11. My child is mentally handicapped and I have applied for a place for him at a mainstream kindergarten. The kindergarten eventually rejected me. Has the kindergarten contravened the Disability Discrimination Ordinance? If my child is admitted, does the kindergarten have a responsibility to provide special services or facilities to help him with his studies?

11. My child is mentally handicapped and I have applied for a place for him at a mainstream kindergarten. The kindergarten eventually rejected me. Has the kindergarten contravened the Disability Discrimination Ordinance? If my child is admitted, does the kindergarten have a responsibility to provide special services or facilities to help him with his studies?

As mentioned before, the definition of disability under the DDO includes the total or partial loss of a person's mental functions. This includes a mental handicap and thus you and your child are protected under the DDO. With reference to section 24 of the DDO, it is unlawful for an educational establishment (including a kindergarten) to refuse the admission of a child because of his/her disability, unless the child is not capable of performing the actions or activities reasonably required by the educational establishment in relation to students at that educational establishment.

Clause 13 of the Code of Practice on Education under the DDO (issued by the Equal Opportunities Commission) has set out some guidelines regarding admission and selection criteria. The most important of these guidelines is that educational establishments should assess the competence of applicants with disabilities using the same standard that they use for applicants without disabilities. In addition, all applicants (with or without disabilities) should go through the same selection process. Educational establishments should avoid adopting separate forms or selection panels for applicants with disabilities, unless a need for special arrangements has been identified.

If your child is admitted, the kindergarten has the responsibility to provide some special services or facilities for him in order to help him study. However, the kindergarten may refuse to provide such services or facilities if they would impose unjustifiable hardship on the kindergarten. For example, it is lawful for the kindergarten not to provide extra classes or visual aids to help your child if the kindergarten does not have adequate human and financial resources to do so.

For a more detailed explanation of what can be considered "unjustifiable hardship", please refer to clause 12.3 of the Code of Practice or section 4 of the DDO.