No. 07-00-501/2018-02 Date: 22 October 2018

OPINION

This Opinion was issued in a procedure following a complaint filed by R. L. and M. I. from B, on behalf of minor son K. L against Preschool Institution “A” N. B. In the complaint is stated that PI “A” N. B. refuses to create an Individual Educational Plan (IEP) for their son K. L. who has developmental difficulties and attends senior kindergarten, that the educators mostly left the child to spend his time in an unstructured way without giving instructions to his personal companion, that they were inadequately and untimely informed about the conditions for going to the recreation class, that it is possible to bring only juice and “Plazma” biscuits to birthday celebrations in the kindergarten, which discriminates all children who have special nutrient needs based on their health status and poor children, as well as that K.L. was not included in the preparation of the final show for parents from the beginning. In the statement of PI “A” N. B. is, among other things, stated that the expert’s opinion of the institution’s team is that results and expectations are fulfilled even without the development of a formal IEP because the pedagogical profile and the individualisation plan are integrated into everyday educational work and that the child has recorded progress, and that, in the opinion of the Commission for the assessment of the needs for providing additional educational, health or social support to the child, it was not indicated that it is necessary to create a IEP for the child. It was also stated that the pedagogical profile for K. L. was made in March 2016, that the last evaluation of the pedagogical profile was made on 9 May 2018, and that the pedagogical profile contains subtitle “individualisation measures” which are, in the further text in column “needs for support”, specified and explained. It is further stated that, due to the frequent occurrence of food allergies with children, a recommendation was made for preventative reasons and health safety that, in case of birthday celebrations in the kindergartens of this preschool institution, only juice and “Plazma” biscuits can be brought, which are also part of the institution’s menu. It was stated that the preparations for the show were made on a daily basis in the afternoon and that K. L. participated in all rehearsals and in all other activities and that his personal assistant at that time was present with him. It was also stated that all the information about the trip and stay of children was timely posted for parents on the informative panel, that child K. L. was signed up for the recreation class and that his mother cancelled his participation before the trip. During the course of the procedure was determined that the opinion of the Expert Team for Inclusive Education is that it is not necessary to create an IEP considering that they believe that results and expectations are fulfilled with the individualised manner of working with children and that the opinion of the Commission for the assessment of the needs for providing additional educational, health or social support to the child is that there is a need to create an IEP for attending the preparatory preschool program. It was further determined that the preschool institution did not submit a plan of measures for the removal of physical and communication barriers in accordance with the Rulebook on detailed instructions for determining the right to an individual educational plan, its application and evaluation, i.e. filled in Form 1 to prove that the plan was made. They also did not submit any other document based on which it would be possible to determine what methods and manner of work are planned to be implemented for the purpose of obtaining the necessary support, or the period of execution of the planned measure and a responsible person who would monitor implementation of the support measure. During the procedure, statements were made by the witnesses who were child’s personal companions and who stated that there was no plan and program of work for the child defined by the preschool institution which he is attending and that it happened several times that, during the time the child spent in the group, his personal companion herself was responsible for planning his activities. It was further determined that the child participated in the preparation of the final show only in the last week and that the PI did not provide evidence to support the allegations that the child had previously been involved. It was found that information on the recreation class was available to the parents via social network Viber, that child K. L. was on the list of registered children for the recreation class and that on 17 May 2018, the day before the trip, his mother informed the PI that the child would not travel. It was also found that the restriction to bring to the institution only food that is already on the kindergarten’s menu is justified by the legitimate goal of child’s health safety, however, that the limitation to juice and “Plasma” biscuits is not appropriate and necessary for achieving this goal. Some other type of food could be chosen from the institution’s menu which the children with specific nutrient needs could consume or which could be consumed by all the children without a risk to their health. After conducting the procedure, the Commissioner for the Protection of Equality was of an opinion that the institution did not violate the provisions of the Law on the Prohibition of Discrimination by not creating an Individual Education Plan for child K. L. while he was attending senior kindergarten and that it did not deny the child the possibility to attend the recreation class on mountain Tara. The Commissioner was also of an opinion that by introducing the rule to only bring juice and “Plazma” biscuits to birthday celebrations in the kindergarten, PI “A” N.B. put children with specific nutrient needs in an unfavourable position during birthday celebrations in the kindergarten and, thereby, violated the provisions of Article 7 of the Law on the Prohibition of Discrimination and that by failing to provide all the necessary support to child K. L. through the individualised mode of work and an adequate approach to the child, PI “A” N. B. violated the provisions of Art. 6 and 19 of the Law on the Prohibition of Discrimination. Therefore, PI “A” N. B. was recommended to plan measures for the removal of physical and communication barriers (individualised method of work) in the preschool institution by specifying the necessary measures/types of support, a brief description of these measures, persons who execute and monitor these measures and deadlines for the implementation and monitoring of measures for child K. L. by taking into consideration the opinion of the inter-ministerial commission, as well as by taking other necessary measures to timely plan and provide support to boy K. L. in accordance with his age and development needs, by approving only food on birthday celebrations in the kindergarten which is on the kindergarten’s menu and which can be consumed by all children or by establishing a rule that no food can be brought to birthday celebrations in the kindergarten, as well as by taking care not to violate legal regulations on the prohibition of discrimination in the execution of its regular tasks and activities in the future.