CASE LAW: Swedish municipality liable for disability discrimination through deficient accessibility in elementary school

Sebastian Häregård, 14, was illegally discriminated against in his school Nästegårdsskolan in Vara municipality, Sweden. The municipality had failed to take measures for accessibility that are required. Deficient ramps and heavy doors which had not been rectified was sufficient to conclude that Sebastian had not been put in a comparable situation to pupils without his impairment.

The Discrimination Ombudsman (DO) sued the municipality for illegal discrimination in the form of deficient accessibility (Discrimination act 2008:567, 1:4 3p.). The Skaraborg District Court judgment was delivered on May 24 2017 (case no T-2447-16), establishing that the municipality is obliged to pay 30 000 SEK to Sebastian as compensation for discrimination. 

The DO has appealed the judgment to the Göta Court of Appeals because the claimed amount of 75 000 SEK was not fully granted to Sebastian. The municipality now has the opportunity to appeal the case as whole in connection to the appeal concerning the remainder of the claimed amount. The Court of Appeals then has to grant a review permit before trying the case in substance.

The procedure and reasoning of the Court

The lawsuit was brought by the DO to the District Court in July 2016. Written correspondence was sent between the parties, and in November they failed to reach a friendly settlement at the preparatory hearing. The main hearings were on May 3 2017. Independent Living Institute attended the main hearings and met with the parties and Sebastian.

In the judgment of May 24 2017, the District Court gave reasons for its decision. The first thing it tried was if Sebastian had been put in a comparable situation to pupils without his impairment. The District Court found that the schooling of Sebastian had been negatively affected by the shortcomings in terms of accessibility in the elementary school, in particular ramps, landings and absence of door openers. To access the school buildings, he had to rely on help from schoolmates and staff to open doors without risk for his safety. Often he relied on himself to move in and out of the school, leaving him to security risks and feelings including lowered self-worth, dreading going to class on bad ramps, and having energy taken from learning to worrying. Therefore, the District Court found that he had not been put in a comparable situation to pupils without his impairment.

The District Court proceeded to try if the municipality had omitted to take reasonable measures, which would have made the school accessible and put Sebastian in a comparable situation to pupils without his impairment. The circumstances that the municipality had prioritised leaking roofs and bad windows, and that there was uncertainty for some time whether the school should stay open or not, were not accepted by the district court as legitimate reasons to omit taking reasonable measures for accessibility. 

Further, the municipality had knowledge of the insufficiencies for a long time, including from January 1 2015 to the end of the spring semester of 2016, which is the period in question in the case. The District Court therefore found that the municipality had not taken measures that can be demanded to increase the accessibility at the elementary school.

In conclusion, the District Court found that Sebastian had been illegally discriminated against in the form of deficient accessibility in contravention of the prohibition of discrimination in education. Therefore, he was found entitled to discrimination compensation from the municipality for the violation that the discrimination has caused him.

The District Court found that the municipality had practical and economic preconditions to take measures against the deficiencies in the accessibility. The fact that Sebastian has “felt discomfort and worry” due to the deficiencies over a long time led the District Court to rule damages comprising of 30 000 SEK to him.

Comment by Independent Living Institute

Ola Linder, lawyer at the Independent Living Institute, finds the decision materially correct to the extent that the District Court has taken into consideration Sebastian’s story on how the municipality has omitted to take measures for accessibility, which has affected his schooling negatively.

- It is most welcome that the argumentation of the municipality about economic room of manoeuvre is not accepted by the court as a reason for the municipality to not take reasonable measures for accessibility, says Ola Linder. 

- Finally, the long struggle by civil society for inaccessibility as a form of discrimination has resulted in a positive judgment. The reasons given by the court were however slim on the determination of the discrimination compensation. It is therefore interesting that the DO has appealed the decision in that part. Hopefully the Göta Court of Appeals will take the case and strengthen the reasoning, and thereby creating a well-reasoned precedent.

Independent Living Institute will continue monitoring and analysing the case.