The Human Rights Ombudsman believes that individuals must be enabled to take the matura exams with adjustments according to their disabilities, impairments, or disorders; otherwise, the rights protected by the Convention on the Rights of Persons with Disabilities, Article 4 of the ZMat, and Article 11 of the ZIMI can be interfered with. If, however, subordinate acts hinder the enabling of adjustments, they need to be changed, since they are otherwise contrary to the provision of Article 120 of the Constitution of the Republic of Slovenia. The Ombudsman suggested that adjustments be made to enable this student to sit the matura exams, but his proposal was not accepted. However, later, the Advocate of the Principle of Equality recognised discrimination in this same question and gave a recommendation for the solution of the problem to the competent authorities.

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Based on a complaint, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) alerted the Ministry of Education (MVI) and the National Committee for the General Matura (DK SM) about the situation of a student prior to taking the matura exams. She turned to him because she had encountered problems with the adjustment made during the exams, which she unsuccessfully claimed with the available legal remedies.

The Ombudsman asked the MVI and DK SM why adjustments, which in the opinion of various experts significantly help this student and which the school has provided to the student with great success during her high-school schooling, are not foreseen as possible adjustments during the matura exams. The Ombudsman also wished to know the substantive reasons why the desired adjustments should not be used by the student during the matura exams. The Ombudsman called upon both addressees that, in the case of potential absence of substantive reasons for the ban on the use of the desired adjustment, they research the possibility that a specific solution be adopted in the form of an adjustment for the student with apparently especially specific problems that would allow her results in the matura exam to reflect solely her knowledge and skills.

The Ombudsman received the answers from the MVI and the DK SM no. 0120-1/2023 of 22/5/2023, which (in summary) stated that only adjustments for an individual group of candidates with special needs are possible, which are defined in the Table of possible adjustments to the method of conducting matura examinations for candidates with special needs (Table). The Table does not include the use of reading foils or dark blue paper, since the experts think that there is insufficient evidence supporting the existence of so-called Irlen syndrome, and also not any proof about the effectiveness of colour filters in dealing with problems connected to the mentioned syndrome; the syndrome is not listed in the international classification of illnesses. It also derives from the experts’ standpoint that “any statement, advertising, or representation of so-called Irlen syndrome as a medical diagnosis and associated profitable “treatment” with colour filters that supposedly easy the troubles is misleading and can even be dangerous,” and also that it would be irresponsible to acknowledge the suggested accessories, since problems ascribed to the syndrome can be symptoms of significant health issues with potentially serious consequences, which demand appropriate professional treatment.

From these clarifications the Ombudsman did not receive an answer to the question about the substantive reasons that the desired adjustments should not be used by the candidate. The Ombudsman estimated that the use of accessories is not possible for formal reasons because they are not foreseen in the subordinate act. The Ombudsman also discerned that the diagnosis of so-called Irlen syndrome cannot be defined since there is not (yet?) enough scientific evidence. The Ombudsman understood that the profession believes that it could be dangerous and irresponsible if, upon recognising the symptoms attributed to the syndrome, one deviates from further professional treatment and the search for and treatment of the true causes of the symptoms, as this could lead to medical problems with potentially serious consequences being overlooked. In the Ombudsman's opinion, such content of the profession's opinion is undoubtedly extremely important for all experts who treat children or persons with such symptoms, but the Ombudsman did not recognise the connection between the profession's opinion and the justification of substantive reasons why such "non-scientific" help should not be used when taking the matura exams.

In accordance with the provisions of the Matura Examination Act (ZMat), the method of taking the matura exams must, of course, be adapted to all candidates with special needs who have been directed to educational programmes by a decision on orientation, taking into account the content of the decision on orientation. Additionally, in justified cases, adjustments are made available to all other candidates, based on their disabilities, impairments, or disorders. The aforementioned legal regulation is undoubtedly also a derivative of the provisions of the Convention on the Rights of Persons with Disabilities, which obliges the signatory states to provide appropriate adjustments in relation to the individual's needs when exercising the right to education. A reasonable adjustment is defined as a necessary and appropriate change and an adjustment that does not impose a disproportionate or unnecessary burden when in an individual case they are necessary to ensure the enjoyment or realisation of all human rights and fundamental freedoms on the same basis as others. The same commitment also derives from the provision of Article 11 of the Equalisation of Opportunities for Persons with Disabilities Act (ZIMI).

According to the Ombudsman, adjustments can take very different forms, and appropriate flexibility and creativity in choosing and enabling adjustments are also of the utmost importance. Specifically, regarding the adjustments that allow matura candidates to complete their matura exams in a way that enables the matura result to be a reflection of the candidate's actual knowledge and readiness to the greatest extent possible, and not of potential disabilities, impairments, or disorders. The Ombudsman believes that it is possible to distinguish between adjustments that inherently place the candidate in a more favourable position than other candidates (longer time for taking the exam, interruption during the exam, inclusion of an assistant, use of a special room, exclusion of individual tasks, adapted assessment, priority in the order, and the like), whereby the apparent advantage is intended only to compensate for the candidate's disabilities, impairments, or disorders and thus only to equalise the starting conditions. In these cases, it is crucial that the conditions are stricter and that the adjustments are actually tied to the candidate's scientifically established disabilities, impairments, or disorders. Otherwise, an unauthorised advantage of the candidate over others could occur. However, the situation is different when the nature of the adjustments is such that it does not give the candidate any advantage over other candidates, especially when the candidates can take care of the necessary adjustments themselves and this does not create additional costs or burdens. In this case, according to the Ombudsman, a significantly higher level of flexibility on the part of decision-makers and sympathy for candidates is required in cases where there is doubt about the existence of a disability, impairment, or disorder.

In this specific case, the Ombudsman accepts as indisputable the fact that science and the profession do not (yet?) recognise so-called Irlen syndrome, although the Ombudsman understands the position of the profession in such a way that the possibility of the existence of such a syndrome is also not (yet?) refuted. However, it is clear from the examined documentation that there are obviously people with symptoms that cause them problems when reading texts (disabilities, impairments, or disorders), regardless of what (which medical diagnosis) the actual reasons for these symptoms are. The experience of some teachers indicates also that with this type of symptoms an improvement can be achieved with the use of coloured paper or foils. Most certainly, such experience cannot replace scientific findings, but, according to the Ombudsman, at least until adequate scientific clarification of the causes of such symptoms, they cannot be simply dismissed by stating that they are not scientifically proven. A person who experiences problems empirically does not need scientific proof for the existence of their problems.

The Ombudsman believes that it is necessary through appropriate scientific research work to research and find answers to the questions of what causes such problems for individuals and how to eliminate them or at least mitigate them; until such time that all the necessary answers are obtained, as mentioned, according to the Ombudsman, a greater degree of flexibility and benevolence is necessary, which will nevertheless enable individuals with scientifically unproven problems to more easily overcome difficulties in accessing the matura exams, even more so in cases when this does not give the candidate any advantage over other candidates and no additional costs or any inconveniences are caused to anyone. Otherwise, according to the Ombudsman, there may be interference with the rights that are protected under the Convention on the Rights of Persons with Disabilities, Article 4 of the ZMat, and Article 11 of the ZIMI. If, however, subordinate acts hinder the enabling of adjustments, the Ombudsman believes that they need to be changed, since they are otherwise contrary to the provision of Article 120 of the Constitution of the Republic of Slovenia.

The Ombudsman suggested that appropriate adjustments are made available for this student for the matura exams, but his proposal was not accepted. However, the Advocate of the Principle of Equality later recognised discrimination in this same question and gave a recommendation to the competent authorities for the solution of the problem. 19.1-18/2023