caravans from certain types of roads.

Section 24 of the Housing (Miscellaneous Provisions) Act 2003 amending Public Order Act gives a power of arrest and seizure to Gardaí, where a caravan is parked on public or private property without consent. Section 10 24 hour notice to remove if caravan is within five miles of an official halting site,  unfit for human habitation, or within a one mile radius of any Traveller accommodation and there is no obligation to provide Travellers with alternative accommodation.The continued eviction of Traveller families and individuals without the protection of some form of judicial sanction and court proceedings is contrary to international human rights standards. 

3. Horses – Lack of cultural exemption/housing plans having provision for horses

The Control of Horses Act 1996 allows local authorities or its agents to impound any horse found on land not belonging to the horse’s owner. Travellers have great difficulty complying with this Act as oftentimes they do not own the land on which they keep their horses. Over-zealous agents of the council have added to the problem.



4. EXAMPLES FROM OTHER COURTS


UK, NI, Australia, New Zealand, European Court of Human Rights

England and Wales

Race Relations Act in 1976 outlawed discrimination on racial grounds, followed closely the CERD Convention’s definition of racial discrimination.  Section 3(1) of the Act stated that discrimination on “racial grounds” meant “any of the following grounds, namely colour, race, nationality or ethnic or national origins”. Travellers were not expressly included like in Ireland.

Mandla v. Dowell Lee [1983] House of Lords

a Sikh boy who was refused entry to a school near Birmingham because he wished to wear a turban in accordance with Sikh tradition.  
“For a group to constitute an ethnic group, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.  Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. 

The conditions which appear to me to be essential are these:
  1. a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive;
  2. a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.  In addition to these two essential characteristics, the following characteristics are in my opinion, relevant:
  3. either a common geographical origin, or descent from a small number of common ancestors;
  4. a common language, not necessarily peculiar to the group;
  5. a common literature peculiar to the group;
  6. a common religion different from that of neighbouring groups or from the general community surrounding it;
  7. being a minority or being an oppressed or a dominant group within a larger community ...”

Using these criteria, he held that Sikhs “are a group defined by a reference to ethnic origins for the purpose of the Act of 1976, although they are not biologically distinguishable from the other peoples living in the Punjab”.

Commission for Racial Equality v. Dutton [1989] 2WLR 17

London publican displayed a sign saying “No travellers” in his window, the Court of Appeal had to determine whether English gypsies constituted a “racial group” under the Act.  

Court said ‘ethnic’ is not used in that Act in a strictly biological or racial sense”.  Applying the Mandla v. Dowell Lee criteria, he held that there was sufficient evidence to establish that “gypsies are an identifiable group of persons defined by reference to ethnic origins within the meaning of the Act”.


Wrexham Borough Council v. Berry [2003] UKHL 26, at paragraph 41.
Planning Act cases involving illegally encamped gypsies, said that one of the matters a court should take into account when considering an application for an injunction, was “the retention of his [the gypsy Respondent’s] ethnic identity”

O’Leary & Others v. Allied Domecq & Others, unreported 29 August 2000
Central London County Court was dealing with a claim by a number of Irish Travellers that they had been refused service in five public houses in northwest London.  It was not contended that the reason why the Plaintiffs had been discriminated against was because they were Irish since one of the offending pubs catered for an almost exclusively Irish clientele.

Judge Goldstein and two assessors sat for six days listening to expert evidence and then applied the Mandla v. Dowell Lee criteria. They held that the Travellers met the two essential conditions laid down in that case, (1) possessing a long shared history which distinguished them from other groups (the court held that a history that could be traced back to at least the middle of the 19th century was sufficient to fulfil the Mandla test), and (2) having a distinct cultural tradition of their own.

On the question of a distinct cultural tradition, Judge Goldstein said the court had not had much difficulty.  They found that Travellers were plainly nomadic, even if some of them were now “settled”.  They preferred to be self-employed and had certain traditional occupations.  Some of them still practised match-making and they tended to marry within their own community.  They had certain taboos about pollution and, though overwhelmingly Catholic, they had a particular attachment to pilgrimages and rituals.

As for the non-essential criteria set out in the Mandla judgment, the court held that Irish Travellers did share “a common geographical origin, or descent from a small number of common ancestors”.  They had a common language, namely Cant, Gammon or Shelta, whether or not it was widely used any more.  While they did not have a common written literature, they did have a common oral tradition.  And Judge Goldstein said: “[O]ne of the few things that are actually conceded, they are undoubtedly a group which suffers disadvantage, discrimination and prejudice”.

The Minister for Justice, Equality and Law Reform mentioned recently (at a session of the Oireachtas Sub-Committee on Human Rights on 11 March 2004) that the UK courts' and government's recognition extends only to Irish Travellers, suggesting that the key factor might be their Irish origin.  In fact, the Court in the Allied Domecq case went some way to meet that point by noting that one of the pubs which had refused entry to the Travellers in that case was itself patronised by "settled" Irish people so that the discrimination complained about was not based on the complainants’ Irishness.  In fact, the Court noted that if it had been based on the complainants' Irish origins, it would have been a straightforward issue of discrimination on grounds of nationality or race.


Northern Ireland

The courts in Northern Ireland would probably have had to follow the lead of the Court of Appeal for England and Wales and the House of Lords in this area, but the matter has been put beyond dispute by specific legislation.  Article 5(2)(a) of the Race Relations (Northern Ireland) Order 1997 says:  

“In this Order, ‘racial grounds’ ... includes the grounds of belonging to the Irish Traveller community, that is to say the community of people commonly so called who are identified (both by themselves and by others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland...”

Article 5(3) says: “In this Order ‘racial group’ ... includes the Irish Traveller community”.

And Section 75(5) of the Northern Ireland Act, 1998 says:  “In this section ... ‘racial group’ has the same meaning as in the Race Relations (Northern Ireland) Order 1997”.

In the case of Northern Ireland it is clearly not their Irishness that leads to Travellers being treated as a distinctive ‘ethnic’ group; it is the fact of their being Travellers.

The shortcomings are:
1.    it does not define direct discrimination much like the 1976 Act
2.    It does not apply to all government departments only district Councils (not health, housing, etc.)

New Zealand

King-Ansell v. Police [1979] the court had to decide if Jews were an ethnic group:

“The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins.  That must be based on a belief shared by members of the group.

“[A] group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock”

European Court of Human Rights

Chapman v. the United Kingdom 2001
Refusal to grant gypsy planning permission to live in a caravan on her own land.  The Court accepted that gypsies constituted a distinct ethnic group in Britain and said: “[T]he Applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle”.  On the facts of the particular case, however, the Court found no violation of the European Convention on Human Rights.

Australia

Relied on the judgments in the King-Ansell case in New Zealand and in Mandla v. Dowell Lee when deciding in the case of Jones v. Scully [2002] that Jews constituted a racial group for the purposes of the Australian Racial Discrimination Act, 1975.

Mabo v Queensland 1992
Until the 1992 High Court decision in what has come to be called the Mabo case it had been held legally that despite an estimated population of 300,000 aboriginal people, Australia was terra nullius or unoccupied land in 1788, and, as such, the indigenous people had no entitlement to their land. The dominant theme in Australian history then shifted from ignoring and justifying to including and challenging, and the histories of the violent destruction of Aboriginal societies and of Aboriginal resistance were finally being written. It was also at this time that Eddie Mabo and four other Torres Strait Islanders began their action for a declaration of native title to their traditional lands. The Meriam people were deemed entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer.
The following year, the Native Title Act (1993) , which was introduced to provide for the recognition and protection of native title "recognises native title rights and sets down some basic principles in relation to native title in Australia; provides for the validation of past acts which may be invalid because of the existence of native title; provides for a future regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters; provides a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters". (Information obtained from the Attorney General's Office, 1993)

By passing this Statute, Australia's Parliament confirmed that it was not only the court but also the State itself that was protecting and promoting native title. The Australian Prime Minister said: "The starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We practised discrimination and exclusion. It was our ignorance and our prejudice."
Recognised in history, courts, by government.


Could Mabo apply in Ireland?

The usual first step in such a process would be to set up a Commission on Traveller Title or else task a pre-existing-body, like the Law Reform Commission, to prepare a report. Alternatively, the process could be fast tracked by the publication of a bill, and to this end Frank Murphy solicitor prepared the draft heads of such a bill, modelled to an extent on the Australian Native Title Act 1993.

In the 40 year period since the first Government-commissioned Report in 1963 there has been a failure of Government policy to respond to the nomadic way of life, particularly in the area of accommodation provision. Furthermore, other aspects of social exclusion result from the current criminalisation of the nomadic way of life such as the anti-trespass legislation coupled with the failure to give access to land use based on the nomadic way of life.

In looking at the Australian experience, we see that after 200 years, in the Mabo case their High Court found a way to remedy the injustice caused by the failure to provide access to land use by recognising native title for the Aborigines and the State also sought to use this as a platform for reconciliation.

From examination of historical records, in particular the Folklore Survey in 1952, it appears that a similar type of case could be made for Travellers that would allow the recognition of Traveller title. In view of the importance that property has in our society, with its constitutional protection, property rights in general and the fact that property is the usual basis for the provision of a home, it is necessary that such title be recognised.

This might be done either by litigation or legislation and it could be fostered and promoted either in the current legal system, or if considered appropriate, with a separate Traveller legal system.


5. POTENTIAL IMPACT ON GOVERNMENT POLICY


In 2005, the Government launched the National Action Plan Against Racism (2005-2008) (NPAR), a four year programme designed to provide strategic direction towards developing a more intercultural inclusive society in Ireland. This began the process whereby local authorities developed anti-racism and diversity plans. NPAR included Travellers in its remit. The Office of the Minister for Integration took over in 2008 and works with the Garda Síochána, Local Authorities, Sporting Bodies, Government Departments to further progress the integration and diversity of cultural and ethnic minorities. However, as the government does not recognise Irish Travellers as an ethnic minority they are not within the remit of this new office. Recognition of ethnicity would potentially change this.


The National Development Plan 2007-2013 was launched in 2007, with an indication that some €36m would be invested across government departments over the lifetime of the Plan to support the integration of immigrants in Ireland. The National Development Plan and also the National Action Plan for Social Inclusion 2008-2010 recognise integration as “one of the most important challenges being faced by Irish society”. But Travellers’ integration appears nowhere within these Plans. Recognition of ethnicity could potentially change this.

National strategies in the following areas do not yet extend to Travellers: -
- Action Strategy to Support Integrated Workplaces
- HSE National Intercultural Health Strategy
- Intercultural Education Strategy
 - Strategy for Cultural Diversity and the Arts.



6. POTENTIAL IMPACT ON IRISH DOMESTIC LAW


1.    Affirmative Action

“Affirmative action” means positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded. When those steps involve preferential selection—selection on the basis of race, gender, or ethnicity—affirmative action sometimes generates controversy.
The Royal College of Surgeons recently started an Access Programme for Travellers. The Law Centre is working toward a similar project for the Law Society and Bar Council.
One medical school in the US offered four reasons for this type of programme:
  1. to reduce "the historic deficit of traditionally disfavored minorities in medical schools and the medical profession"
  2. to counter "the effects of societal discrimination"
  3. to increase "the number of physicians who will practice in communities currently underserved" and
  4. to obtain "the educational benefits that flow from an ethnically diverse student body"

Employment Equality Act 1998 – s.33 as amended by s.33 of the Equality Act 2004
"33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground), (b) to protect the health or safety at work of persons with a disability, or(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment".


2. Hate Crime Legislation in England and Wales

Definition of a hate crime: Any incident, which constitutes a criminal offence, which is perceived by the victim or any other person as being motivated by prejudice or hate.

Hate crime can take many forms including:
  • physical attacks – such as physical assault, damage to property, offensive graffiti, neighbour disputes and arson
  • threat of attack – including offensive letters, abusive or obscene telephone calls, groups hanging around to intimidate and unfounded, malicious complaints
  • verbal abuse or insults - offensive leaflets and posters, abusive gestures, dumping of rubbish outside homes or through letterboxes, and bullying at school or in the workplace
UK’s Crime and Disorder Act 1998 s.28 Meaning of “racially aggravated”
“(1) An offence is racially aggravated for the purposes of sections 29 to 32 below if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.
(2) In subsection (1)(a) above—
•    “membership”, in relation to a racial group, includes association with members of that group;
•    “presumed” means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on—
(a) the fact or presumption that any person or group of persons belongs to any religious group; or
(b) any other factor not mentioned in that paragraph.
(4) In this section “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”


7. RECOGNITION IN INTERNATIONAL LAW

1. Race Directive (Council Directive 2000/43/EC)

-    A Directive to implement the principle of equal treatment between persons irrespective of racial or ethnic origin.
-    Defines the concept of direct discrimination/ indirect discrimination and harassment.
-    Goes further than Irish equality leg and gives more protection.
The Minister for Justice, Equality and Law Reform, is of the opinion that Travellers do not constitute a separate ethnic group within Irish Society, however it is clear that the provision of the Race Directive do apply to Travellers, although this thesis has not been tested in an Irish Court as yet. 2004 Act was meant to transpose it into Irish law. A case re DC jurisdiction for liquor license cases would test this in European Court of Justice.

2. European Convention of Human Rights

Article 8 of the ECHR is the right to respect for private and family life, the home, and correspondence. It has been acknowledged by the European Court of Human Rights that the choice to live a Traveller or Gypsy way of life is a matter protected by the guarantee of respect for private life. (Chapman v UK)

Article 6 (1) is a guarantee of fair procedures in the determination of a persons civil rights and obligations. As mentioned above the fact that the Gardaí, and local authorities can carry out forced evictions without any judicial sanction or internal rights of appeal, make these sections open to challenge under Article 6.
3. Framework Convention on the Rights of Minorities 1998

The Convention is described as a framework, as it contains “programmatic” provisions, rather than specific individual rights. The provisions are not directly applicable, leaves each state with a measure of discretion in the implementation of the principles enshrined in the Convention. There is no definition of a national minority. They may cede to the state on their definition.

Committee of Ministers shall monitor the implementation of the Convention. Article 25: parties are periodically required to submit a State report to the Committee of Ministers, on measures taken to give effect to the principles set out in the Convention. The period has been set at every five years. At one point in the Irish State Report (page 47), the Report actually refers to “Travellers and other minority ethnic groups” and the great bulk of the Report is devoted to the position of Travellers in Ireland, thus effectively acknowledging that they do come within the ambit of the Framework Convention.  The conclusions on the Irish Report by the monitoring committee for the Framework Convention, which will presumably include their comments on the position of Travellers, have not been released as yet.

4. ICERD International Convention for the Elimination of all forms of Racial Discrimination 2000.

 Article 1 defines racial discrimination as a distinction, exclusion, restriction or preference based on race, colour descent, or national or ethnic origin.
Article 2: state parties agree to pursue a policy of eliminating racial discrimination.
Article 5: guarantees individual rights

Committee for the Elimination of Racial Discrimination, made up of 18 experts, nominated by state parties, but who serve in their individual capacity. The main activities of CERD are;
Article 9: the consideration of State reports, which are to be submitted every two years, or when the committee so requests
Article 11: adjudicating on interstate complaints and making recommendation in relation thereto
Article 14: allows for state parties to make a declaration recognising the competence of CERD to deal with individual or group petitions, alleging a violation of rights under the Convention. Where such a petition is received the state concerned is given an opportunity to respond, and remedy the matter. Thereafter the Committee can forward suggestions and recommendations, if any, to the State Party concerned and to the petitioner. This Article can only be relied on after all domestic remedies have been exhausted.

It is ironic that it was in the first Report of the Irish Government under the UN Convention on the Elimination of All Forms of Racial Discrimination that the Government for the first time explicitly stated its belief that the Travellers were not an ethnic group. The position of the Government is that the assertion that Travellers are ethnically different from the majority of Irish people has not been proven. Travellers must be protected on an analogous basis. But they are not to be given the full protection of international law.

The term “ethnic origin” is not further defined in the CERD Convention, but in its decisions made clear that it regards Roma as an ethnic minority for the purposes of the Convention (Koptova v Slovakia 1998).

5. ICCPR International Covenant on Civil and Political Rights 1966

Article 2 requires each State Party to respect the rights recognized in the Covenant

“without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Here Ireland’s report commented:

“Allegations are sometimes made of discrimination against the travelling community…. Some of the bodies representing travellers claim that members of the community constitute a distinct ethnic group. The basis of this claim is not clear… However, members of the community are undoubtedly entitled to all rights under the Covenant and not to be discriminated against as a group and it does not appear to be of particular significance whether their rights relate to their alleged status as an ethnic group or to their social origin.”

Article 27 states that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” Here Ireland’s report commented:
    
“Insofar as Ireland is concerned the only ethnic group that might be covered by this Article is the travelling community. Some of the bodies representing travellers claim that members of the community constitute a distinct ethnic group. The basis of this claim is somewhat unclear. However the Government of Ireland accepts the rights of travellers to their cultural identity, regardless of whether it may properly be described as an ethnic group. In any event there is no legal restriction on any such group ‘to enjoy their own culture, to profess and practice their own religion or to use their own language’ as outlined in Article 27 of the Covenant”.

Would you agree there is no legal restriction to Travellers enjoying their own culture?


6. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities1992

Article 1 States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. States shall adopt appropriate legislative and other measures to achieve those ends.

Article 2 Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination. No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration.

Article 4 States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole.

Article 5 National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.


7. International Covenant on Economic, Social and Cultural Rights 1966

Article 1 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 2 All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

Article 3 The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

8. Convention on the Rights of the Child 1989 - Articles 17 and 30

Article 17
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(c) Encourage the production and dissemination of children's books;

(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.




Habitual Residence Condition and Travellers


Habitual Residence Condition and Travellers

The strucutre of this ITM Law Centre Document is as follows:


Section 1 – Introduction

Section 2 – Overview of HRC

Section 3 – Steps in the Process

Section 4 – How to Draft an Appeal – Template for the Social Welfare Appeals Office

Section 5 – Appeal Fails – Redress

Section 6 – Conclusion



SECTION 1 - INTRODUCTION

The Habitual Residence Condition is a condition that must be met in order for people to qualify for certain social welfare payments. The Irish government introduced the condition in 2004 to stop welfare fraud. It has recently come to the attention of the Law Centre and ITM that this practice of using the condition as a reason to deny social welfare has become more widespread. It has been affecting many Travellers returning from England. This new practice is reflected in the new DSFA guidelines on the HRC for 2010 evidenced by the fact that the following paragraph, which was contained in the 2008 Guidelines, has been omitted from the 2010 version:

“In general however, an applicant who is now living in Ireland, and has lived here or in other parts of the Common Travel Area all of his/her life will probably satisfy the Habitual Residence Condition.”

The results have been devastating with many families forced into refuges and relying on family and charitable support with no income.

All of the cases that have come to the attention of the Law Centre have been appealed to the Social Welfare Appeals Office. In the event that they are unsuccessful, the individual Travellers concerned may choose to take their case to the Equality Tribunal or the High Court.

The purpose of today’s talk is to empower you as Accommodation Workers to draft these appeals to the Social Welfare Appeals Office. The matter will then only come to the attention of the Law Centre at the appropriate time, ie: when it is ready for litigation. The Law Centre would be happy to review any appeals drafted. Please note that this pamphlet has been prepared with a specific factual scenario in mind (ie: unemployed Irish Travellers returning to Ireland having lived in England), if you encounter a very different factual scenario please refer the matter to ITM for possible referral to the Law Centre.



Risk of poverty and homelessness

The current policy and practice is causing extreme hardship and distress.  Whilst the decision can be appealed and may be overturned, this can takes weeks or months, during which time the applicant has no source of income. There is a risk of extreme poverty and homelessness in these cases. This should be dealt with proactively by local groups. Put the person in touch with local charitable organizations such as the St Vincent de Paul as well as local homeless agencies.

Threat of eviction from private landlord

A landlord may not remove your items from the house and change the locks for non-payment of rent. They must issue you with a 28 day notice. Even after the 28 days they cannot remove your items or change the locks. The only person/office who can do that is the Sheriff’s office. If a landlord is threatening the above action due to non-payment of rent (because rent supplement has been withheld on the grounds of failure to satisfy the HRC) inform him by letter of your situation and:
  • Appeal for time until the appeal has been determined
  • Inform him that his proposed actions would amount to an illegal eviction
  • If he still persists contact the Private Residential Tenancies Board (Tel: 01 6350600 or www.prtb.ie)


SECTION 2 – OVERVIEW OF HRC


When does the HRC apply?

The habitual residence condition must be met in order for people to qualify for certain social assistance payments in Ireland. These payments are:

  • Jobseeker's Allowance
  • State Pension (Non Contributory)
  • Blind Pension
  • Widow(er)'s Non Contributory Pension
  • One Parent Family Payment
  • Guardian's Payment
  • Carer's Allowance
  • Disability Allowance
  • Supplementary Welfare Allowance (other than once off exceptional and urgent needs payments)
  • Child Benefit

The Habitual Residence Condition is an additional condition to be satisfied along with the other conditions of entitlement for the payments concerned.

Who decides who is habitually resident?
Supplementary Welfare Allowance: an authorised officer of the HSE.
All other: a statutorily appointed Deciding Officer

What about self-employed Travellers?
Self-employment can be recognised as a viable proposition only if:
  • the self-employment business has been registered with the Revenue Commissioners and proof of such registration is supplied
  • the self-employment business is bona fide, legal self-employment of an ongoing nature.
  • It must comply with any official requirements (in Ireland) with regard to registration / licensing/ insurance of the business and be financially viable.

Once Habitually Resident, Always Habitually Resident?
No. The question of habitual residence may, of course, be reviewed at a later date if the person appears to have transferred their centre of interest to another country.
 
How does the deciding officer determine who is Habitually Resident?
In determining whether a person is habitually resident in Ireland, all relevant evidence is taken into account including:
  • the period before the person entered Ireland (and other parts of the CTA),
  • the present period and
  • the future intentions of the applicant as evidenced by his/her actions.

The Law
There are three relevant pieces of law, two DSFA circulars and several European Court of Justice cases on the HRC.
 
Section 246 of the Social Welfare Consolidation Act 2005 provides that:
 "it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date."

Two-year 'rule of thumb' amended following infringement proceedings against the Irish Government by the EU and Section 30 of the Social Welfare and Pensions Act 2007 added the following:

 "(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following:

a.    the length and continuity of residence in the State or in any other particular country;
b.    the length and purpose of any absence from the State;
c.     the nature and pattern of the person's employment;
d.    the person's main centre of interest, and
e.    the future intentions of the person concerned as they appear from all the circumstances."

These five factors derive from the ECJ ruling in the Swaddling case.

Subsection (9) inserted by the 2009 Act which states that “Notwithstanding that a person has, or is taken to have in accordance with subsection (6), a right to reside in the State the determination as to whether that person is habitually resident in the State shall be made in accordance with subsections (1) and (4)”.

DSFA Circular No. 8/09 indicates that “this clause puts a greater onus on persons who have been present for less than 2 years in the Common Travel Area”.   Conversely this means that a lesser onus should be placed on persons who have been present for more than 2 years in the Common Travel Area.

(This was further amended by Section 15 of the Social Welfare and Pensions (No. 2) Act 2009. This amendment is relevant to refugees.)


SECTION 3 – STEPS IN THE PROCESS

Step 1: Traveller returns from England and applies for one of the social welfare allowances listed above. Ask to fill in a HRC 1 form

Step 2: A letter of refusal comes to the Traveller from Social Welfare Services of the HSE. Within 21 days appeal the refusal to the Social Welfare Appeals Office (see sample form attached). Include the following:

  1. A well-drafted Section C (see below for more details)
  2. Copy original letter of refusal
  3. Copy lease in Ireland
  4. Copy letter from Housing Benefits/Council Tax Benefits office in UK acknowledging return to Ireland and that benefits have been stopped
  5. Copy Irish Housing Application/confirmation of receipt of application
  6. Copy letter from children’s school confirming enrollment
  7. Copy letter from GP/Health Centre confirming registration
  8. Any other documentary evidence of intention to remain

Request an oral hearing and that the matter be expedited on the grounds that the person is homeless/at risk of homelessness and destitution.

Step 3: Contact the Law Centre if the appeal fails.


SECTION 4 – HOW TO DRAFT AN APPEAL – TEMPLATE FOR THE SOCIAL WELFARE APPEALS OFFICE



Drafting the Appeal
The Appeal will be sent in on the standard SWAO application form

Section C requests that you set down all details you wish to have considered as grounds for your appeal. This should be done on a separate piece of paper and may be outlined as follows (omit any irrelevant statements and add more details where required):

SECTION C - GROUNDS FOR APPEAL
I enclose a copy of my original letter of refusal from the Deciding Officer/HSE.

Factor 1: “Length and Continuity of residence in the State or in any other particular country”
We have many relatives living near us in Ireland as listed below:
Daughter: (Name and Address)
Cousin: (Name and Address)
Son: (Name and Address)
Sister: (Name and Address)
Brother in Law: (Name and Address)
Also the following relatives are buried in Ireland: eg: parents, grandparents, aunts, uncles, siblings, etc.

We have taken up residence in our old caravan.

I was born in Ireland and lived in Ireland for X years before moving to England.

We resided in England for X years before returning to Ireland.

We have no remaining ties with England eg: children taken out of school, all belongings moved, ended tenancy, returned loaned caravan, left Health Centre, left work, stopped social welfare payments (proving we are not entitled to social welfare payments in any other State), family no longer live there.

Factor 2: The length and purpose of any absence from the State
We visited Ireland at regular intervals while living in England (eg: every summer for 6 weeks staying with my sister in Galway OR staying in our caravan which we kept near my sister’s home in Galway).

We did not purchase a home in England and were not employed in England.

We went to England (insert reason) and have maintained links with Ireland. We intended to live there for X years and stayed there for Y years.

We decided to return to Ireland (eg: when my sister’s husband died, when our children moved out and married, when my parents who lived in England with us died, etc.).

We intend to live out the rest of our days in Ireland/we intend to live in Ireland for the foreseeable future.

We moved all our furniture and our van/caravan/car to Ireland.

(Include entire employment history of life)

My spouse, children, sister etc returned to Ireland with me.

While we were in England I let my brother live in our caravan and he is now moving out to allow us to move back in. I therefore satisfied the HRC on arrival in Ireland as we are now returning to resume our permanent residence in Ireland as per the Swaddling case.

We kept links with Ireland by (eg: name and give year of weddings, funerals), keeping registered with (eg: car insurance or registration), etc.

I enclose proof of the termination of my tenancy in England and the termination of my employment/welfare entitlements in England.

We returned to Ireland on X date and have been here everyday since (explain any brief absences since return).

Factor 3: The nature and pattern of the person’s employment

(Reason number 1 for my refusal was that I have no record of employment in Ireland.)

I have been living in Ireland for X years and have been working in stable employment with (insert name of employer) since X date. I am therefore presumed to be habitually resident in Ireland and there is nothing to rebut this presumption.

I am not currently in employment/have never been employed. This factor is of no relevance to my case and should certainly not be taken into account in any adverse way.

Factor 4: The Applicant’s main centre of interest

(Reason number 2 for my refusal was that Ireland is not my centre of interest.)

My home and my family are in Ireland and Ireland is my main centre of interest.

I was born in Ireland/I hold an Irish passport/all my family are Irish resident (ie: sisters, brothers, parents, children, etc).

I have lived in Ireland most of my life.

An applicant's main centre of interest, at the time of application, must be in the Republic of Ireland.

My home is (insert address)

My family live near me (see above under Factor 1).

I am a member of eg: FAS, Medical centre, etc. and enclose documentary evidence of this.

My car is here and is registered and insured here, my furniture and caravan and all my belongings are here.

I gave up a council house/returned a loaned caravan to the state in England.

I have taken up a one year lease of a house and enclose a copy of my lease/I have been trying to get a lease of a property and enclose a letter from my letting agent/letters of refusal from several landlords.

 Factor 5: The future intentions of the person concerned as they appear from all the circumstances

As a member of the Travelling Community I have a traditionally nomadic type lifestyle and do not have permanent homes etc. This should not mitigate against me in your decision and special recognition should be given to the nature of my lifestyle when considering this and the other factors, in accordance with the Equality Acts 2000-2004.
 
I have come to Ireland with the intention of resettling here.

I made arrangements for accommodation before moving to Ireland (insert details).
 
I bought a one way travel ticket to Ireland (copy attached).

I have made an application to the Housing Section of my local authority (I enclose copy receipt of same).

I have transported all my belongings to Ireland including….
 
I own a car and have reregistered it and insured it in Ireland/am in the process of reregistering and insuring it in Ireland (see documentation attached).


Irrelevant Considerations:
The following reasons for refusal were irrelevant considerations for the purposes of establishing habitual residence therefore rendering the decision flawed and unsafe:
Eg:
1. “the person deprived themselves of income in the UK”
2. “Ireland is in a recession”

(Irrelevant considerations are those not stated in the Guidelines to be relevant.)

Consistency in decision-making
According to the 2010 Guidelines:
“In making a determination on Habitual Residence, Deciding Officers should have regard to any previous HRC determinations issued in respect of the same applicant if other claims for assistance payments or child benefit have already been allowed or refused.”

It goes on to state that “The deciding officer should therefore establish whether the same factors continue to apply, and full account must be taken of the latest relevant evidence and information. Where a deciding officer proposes to make a decision on HRC which is different to a previous HRC decision in respect of the same person, both deciding officers should consult so as to ensure a consistent interpretation of the applicant's HRC status.”

I was previously receipt of (name one of the social welfare allowances listed above as relevant to the HRC that you were in receipt of immediately on your return to Ireland) from X date to Y date. I was assessed as habitually resident for the purposes of this payment. There is no evidence that the deciding officer sought to establish whether the same factors continue to apply or that both deciding officers consulted so as to ensure a consistent interpretation of the my HRC status – according to 2010 DSFA Guidelines this may be challenged.  

Any new or additional evidence since original application…

We now owe €5000 in rent and our landlord has started to put pressure on us for this back rent and we fear we will soon be threatened with eviction and rendered homeless.  We are also destitute as our family has no source of income and we have no money for food/electricity, etc.

We therefore request that you expedite this application as a matter of extreme urgency and we request an oral hearing.

Enclosures:

  1. Copy letter of refusal of Social Welfare Payment dated (within 21 days) - Essential
  2. Copy letter from Housing Benefits/Council Tax Benefits office in UK acknowledging return to Ireland and that benefits have been stopped
  3. Copy Irish Housing Application/confirmation of receipt of application
  4. Copy letter from children’s school confirming enrollment
  5. Copy letter from GP/Health Centre confirming registration
  6. Car insurance and registration in Ireland
  7. FAS membership
  8. Local club or library membership
  9. Copy one way ticket to Ireland
  10. Copy lease/letter from letting agent confirming seeking accommodation
  11. Any other documentary evidence of intention to remain


SECTION 5 - APPEAL FAILS - REDRESS



1. The Ombudsman

Office of the Ombudsman
18 Lower Leeson St, Dublin 2
Lo-call: 1890 223 030 Tel: (01) 639 5600 Fax: (01) 639 5674
Email: ombudsman@ombudsman.gov.ie
Web: www.ombudsman.gov.ie

Office of the Ombudsman for Children
Millennium House, 52-56 Great Strand St, Dublin 1
Freephone: 1800 202 040 Tel: (01) 865 6800
Email: oco@oco.ie Web: www.oco.ie

2. Equality Tribunal

The application of the HRC potentially discriminates on the grounds of membership of the Traveller community under the Equality Acts 2000-2004 on the basis of indirect discrimination.  

Indirect discrimination occurs when apparently neutral provision puts persons from a particular group at a particular disadvantage.  As many Travellers live a nomadic lifestyle, they often spend time living in Northern Ireland and England and the Republic of Ireland for varying periods. Therefore the application of the HRC to the CTA has a disproportionate negative impact on Travellers.

Discrimination may only be argued in respect of access to services. Donovan v. Donnellan  an Equality Officer interpreted the term “service” and concluded that ‘while State services are not specifically mentioned as being covered they are not specifically excluded either and I believe that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc.’  

3. Judicial Review

This is a High Court application to review a decision. It can take many years to progress. You will need a solicitor and a barrister.

In light of the provisions of section 246(1), we are informed that the position being adopted by the Department in relation to Irish citizens who are resuming residence where all of the period of absence has been spent in the CTA would not necessarily stand up to judicial scrutiny.  If subsection (1) had been deleted by the Oireachtas the position would, of course, be different.

A decision can also be challenged on the grounds of unreasonableness but the reasonableness of the decision can only be judged against the facts as presented to the decision maker.   Therefore it is important that all relevant information is given at the appeal stage. Judicial Review is not an opportunity for a fresh appeal.

It is also important that any request by the Appeals Officer for information is dealt with comprehensively and speedily.  In this regard there is an interesting  recent case Ayavoro v Health Service Executive (HSE) & Minister for Social & Family Affairs 2009 High Court. In that case the Applicant brought judicial review proceedings against the HSE and Minister for Social & Family Affairs in relation to a refusal of his claims for Supplementary Welfare Allowance and Jobseeker’s Allowance.  In the course of his judgment O’Neill J. was critical of the Applicant’s failure to respond to requests for information in relation to his claim and it compromised the case.


SECTION 6 – CONCLUSION


If you come across a similar refusal on the grounds of the HRC make sure to get the appeal in without delay to the SWAO. Follow the template on pages 8-13 of this handout and be sure to include documentary evidence. Be aware of the 21 day time limit for appeals. If necessary, draft the form and have it signed and send it in by email (email address is on the form) and indicate that Section C and the documentary evidence will follow.

Contact the Law Centre if you want us to review the appeal once written.

In the event that the appeal fails, contact the Law Centre to see if the matter may be progressed further. 

This document was originally presented to the ITM Accommodation Working Group on the 10th March 2010




Rights to Education under Irish Law


RIGHT TO EDUCATION UNDER IRISH LAW

IRISH TRAVELLER MOVEMENT INDEPENDENT LAW CENTRE
 

Presentation made to the ITM Education Working Group
Portlaoise, 20th April 2010


Section 1: Constitutional Right to Education

Section 2: Legislative Framework

Section 3: Expulsion, Suspension, Refusal to Enrol

Section 4: Equality Acts 2000-2004


Section 1: Constitutional Right to Education


Parents as the primary educator:

Article 42 acknowledges that the parent is the natural and primary educator of the child.
Parents enjoy free choice in the education of their children and cannot be forced to send their children to schools designated by the state.
-     DPP v Best 1998
The right to a free primary education
Article 42.4 obliges the state to provide for free primary education.
-    Crowley v Ireland 1980
-    Campaign to Separate Church and State v Minister for Education 1998

Right to Special Education Provision

The Constitution does not make any express provision for the right to special educational provision; however, the existence of a right to special education provision has been established by various decisions of the Superior Courts and has been interpreted to derive from Article 42 and other provisions.  
- Ryan – v – Attorney General (1964 I.R. 294) stated;
"giving each child such advice, instruction and teaching as will enable him/her to make the best possible use of his/her inherent and potential capacities, physical, mental, and moral however limited these capacities may be".

- Sinnott – v – The Minister for Education, [2001] 2 I.R. 545 (High Court)
the right to education does not extend beyond the age of 18 years. 

-    O’Carolan – v – The Minister for Education, (2005 IEHC 296)
in determining whether the applicants constitutional rights to education was being vindicated, the test was whether the provision of education on offer was "appropriate".  


Section 2: Legislative Framework:

- Education Act 1998,
-    Education of Persons with Special Needs Act 2004,
-    Disability Act 2005

Overview of the Act:
-    Broad: refers to persons with disabilities (unlike the Constitution), refers to the term "person" as opposed to "child"
-    Limited: Minister is limited by availability of resources

Section 6 sets out the objective of the Act of which the following are of particular interest to those with special educational needs:

(a)    To give practical effect to the constitutional rights of children who have a disability or who have other special educational needs;
(b)    To provide that there is made available, a level of quality of education appropriate to meeting the needs and abilities of those people;
(c)    To promote a quality of access to and participation in education, and to promote the means whereby students may benefit from education;
(d)    To promote effective liaison and consultation between schools and centres for education, patrons, teachers, the community served by schools, local authorities, health boards, persons or groups of persons who have a special interest in or experience of the education of students with special educational needs and the Minister.


The Act makes it the function of the Minister under Section 7 to:
provide funding to each recognised school, and centre for education and to provide support services
make all reasonable efforts to consult with persons who have special interest in/experience of education of students with special ed. needs.

Section 7 of that Act has not been pleaded in various cases, most particularly in the Sinnott case, and subsequent litigants have been reluctant to rely solely on the legislation.


Special Needs Assessments

1. How do I get my child assessed?

If the child is a student:
1.    Section 3 (2) obliges a Principal to take the measures to meet the educational needs of a particular child, who in the Principal's opinion, is not benefiting from the education programme in the school to the extent that would be expected of children who do not have special educational needs.  This opinion can be formed by parents notifying the Principal that they hold that same opinion.

2.    Section 4 (2) places obligations on the National Council for Special Education (NCSE) in respect of a child who is a student to cause an assessment to be carried out where the opinion is held that the child may have special educational needs. Section 4 (3) also provides that parents who believe that their child may have special educational needs may make this request to the NCSE. This decision can be appealed to the Special Education Appeals Board in some circumstances.  

If the child is not a student:
1.    Where a Health Board is of the opinion that a child, who is not a student, may have special educational needs Section 4 (1) obliges the Board to cause an assessment to be carried out in such circumstances. Section 4 (3) also provides that parents who believe that their child may have special educational needs may make this request of the Health Board This decision can be appealed to the Special Education Appeals Board in some circumstances.  

2. Who assesses my child?

The assessment is carried out with the assistance of persons possessing such expertise as is considered appropriate by either the school Principal, the Health Board, or the Council.  

3. May I participate in the assessment?

Parents may participate in the assessment of a child, "in a manner that is consistent with the assessment being carried out effectively"

Education Plans

1. Who prepares the Education Plan?

1. School based plan may be prepared (Section 3) or
2. Council prepared plan (Section 8). This occurs in more severe and complex cases where the Principal feels that an education plan prepared in this way, will not meet the child's special educational needs. Section 3 (11) obliges them to request the National Council for Special Education to prepare the plan under Section 8.  Section 8 (1) requires the Council to direct the relevant special educational needs organiser, to cause an education to be prepared in respect of that child.

The Education Plan gives rise to a right to receive a special education and related support services which are specified therein.

Content: Section 9 (1) entitles the Council to publish a notice from time to time setting out the form that educational plans should take.  Section 9 (2) sets out a list of items which should be included in the plan itself.  
Review: Section 11(1), provision is made for the periodic review of educational plans, and obliges Principal to review the operation of plans at regular intervals of not less than 1 year.



National Council for Special Education

Established under Section 19 of the 2004 Act.

Role: assessment and preparation of education plans as well as various functions set out at Section 20.  Co-ordination, monitoring and review of special education and provision, consultation with interested parties, the provision and dissemination of information, and the commissioning and conduct of research.  

Special Education Appeals Board

Established under Section 36 of the 2004 Act.

Role: to deal with a broad range of disputes relating to the provisions of the 2004 Act.  

Appeals may be brought to the SEAB in respect of a wide range of issues, eg:

  • the refusal by the Council to arrange for an assessment, following request by Principal;  
  • a refusal by the Council to arrange for the preparation of an education plan following a request by Principal;  
  • an assessment on the grounds that it was not carried out in a manner which conform to the standards determined under the Act;  
  • the designation of a particular school in a child's education plan, and a failure to implement an educational plan or any part thereof.  

An appeal can be brought by a particular school Principal, by the parents, or by way of appeal brought by a Board of Management.  


People with disabilities of all ages are entitled to apply to a Health Board for an independent assessment of need relating to their disabilities pursuant to Section 9.  Such assessments are to be carried out without regard to the cost of, or the capacity to provide any service identified in the assessment as being appropriate to meet the needs of the applicant concerned, as provided under Section 8 (5).  

If the assessment concludes that educational services are appropriate for the applicant concerned, the Chief Executive of the Health Board is obliged to arrange for the preparation of a "service statement", specifying the services to be provided.  

Despite the far reaching provisions of Section 8 (5) these are substantially weakened and undermined by the provisions relating to resources set out under Section 5.  


Section 3: Expulsion, Suspension and Refusal to Enrol


1.    Expulsion and Suspension

A.    PROCEDURES

Expulsion

Expulsion is the most severe sanction available to a school against a student. It should only be imposed for very serious breaches of school rules or in cases where the rights of a greater number of students are being denied because of the continual disruptive behaviour of an individual.

Who may expel?

The Principal has power, for any cause which s/he judges adequate, to dismiss a pupil, subject to the approval of the Board of Management.

Process of expulsion

Should be clearly set out in the policy statement and conform in every way to the requirements of natural justice.

Procedures before BOM in an expulsion
(i)    If the Principal decides to recommend to the Board of Management that the student be expelled, s/he must inform the student’s parents in writing of the decision, the reason/s for it and of their right to make representations to the Board of Management on behalf of the student. In the interest of the student, parents should be required to give notice to the Secretary of the Board of Management of their intention to make such representations no later than a specified date to enable an early hearing by the Board of Management.

(ii)    Arrangements should be made at the earliest possible date for a joint meeting of the Board of Management with the Principal and the parents. The recommendation of the Principal and the representations (if requested) of the parents should be heard by the Board at this meeting. No new evidence or information which had not previously been made known to the parents should be introduced at this meeting.  The student may need to stand suspended from school pending the decision of the Board of Management.

(iii)    If the recommendation of the Principal is rejected, it is a matter for the Board to decide on what conditions, if any, the student will be allowed back to school.

(iv)    If the recommendation of the Principal is approved the parents or, (in the case of a student over 18 years) the student must be informed of their right to appeal the decision to the Secretary General of the Department of Education and Science under Section 29 of the Education Act, 1998.

(v)    Where a Board of Management has taken the decision to expel a student, it is obliged to notify the designated educational welfare officer of its opinion and the reasons therefor. A student shall not be considered expelled before the passing of 20 school days from the receipt of such notification by the educational welfare officer. The Board is obliged to co-operate fully with the educational welfare officer in the fulfilment of his/her duties under section 24 of the Education (Welfare) Act, 2000.

(vi)    The Education Welfare Officer NEWB has the right, under section 29 of the Education Act, 1998, to appeal a decision of the Board of Management to expel and, in the event that such an appeal is initiated by a parent or student, to make submissions to the appeals committee.

(vii)    The School is advised to assist in finding a place in another school for a dismissed pupil, particularly if the pupil is under school-leaving age.

Suspension

Definition
Suspension is the withdrawal of permission from a pupil to attend school for a specified period of time or pending the completion of a particular event or instruction. Its effect on the educational progress of a student should be carefully considered within the context of the school’s Code of Behaviour.

Period of Suspension
The period of suspension must be limited and must have regard to the need to ensure that the pupil can reasonably resume his/her studies on the completion of the suspension. Suspension for an indefinite period, or ‘open ended’ suspensions may be seen to constitute expulsion and may be challenged.

Obligations and Time Limits
It should be noted that the Principal of the school is obliged under Section 21 of the Education (Welfare) Act 2000 to inform the Educational Welfare Officer in writing if a pupil is suspended for 6 days or more. All suspensions should be reported to the Board of Management.

Who may suspend?
The authority to suspend a pupil rests with the Principal of the school subject to the right of the parents (or of a pupil who is over 18 years) to appeal to the Board of Management. This authority may be delegated in very limited and specific circumstances to senior management personnel.

Suspension as a sanction.
Suspension is a serious sanction and should only be imposed where other efforts to resolve a disciplinary situation have failed or where the nature of an incident dictates that the student be removed from the school immediately.

Suspension procedure
Clear procedures for suspension must be agreed and set out within the policy statement:
  • Parents must be informed, in writing, of the reasons for the suspension, the period of the suspension and the requirements which must be fulfilled to gain reinstatement.
  • Parents must be informed of their right to appeal the decision to suspend and procedures to be followed in making such an appeal.
  • Pupils should not be dismissed from school unless and until arrangements are made for their safe return to the care of their families.
  • Records must be kept of all meetings and/or phone calls in connection with the suspension.


B.LAW

Statutes

Education Act 1998
Section 15(2)(d):  The Board of Management must publish policy of the school concerning admission to and participation in the school, including the policy of the school relating to expulsion and suspension of students

Education (Welfare) Act 2000
Section 23: Board of Management obliged to publish and disseminate to parents and pupils the Code of Behaviour to be observed by all pupils in the school including:
-    the procedures to be followed before a student may be suspended or expelled from the school [Section 23(2)(c)]
-    the grounds for removing a suspension imposed in relation to a student [Section 23(2)(d)]

Section 24: Sets out the statutory obligations which must be observed by the Board of Management in expelling a pupil from school.
  1. Where a Board of Management or "a person acting on its behalf" believes that a student should be expelled it must before, doing so, inform the Educational Welfare Officer of this belief and the reason for so believing.
  2. The Educational Welfare Officer must consult with the Principal (or his/her nominee), the student and his/her parents and other appropriate persons, and convene a meeting of those willing to attend.
  3. A student may not be expelled for 20 days after the Educational Welfare Officer receives this notification.
  4. A Board has the right to take such reasonable measures as it considers appropriate "to ensure that good order and discipline are maintained …. and the safety of students is secured during this twenty day period."



Requirements of Natural Justice (Constitution)

1. Audi alteram partem
You should be given an opportunity to have your side of the case heard.

2. Nemo iudex in causa sua
No one should judge the case if there is a reasonable apprehension that they will be biased.

(i)    When the Board has heard all of the evidence, the parents and/or their representative/s and the Principal must withdraw to allow the Board to consider the case. Even though the Principal is a member of the Board, s/he may not be party to the consideration of the case as s/he is an involved party. Further the Board should ensure that any member of the Board who might have a conflicting interest should be excused and not participate in the decision

(ii)    To ensure its independence as the final authority in the case, the Board of Management must not be involved in the process leading to the decision of the Principal to recommend the expulsion of the student.

3. Fair Hearing
General principles: prior notice to affected parties, allegation of wrongdoing should be made to affected person(s) prior to determination with such person(s) allowed to challenge the allegation made against them
The doctrine of "well-knew"- Gallagher v The Revenue Commissioners (No. 1) [1991] 2 IR 370 which concerned the suspension of a Customs and Excise officer. Blayney J. (at 374), whilst accepting that the principles of natural justice meant that the person suspended should be informed as to the reasons why, held that an exception may occur where he "well knew why he had been suspended"

(i)    The parents are entitled to seek access to the student’s file and to documentation relevant to the expulsion. If the Principal, for whatever reason, refuses to hand over copies of documentation, the parents may subsequently have a legitimate complaint that full details of the 'case to answer' were not furnished in advance. 

(ii)    The case against the student should be put to her/him and s/he should be given an opportunity to respond. The parents should be informed of the grounds upon which expulsion is being considered, and the nature of the evidence being relied upon. It is accepted that the quality of proof required for expulsion need not be of the quality required in a Court of Law.

(iii)    The parents should also be provided with a fair opportunity to consider the evidence and to offer evidence in rebuttal.


4. The Right to an Oral Hearing
  • Frenchurch Properties Ltd. v Wexford County Council [1992] 2 IR 268

5. The Right to Cross-Examine
  • Where appropriate and necessary.

6. The Right to Legal Representation
  • Not an absolute right

7. The Obligation to Give Reasons
  • State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51

8. The Right to a Public Hearing
  • Barry v Medical Council, Unreported, High Court, February 11, 1997


Appeal procedure under Section 29 of the Education Act 1998

Currently, Section 29 of the Education Act provides that the following decisions may be appealed to the Secretary General of the DES:    
(i)    Permanent exclusion from a school;
(ii)    Suspension for a period which would bring the cumulative period of suspension to 20 school days or longer in any one school year; or
(iii)    Refusal to enrol

Appeals must generally be made within 42 calendar days from the date the decision of the school was notified to the parent or student. Accordingly, schools should advise parents of this right of appeal and associated timeframe when informing them of any of the above categories of decisions.

There are three layers to the procedures for processing these appeals:
(a)    Both parties are asked in the first instance to see if an accommodation can be reached at local level;
(b)    Should that fail, and where the Appeals Committee considers that it may be possible to facilitate agreement between the appellant and school, a facilitator will be appointed to contact the parties at the earliest opportunity;
(c)    Finally, an appeal may be referred for hearing by an Appeals Committee established by the Minister for Education and Science.





Section 4: Equality Acts 2000-2004

What does it cover?
This covers pre-school, primary or post primary schools, adult, continuing or further education, university or other third level or high level institutions public or private.

What is Prohibited?

An educational institution shall not discriminate in relation to :
a)    admission or the terms and conditions of admission
b)    the access of any student to any course, facility or benefit
c)    any other term or condition of participation
d)    the expulsion of a student or other sanction

The prohibited grounds for discrimination are:
Gender, marital status, family status, sexual orientation, religion, age, disability, race, membership of the Travelling Community.

Exemptions
There are exemptions in relation to gender and religion.

How do we apply?
A notification must go the school within 2 months of the date of the discriminatory incident. The case must be lodged within 6 months of the date of the discriminatory incident. www.equalitytribunal.ie