Complainant 201947 v The Australian Capital Territory (As Represented BY Act Education Directorate)
[2021] ACAT 5
•29 January 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT 201947 v THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY ACT EDUCATION DIRECTORATE) (Discrimination) [2021] ACAT 5
DT 47/2019
Catchwords: DISCRMINATION – disability – whether the respondent directly or indirectly discriminated against the student or his father – whether arranging for reduced hours at school demonstrated that the respondent proposed to treat the student unfavourably – whether failure to have a dedicated Learning Support Assistant amounted to discrimination – whether the respondent failed to provide a safe environment and whether this amounted to discrimination – whether there was a failure of appropriate learning strategies and whether this amounted to discrimination – application dismissed
Legislation cited: Discrimination Act 1991 ss 7, 8, 18, 27
Human Rights Commission Act 2005 ss 27A, 53A
Cases cited:Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Prezzi v Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales [2003] HCA 62
Tribunal:Senior Member M Brennan
Member L McGlynn
Date of Orders: 29 January 2021
Date of Reasons for Decision: 29 January 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 47/2019
BETWEEN:
COMPLAINANT 201947
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY ACT EDUCATION DIRECTORATE)
Respondent
TRIBUNAL:Senior Member M Brennan
Member L McGlynn
DATE:29 January 2021
ORDER
The Tribunal orders that:
The application is dismissed.
Pursuant to section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008, there is to be:
(a)no publication of the names of the applicant, the applicant’s spouse, the applicant’s children, other children at the school that is the subject of the complaint; the school involved with the complaint and the applicant’s children’s previous school; and
(b)no public access to the file.
………………………………..
Senior Member M Brennan
For and on behalf of the Tribunal
REASONS FOR DECISION
This case concerns whether a primary school (the school) run by staff employed by the ACT’s Education Directorate (the respondent) discriminated against a pupil, H, and his father (the applicant) during the first two terms of 2019. H has a disability which is admitted by the respondent. He suffers from epilepsy, fine motor delays and has a generalized anxiety disorder and post-traumatic stress disorder. He is no longer a pupil at the school.
After assessing that conciliation was unlikely to be successful as a means of resolving the applicant’s complaint against the respondent, the ACT Human Rights Commission referred the matter to this Tribunal under section 53A of the Human Rights Commission Act 2005 (the HRC Act) on 17 December 2019.
The complaint
The applicant filed detailed Particulars of Complaint (the complaint) on 8 April 2020. The complaint alleges that the respondent engaged in direct discrimination against his son and provides four specific grounds. These grounds are that the respondent: imposed a regime of short hours on H; failed to provide a teacher’s aide or learning support assistant (LSA) during term 1; failed to provide a safe learning environment and failed to follow appropriate learning strategies for H.
The applicant also claims that he was indirectly discriminated against due to the respondent’s actions in imposing a regime of short hours on H and failing to provide a teacher’s aide or LSA during term 1.
In an email accompanying the complaint, the applicant seeks that ACAT orders:
(i) With respect to the complaint of discrimination against myself as my son’s carer, damages for economic loss;
(ii) With respect to the complaint of discrimination against my son, declaratory relief.
In final submissions to the Tribunal, the applicant advised that the forms of discrimination against him and his son all “relate[d] to indirect discrimination.”[1]
[1] Transcript of proceedings 7 September 2020 page 308, line 36
When the Tribunal queried this, noting the complaint alleged direct discrimination against H, the applicant advised he did not “believe there’s grounds for direct discrimination. I think it’s indirect discrimination.”
In closing submissions, the respondent’s counsel expressed surprise at the applicant’s reliance solely on indirect discrimination and observed “it’s open to the Tribunal to come to its own view about which category it falls into.”[2]
Background
[2] Transcript of proceedings 24 August 2020 page 329, line 4
The applicant’s son H joined the school as a year 4 pupil in the last two weeks of term 3 in 2018. Prior to this, H had attended another school in NSW which the applicant said he had attended full time since kindergarten. When H began at the school, he attended part time until the October school holidays. The applicant said this was to help with his son’s adjustment, which was agreed by the parties. In term 4 of 2018, H attended approximately 19 full days that term.[3] H also attended frequently for reduced days. The absence record shows him leaving school for the day between 1:00pm and 1:30pm on several occasions or being absent for two to three hours during the day. Exhibit A2 is a diagram which notes H’s “planned hours at school” were six or full time, for fourth term.
[3] Exhibit R5
Prior to the start of the school year in 2019, the applicant and H met with his new teacher (the Teacher). H initially attended school for one hour per day. This increased to two to three hours. From mid-February, the applicant and his spouse pressed that H attend school for longer periods.
In March 2019 H started to be schooled at home undertaking class activities set by his teacher. The applicant advised the school that this was due to his and his wife’s concerns about H’s safety at school and the lack of school resources supporting him. During this time the applicant and his spouse continued to keep in contact with H’s class learning through an online portal and regular communication with his teacher. H returned to the school on 26 June 2019. The school proposed that H’s hours of attendance increase from two hours to a full day by 25 July 2019, noting there was a two week school holiday period in the middle of this time.
After H’s first day back at school the applicant emailed the deputy principal, (the Deputy Principal) and other employees of the respondent. From the email, it appears that H attended school for most of the day. The applicant raised H being given an iPad to use for several hours. Thereafter, followed several emails between the applicant, H’s mother, the school and other employees of the respondent regarding H’s computer and iPad use. H’s last day at the school was 1 July 2019.
The hearing
The case was heard on 24 and 25 August and 4 and 7 September 2020.
The evidence
The applicant tendered a summary of communications between him and/or his spouse with the respondent which purports to summarise telephone calls, emails and meetings about H’s attendance at school. Attached to the summary are approximately 100 pages of emails, meeting records and other documents emailed between the parties.
During the hearing he tendered two other documents. The applicant also gave evidence and was cross-examined.
The respondent tendered witness statements from the principal of the school (the Principal), the Deputy Principal and the Teacher. It also tendered numerous records during the hearing which included photos, floor plans and building modifications of the school and various learning and safety plans for H.
Issues for determination
The issues for determination by the Tribunal are whether the respondent directly or indirectly discriminated against H in all or any of the four grounds detailed in the complaint and indirectly discriminated against the applicant in respect of two alleged grounds.
There is no dispute that H has a disability which is a protected attribute under section 7(1)(e) of the Discrimination Act 1991 (the Act). Further, the applicant, as his father, also has a protected attribute under section 7(1)(m) of the Act, in being a parent of a child with disability.
Governing legislation
Section 8 of the Act details the meaning of discrimination. It provides:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes. [emphasis in original]
As noted, section 7(1)(e) of the Act lists ‘disability’ as a protected attribute. The definition of ‘disability’ in section 5AA(1)(g) is “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”
In the specific context of education, section 18 of the Act provides that:
(1) It is unlawful for an educational authority to discriminate against a person–
(a)by failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
…
(2) It is unlawful for an education authority to discriminate against a student–
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the authority; or
…
(c)by subjecting the student to any other detriment.
Finally, section 27 deals with “measures intended to achieve equality”. It provides:
(1) Part 3 [which includes section 18] does not make it unlawful to do an act if a purpose of the act is–
(a)to ensure that members of a relevant class of people have equal opportunities with other people; or
(b)to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class.
(2) However, subsection (1) does not make it lawful to do an act for a purpose mentioned in that subsection if the act discriminates against a member of the relevant class in a way that is not reasonable for the achievement of that purpose.
In the Federal Court decision of Edgley,[4] Beaumont ACJ reasoned in looking at the terms of section 8 that:[5]
the legislature intended to focus attention upon the following two quite different situations:
First, where a person is treated unfavourably by another because of an attribute… In other words s 8(1)(a) [now section 8(2)] is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards the person complaining of discrimination.
Secondly s 8 applies where, although particular conduct is not aimed at a complainant, it has, or is likely to have, the “effect” of disadvantaging him or her, because of an attribute.[6] [emphasis in original]
[4]Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
[5] The decision is prior to the Discrimination Act’s amendments including to section 8 but section 8 still contains substantially the same terms
[6] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [53]-[55]
His Honour added that the first type of discrimination, now described as ‘direct discrimination’ is conduct:
per se (i.e. of itself, whether reasonable or not) deemed to be discriminatory; whereas, by contrast, [indirect discrimination] conduct will be regarded as discriminatory only if it is unreasonable.[7]
[7] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [56]
Further, that direct and indirect discrimination are mutually exclusive.[8]
Application of governing legislation
Reduced school hours for H
[8] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [78]
The Deputy Principal’s evidence in chief included that after H met the Teacher before the start of term 1 2019 he appeared:
quite calm and relaxed. When [the applicant] and I had an initial conversation about a plan following that meeting [the applicant] was quite keen for [H] to have full days at school and so after we trialed that and it hadn’t been successful, we did discuss the strategy of shorter days for a short period of time to build those experiences of success back up.[9]
[9] Transcript of proceedings 4 September 2020 page 248, line 20
The Deputy Principal’s reference to H’s first days of school in 2019 being unsuccessful include events on the first day of the term. The Teacher reported that H threw stationary supplies around the classroom, stabbed the interactive whiteboard with a pair of scissors and upturned tables when she advised him that the class were not using Chromebooks and rather were going outside.[10]
[10] Exhibit R8 at [20]
On 8 February 2019 the Teacher contacted the applicant to discuss a plan for H’s next day at school. The plan included that H would start with five minutes of Duolingo on the iPad and then he could access some games. The next day the Teacher sat next to H and wrote on a post-it-note “first Duolingo Then games”. The Teacher’s evidence is that H became verbally abusive and aggressive and the students in the class were moved out of the classroom while the applicant supported H to leave the classroom. While in the corridor, H threw chairs at the Teacher until he was restrained by the applicant.[11]
[11] Exhibit R6 at [5]
The evidence tendered by the applicant indicates that on 14 February 2019 the Teacher provided a timetable proposing H’s attendance at school.[12] In reply, the applicant advised “Just to confirm we’re working with the plan this week.” He added:
Also as discussed with [the Deputy Principal] on Friday we see these arrangements working for a short period – and are keen to transition to in-school support for [H] so we can all get back to a good routine. So let’s talk at the weekly meeting… In the meantime developing a consistent weekly plan will help the whole family with stability so we can look after both of our children with needs and ourselves.
[12] Exhibit A1 (not paginated)
On 21 February 2019 the applicant emailed the Principal and Deputy Principal commenting that the week had been “very positive” for H but noted:
his ability to do so has been very much underpinned by my presence. That’s fine for transition but having a child’s father present is not a long term option. It is very clear to me that [H] can engage successfully in some situations where the adults give him a sense of safety and he has a parent present, but we need to transition fairly quickly to support coming from the staff if we are to rebuild his long-term relationship with the classroom...
Within an hour of the applicant’s email being sent, the Teacher emailed the applicant with H’s timetable for the following week which she noted was:
updated…to reflect our discussion during pottery. I colour coded green the activities that have worked to help us inform future planning and to help [H] celebrate the success he has had this week. Let me know your thoughts.
In responding to the applicant’s email, the Principal advised that they looked forward to hearing his thoughts about the plan tomorrow.
On 22 February 2019 the Teacher emailed the applicant and his spouse and provided a further “proposed timetable for H for week 4” and noted that she had taken:
on board [your] request yesterday for additional time at school. [H] will be connecting with learning support assistance throughout the week. We will plan for a 1 pm Thursday meeting…
The applicant replied on the same day and advised that:
The attached proposal isn’t sustainable for our family.… [H] needs academic engagement at his level. This needs to be provided at school. We are happy to support transition to a consistent support for [H] but can’t continue to operate day to day/week to week…
The material filed showed the difference in H’s time at school between weeks 3 and 4 was that he would start at 11am rather than 12:00 and that he would continue to finish school after lunch each day.
On Sunday 24 February 2019 the applicant emailed the Principal and advised:
I’m writing to let you know that I will be bringing [H] to school tomorrow morning at the usual start time for all students so that he can prepare for Japanese. The lessons that he has missed already this term are proving to be a barrier for his participation…
The applicant went on to explain that he had to attend a private appointment and that he was “very concerned about the complete lack of inclusive practice” last Friday. He explained H had attended school for chess and when this was cancelled due to a school assembly, H’s “experience of school on Friday was negative and exclusionary” as H was not part of this assembly. The applicant was critical of the:
suggested extensions of [H’s] timetable [for the week and stated], we are moving into week four of term and will not be supporting any exclusion application which we understand is required for any period of reduced hours for more than 5 weeks under the enrolment and attendance policy.
The applicant’s last sentence is a reference to the Education Participation (Enrolment & Attendance) Policy which requires that enrolled pupils must attend school on every day the school is open for attendance and all activities that the school requires the child to attend unless there is a reasonable excuse. Further, the policy details that the Director-General may issue an exemption certificate where a child is unable to meet the education participation requirements of the Education Act 2004 due to exceptional circumstances. The Exemption Certificates Procedure outlines the matters the Director-General may consider in issuing a certificate. It includes that a certificate is not required for a period of absence due to illness, other reasonable excuses or a graduated return to school or part-time attendance that is less than five weeks.
The Principal replied Sunday evening to the applicant’s email of the same day and confirmed that she would see the applicant and H the next day and that she and the Deputy Principal were available to:
review the Protective Action Plan we developed with you last year.… Thanks for keeping the channels of communication open, as we work together to meet the needs of [H]…
The correspondence between the school and the applicant and his spouse indicates there was a meeting on 26 February 2019 and following that the Teacher emailed a document to them on 6 March 2019 headed “individual learning plan” (ILP). The Teacher asked they confirm that it was an “accurate record of the meeting.”
The applicant’s spouse replied the next day. This email includes:
this is not an accurate reflection of our meeting – the goals in this plan (for completion by the end of 2019!) Don’t meet him at his level or recognize his capacity. We have not agreed to partial attendance and will not do so. We need a plan and resourcing to support [the applicant] withdrawing his support for [H] at school. This plan doesn’t reflect the timetable we have developed for his ongoing participation at school. We need appropriate adjustments and support throughout the day so that [H] can participate in the school and across the school. We spoke at length about adjustments for his fine motor deficits…
On 8 March 2019 the Teacher emailed the applicant and his spouse with a timetable for H “for next week.” She asked the applicant to indicate when he intended to be at school, adding “I have discussed with the Principal and the Deputy Principal and we will have an LSA working in the room throughout the week.”
This timetable allowed for H to be at school from 9am and finish, it appears, at the end of the school day, apart from Friday afternoon where “activity with Dad” is noted after lunch. On 9 March 2019 the applicant thanked the Teacher for the email and observed:
I think we need to make a few changes to reflect [H’s] progress over the past two weeks. We should also build in who is supporting him for a particular session and where he needs scribe, fine motor support e.g. use of the protractor to participate in maths as I did last week.… As yet the plan doesn’t provide him with the intellectual and social stimulation he needs to enjoy and connect with school… we’re concerned he’s missing out on key activities the class participates in such as library and assembly – these are important to build his sense of connection to the school. Often, when he struggles (like Friday this week) it’s because he’s not feeling included. Again he was left by himself with me for the day, and everyone else in school seemed to participate in the assembly. For that reason, we don’t support stopping early afternoon on Fridays. If Friday afternoons are voice and movement we should find a way for [H] to participate…
The applicant had further contact with the Teacher on 12 March 2019 when he emailed H’s maths assessment. He noted that he scribed the work. Around the same time the applicant’s spouse was communicating with an inclusion support officer, Ann Harrison, employed by the respondent. In an email of 13 March 2019 Ms Harrison asked if she and an occupational therapist could observe H at school noting:
this observation would be used to support the development and revision of any school based plans, in conjunction with recommendations from the school psychologist and external support services.
When the applicant’s spouse replied to Ms Harrison later that evening, she noted her understanding that the Human Rights Commission had been in contact regarding “[H]’s situation.” It was around this time that the applicant became aware of bolts on the 5th grade classroom door, detailed below, that H stopped attending school.[13]
[13] Transcript of proceedings 24 August 2020 page 76, line 45
In closing submissions, the applicant claimed that the respondent had imposed a condition under section 8(3) on H that he could only attend school part-time. Further, the applicant submitted that the part-time attendance had the effect of disadvantaging his son because it did not allow H sufficient time at school for him to develop friends and relationships that would allow him to feel safe and access an education, compared to all other students for whom full-time attendance is an assumed right.
The Tribunal considers that if the respondent’s conduct is discriminatory against H it is direct discrimination as the shorter hours related to H’s time at school. Put another way, this is allegedly adverse behaviour towards H, because of his disability. Both parties accepted that the reduced hours were due to H’s disability and noted that a period of transition from shorter to longer hours was a positive strategy for H when he joined the school in 2018. The issue for us is whether the reduced hours in 2019 demonstrates the respondent treating or proposing to treat H unfavourably.
The applicant set out compelling reasons as to why H’s reduced hours at school were unfavourable for his development socially and educationally. The Tribunal had considerable sympathy for this. However, it also accepts that the school was trying to ensure H gradually adjusted to a new teacher and new school year after the summer holidays. H’s various actions and responses during his first day at school and again on 8 February 2019 led his teacher, who had specialised training and experience in educating children with disabilities, and the Deputy Principal, also an experienced educator, to form the view that a graduated return to school was in H’s best interests.
As former President Curtis reasoned in Prezzi v Discrimination Commissioner (Prezzi):
If for example, only two courses of action were open [in this case full time hours or reduced hours] each of which might produce a result unfavourable to the complainant, and one course is chosen because of the impairment suffered, does that necessarily mean that there has been discriminatory treatment even if, at the time the action was taken, it appeared to the person taking the action that it was in the best interests of the complainant, as being likely to produce a better outcome? This would penalise a person, acting in good faith in the interests of the impaired person, if it turned out that the action produced an unfavourable result. [14]
[14] Prezzi v Discrimination Commissioner [1996] ACTAAT 132
Further, while it is very clear from the emails in Exhibit A1 that the applicant and his spouse were unsupportive of H’s reduced hours at school and regularly sought for H to increase the length of his attendance from approximately 14 February 2019, the applicant also proposed that H attend school for activities which he enjoyed, such as Japanese and chess. This makes sense but shows some support of selective attendance by H’s parents. Additionally, when the applicant advised the school on a Sunday that he would be bringing H to school the next day when all the other pupils arrived, the Principal responded with “Thanks for keeping the channels of communication open, as we work together to meet the needs of [H]…”. That is, the Principal did not attempt to dissuade the applicant from his proposed course of action or impose a different option.
A further challenge for the school arising from H’s responses in his first week of term 1 was the duty of care owed to other pupils and staff. H’s described actions of stabbing scissors into a whiteboard and throwing chairs at his teacher are examples of H’s actions which could put other members of the school at risk. As Gleeson CJ reasoned in Purvis v New South Wales (Purvis):
it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder…[15]
[15] Purvis v New South Wales [2003] HCA 62 at [14]
The factors detailed above leads the Tribunal to consider that H was not discriminated against due to reduced hours at school being proposed by the school for the first month of term 1.
The Tribunal also does not consider that the applicant was indirectly discriminated against in the reduced school hours proposed for H. Again, the Tribunal fully appreciates the significant inconvenience to the applicant and his spouse and their fears that H’s development academically and socially may have been impacted by H having less time at school than his peers. However, we do not consider that a condition was imposed upon the applicant for the reasons given above. Even if the school’s proposal of H’s graduated hours could be seen as a condition, we do not consider that it was unreasonable as the disadvantage was disproportionate to the result sought by the school, as per section 8(5)(c).
Failure to provide a teacher’s aide to support H in Term 1 2019
When H joined the school in term 4 of 2018 there was a LSA attached to his year 4 class.[16] The applicant submitted that this was a very positive experience for H and allowed him to engage in many activities during that term.
[16] Transcript of proceedings 25 August 2020 page 154, line 29
The Principal’s evidence includes that:
I recall a series of events in November 2018 where [H] became physical with [his teacher] and other staff. [H] was reluctant to return to the classroom at this time. [The applicant and his spouse] agreed that maintaining [H’s] positive perception of school was a priority… The Deputy Principal’s office was identified as a place that supported [H’s] sense of safety and security. [H] worked there for the reminder of the year under the supervision of [the Deputy Principal], [his teacher and the LSA].[17]
[17] Exhibit R3 at [12] - [13]
The Deputy Principal’s evidence details two incidents in November 2018 where H became physically aggressive with his teacher and the LSA and a third where he became very agitated trying to open a locked cupboard and yelling for a computer. Exhibit R18 includes reports of the incidents which occurred. They include details of H kicking the LSA when he removed a paper bag that H was attempting to pop, H throwing library books at the teacher and hitting the teacher in the back of the head. She described H’s reluctance to return to his classroom, and so for the remainder of the school year H worked out of her office.[18]
[18] Exhibit R8 at [13]
The Principal was asked about the provision of LSA support for H during her evidence. She explained the process occurring at a meeting in December 2018 with H’s parents. Representatives from the school and a moderator conducted a student-centred appraisal of need to determine the level of funding support to be provided by the respondent. She said that as a result of this process H was rated 3.9, which equated to approximately one third of an LSA.[19] This evidence was not disputed by the applicant. He referred to it in final submissions. The Principal said that the school covered the cost of a dedicated LSA for H in 2018 when the Directorate funding did not cover the cost entirely.
[19] Transcript of proceedings 25 August 2020 page 92, line 134
For term 1 2019, the Principal’s evidence was that there were two LSAs allocated to two year 5 classes and two year 6 classes. There were also two LSAs who spent half of their time in the school canteen each day to work with different pupils needing support.[20] The Principal’s evidence was also that H was allocated to a class with a newly recruited teacher, with whom she had previously worked, who was experienced in teaching children with disabilities[21] and that “the ratios with teachers to students was particularly good.”[22] The Principal described a class of 20 as “tiny” for the year 5/6 cohorts.
[20] Transcript of proceedings 24 August 2020 page 76, line 45
[21] Transcript of proceedings 24 August 2020 page 92, line 41
[22] Transcript of proceedings 24 August 2020 page 93, line 14
When a dedicated LSA was not provided in H’s class at the start of the 2019 school year, the applicant attended school with his son. Paragraph 57 of the complaint alleges:
I was expected to attend school with [H] to act - effectively as his teacher’s aide. During the first five weeks of Term 1, I moved around the school through the school day, supporting [H] in different settings: the library, the playground, the canteen, the classroom and so on.
During cross-examination of the Principal, the applicant took her to a document called the Individual Student Safety Analysis and Intervention Plan (Safety Plan),[23] which he described as being developed by the school with his spouse’s input on 12 April 2019. He noted that under the heading “current controls” it states “LSA support 1:1 100% of the school day.” The Principal advised that LSA support was available 100% of the day and that this did not mean an LSA was constantly with H as this had the potential to upset him.[24]
[23] Exhibit R12
[24] Transcript of proceedings 24 August 2020 page 94, line 17
There appeared to be a disconnect between the respondent’s understanding about the applicant supporting his son at school and the applicant’s views on this. The Principal’s evidence for example was that “our understanding was that [the applicant] had taken leave and it was [his] intent to support [H’s] transition through the beginning of the year.”[25]
[25] Transcript of proceedings 24 August 2020 page 98, line 29
Similarly, in cross-examination the Teacher said that the applicant’s attendance at school with H and his youngest son also, “follows on some conversation we had prior to that, where [he] said [he] had taken 6 months, so referring to facilitate [H’s] transition to school.”[26]
[26] Transcript of proceedings 25 August 2020 page 207, line 37
The draft ILP the Teacher emailed the applicant on 26 February 2019 contemplates the applicant’s assistance to H extending beyond the start of the year. It includes:
although [H] is yet to spend any significant time in the classroom, with [the applicant’s] support he has engaged in some aspects of school life – visiting the library, participating in Japanese for short periods and working in the canteen.[27]
[27] Exhibit A1 (not paginated)
It was apparent from the applicant and his spouse’s emails from mid-February 2019, as detailed above, that the applicant’s attendance at school with H was putting pressure on the applicant’s whole family and they did not wish this to continue.
The question for the Tribunal is did the failure to have a dedicated LSA for H in the first term of 2019 equate to discrimination of H and the applicant? If this conduct equates to discrimination, the Tribunal considers that it is indirect discrimination. This is because we do not consider that the failure to provide a dedicated LSA to H’s class, is “adverse behaviour towards a person, because of an attribute [emphasis added]”,[28] as direct discrimination requires. In this respect, this ground differs from the first ground, where the proposed reduced school hours were directly related to H’s disability.
[28] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]
Looking firstly at the alleged discrimination of H, section 8(4) of the Act makes it clear that a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances. In assessing reasonableness, the Act provides that factors to be considered include the nature and extent of any disadvantage resulting from the condition; the feasibility of overcoming or mitigating the disadvantage; and whether the disadvantage is disproportionate to the result sought by the condition’s imposer.
In dealing with the educational environment, section 18(2)(a) also provides that it is unlawful for an educational authority to discriminate against a student by denying the student access or limiting the access to any benefit provided by the authority.
If the condition of reduced LSA support is examined as possible indirect discrimination this action potentially disadvantaged H because of his disability. The evidence is that H needed support at school for tasks requiring fine motor skills, such as using mathematical aids and writing Japanese characters. He also needed support when he became distressed, as occurred on several occasions in November 2019 and on the first and third day of school in term 1 2019.
In asking the applicant to be present during reduced school hours for the first few weeks of term 1 the respondent acknowledged that H needed additional support. Whether H was actually disadvantaged in his class not having a dedicated LSA is not as clear.
While the applicant spoke very positively of the LSA support his son had during term 4 2018, the evidence is that by the end of the term H was not working with that LSA in his class, but rather in the Deputy Principal’s office under supervision by the Deputy Principal, his class teacher or the LSA. Emails sent by the applicant and his spouse during term 1 of 2019 stressed the importance of H feeling safe and trusting the adults around him, and how easily this trust could be lost. Hence, even if the Teacher’s class had a dedicated LSA who would spend time with H, as opposed to sharing an LSA with the other year 5 class, in addition to the canteen LSAs, it is not certain this would have resulted in an advantage for H if he did not respond well to that individual.
The Teacher and the Principal both gave evidence that they hoped that the Teacher could take a greater role with H, given her training and experience in working with children with a disability. The Teacher said in cross examination:
when you’re dealing with a child with trauma, that relationship between the teacher is extremely important. …not having a one on one LSA with [H] was actually a deliberate decision, not to actually have a full time LSA with him for a hundred per cent of the time, to allow me as the teacher to develop the relationship with him but there was certainly LSA’s availability in multiple ways.[29]
[29] Transcript of proceedings 25 August 2020 page 210
Further, in considering the reasonableness of not providing a dedicated LSA to the Teacher’s class, the Principal explained that the allocation of resources for the entirety of pupils at her school is a complex exercise which the Tribunal assumes must also be adapted at times to meet the changing needs of the entirety of the school’s pupils. As noted by the respondent’s counsel in written submissions, the programs and facilities in a school, including LSA support, do not occur in isolation or as discrete matters.
The Safety Plan indicates that by April 2019 the respondent, with H’s parents’ input, had identified that H needed greater support, as seen by the reference under the heading “current controls” “LSA support 1:1 100% of the school day.” While the Principal was at pains to stress that this did not mean H should have a dedicated LSA with him at all times during the day, as this had the potential to upset him, it still indicates that the respondent identified the need for greater assistance than had been initially provided.
The Tribunal does not consider that this recognition means that H was discriminated against by the respondent in his first few weeks of school in 2019 by not having a dedicated LSA, the reliance on his father and, it appears, the plan of a teacher with experience in working with children with special needs, being more involved with him. Again, former President Curtis’ comments in Prezzi are considered relevant. It is not considered that the school should be penalised in assessing and trialling the options for H in circumstances where we discerned that the respondent’s witnesses were acting in good faith in regards to the options tried.
Turning to the issue of whether the applicant was discriminated against in the failure to provide a dedicated LSA for H’s class, the emails from him and his spouse detail the disadvantage the applicant suffered, in terms of the imposts on his time and impacts on the other members of his family. Anyone considering the applicant’s situation would have much empathy for all he was juggling in early 2019. However, for the reasons given above in looking at alleged discrimination to H due to his class not having a dedicated LSA, the Tribunal does not consider this disadvantage equates to discrimination, as this was not unreasonable.
The school could have acted more promptly to find another way to support H, given the applicant and his spouse’s emails regarding reducing the applicant’s involvement in H’s support and learning at school. However, it is not considered unreasonable for the school to trial the options arranged with the two LSAs covering the four classes, the additional LSAs in the canteen and the Teacher trying to be more involved with H than his year 4 teacher had been due to her particular experience. The applicant could have refused to attend the school and ultimately, he did. When this occurred, other options were employed to assist H, as the Teacher’s email in early March 2019 reflects.
The failure to provide a safe learning environment
The applicant claims that H’s ability to climb onto the school roof for several months before the access was removed, coupled with bolts on his classroom door denied H a safe learning environment and so limited his access to a benefit provided by the respondent (section 18(2)(a)).
There is a discrepancy between the applicant’s and respondent’s evidence as to whether H climbed onto the school roof in December 2018 or up a fire escape. Either way, this is a risk for a child, especially one who suffers seizures. The evidence appears to be that H also climbed onto the roof in May 2019. In relation to the second issue, there were bolts on the door of H’s 5th grade classroom which separated it from the adjoining 5th grade class. The Tribunal accepts the evidence that the bolts were most likely installed many years before H joined the school and were not installed to lock him in the classroom.
The applicant does not refute that the school made alterations to remove the risk of H climbing onto the roof or fire escape again and removed the door bolts. The issue is the time it took to make these changes.
In terms of the bolts, on 8 March 2019 the applicant’s spouse wrote to Ms Harrison, the Directorate’s inclusion officer, to express her concerns about the bolts’ presence, opining that they appeared to be “a new addition”.[30] Ms Harrison replied the same day, advising that she had informed the Principal, who would be able to provide further information and that she understood the bolts were only used in the event of a school lock down, not to manage individual student behaviours. During her evidence, the Principal advised that she understood that the bolts were installed after the Port Arthur massacre.[31]
[30] Exhibit A1
[31] Transcript of proceedings 25 August 2020 page 115, line 5
In an email to the Teacher on Saturday 9 March, the applicant expressed his concern about the bolts and stated that the issue was critical for H’s mental wellbeing and safety due to him having been locked in his classroom in year 4 at his previous school. He noted that they would seek written advice from his psychologist on the issue and that they “need the issues around [H’s] safety to be addressed before they can send him back to school.”
In an email to Ms Harrison on 13 March 2019, the applicant’s spouse wrote “as [the applicant] advised the school over the weekend we can’t return [H] to school while those bolts remain on the classroom doors…”. The applicant confirmed in his cross examination that “we withdrew him [H] pending the resolution of the bolts issue.”[32]
[32] Transcript of proceedings 24 August 2020 page 63, line 10
The respondent’s evidence is that the bolts were removed some time before 2 April 2019.[33] The applicant claims that the bolts were only fully removed on 4 April 2019 when the issue was pressed further.
[33] Exhibit R3 at [22]
The Tribunal considers that the school responded to the applicant’s concerns about the bolts’ potential impact on H in a reasonable timeframe, noting the described purpose of the bolts to protect children in the event of a school lockdown posing a serious risk to the school population. The Tribunal therefore does not consider that this period of time leads to any finding of indirect discrimination against H as pleaded by the applicant, in failing to provide a safe learning environment by not removing the bolts more promptly.
In relation to H’s roof access, the applicant details in the complaint that his son climbed onto the school’s roof when he was anxious so “he could be on his own and away from the adults he found to be challenging.”[34] Paragraphs 68 and 69 of the complaint allege that in failing to prevent H from accessing the second story roof over a prolonged period of six months, H was directly discriminated against under section 18(2) of the Act. This is because in failing to provide H with a safe learning environment he was limited in a benefit provided by the respondent.
[34] Particulars of complaint dated 8 April 2020 at [62]
In closing submissions, the applicant said that the respondent:
in failing to take prompt and effective action to prevent [H] accessing the roof, when his expression of suicidal thoughts and propensity for epileptic seizure put him at high risk of catastrophic injury there, the school imposed a condition on him that he attend school even though he was not safe.[35]
[35] Transcript of proceedings 7 September 2020 page 320, line 14
The respondent’s evidence is that on 16 November 2018 H’s LSA reported that H had climbed to the top of the fire escape and said that he had considered killing himself previously.[36] The Deputy Principal’s statement includes that this incident was communicated to the school psychologist, who was in contact with H’s private psychologist and the Principal.
[36] Exhibit R8 at [16]
Exhibit A1 includes an email that on 7 May 2019, H’s mother had reported to the school that H had twice climbed the fire escape directly outside the exit to the building outside his classroom onto the awning above the door and onto the roof on 6 May 2019. She noted that she had spoken to H about accessing the roof who said he found it peaceful there. She proposed that the strawberry trees be accessed as a safe place to have time away from other kids and noise.
It appears the Deputy Principal replied to this communication from H’s mother thanking her for her reply the next day, in an email which has the same subject line of ‘H 6.5.18’. While the Deputy Principal’s email is not included in the bundle from the applicant, one of 10 May 2019 is where the Deputy Principal provided notes from a meeting on 9 May 2019 and the “updated Safety Plan”. The latter document is part of Exhibit A1. It includes under the heading “Behaviour eg threatening, hitting -Playing outside, climbing onto the roof and up the fire escape.”
The “Current Controls” listed in this Plan are:
Protective Action Plan developed and communicated with staff; [H’s] family will take [H] to meet the LSA outside the classroom each morning; if [H] is on the roof, key members of staff and [H’s] family will be notified to provide support; the Protective Action Plan will be followed if [H] is on the roof and/or on the fire escape stairwell or engaging in unsafe behaviour in another part of the school [and] safe spaces provided for [H] to go to if he’s showing signs of feeling overwhelmed (Deputy Office, Playground, Art Room, Strawberry Trees).
Under the heading “Further Controls” the measures listed include:
Family to inform School by phone call to the front office of estimated arrival on the way to school. On arrival [H] will go to the strawberry trees to meet Cathy…; OV team and capital works team currently being consulted about access to roof and fire escape.
The next document included in Exhibit A1 is an email from H’s mother to the Deputy Principal, cc’d to the Principal dated 11 May 2019 referring to the 9 May meeting noting:
There are extreme risks for [H] which are still not addressed in terms of easy access to the roof. Safe places strategy hasn’t been worked out with him. We will not be returning [H and his brother] to school until there is a positive plan…
On 14 May 2019 H attended school to undertake NAPLAN. His mother emailed Greg Taylor, an employee of the respondent and cc the Deputy Principal and others with H’s needs to complete the testing. The Deputy Principal replied later that day advising that she had heard that H had a positive experience with the test and that she would like to meet with the family and an employee of the respondent, Craig Edwards, on the following Tuesday.
On 16 May, H’s mother emailed Mr Edwards and advised:
Key to the safety plan is the outcome of discussions with capital works regarding removing the awning over the door or other ways of making the fire escape safe for all children. I have observed other children also climbing on various rooftops while being at the school so this is a reasonable (sic) foreseeable risk for many children.
On 17 May Mr Edwards emailed H’s mother and the applicant and advised:
I have been in touch with Infrastructure Capital Works and can confirm: that the school has engaged the appropriate people from that section; they have been onsite to examine the issue; and a solution is being developed.
On 18 June 2019 H’s mother emailed Ms Hamilton to advise that the Principal had called her on 17 June to report that H’s younger brother had climbed onto the roof several times that day. She noted that she thought the fire escape was to be locked.
Ms Hamilton replied later that day. Her response includes:
in regard to capital works, the gate access to the fire escape area will be locked, this is a measure which will be actioned immediately. This means [H] will not have external access to the area. I have also requested our infrastructure branch organized for the awnings to the windows be removed.
The applicant thanked Ms Hamilton for her email and asked “…where does [H] go when he has a flight response from the classroom? The last two times he was at school this ended up being on top of the roof.” The applicant went on to say that other options offered such as the strawberry trees were not providing what H needed.
The material about H accessing the fire escape in November 2018 and roof in May 2019 concerned the Tribunal. We have deliberately set out the detail above which shows that H appeared to have climbed twice, once on 16 November 2018, and another on 6 May 2019. This is also the Deputy Principal’s evidence.[37] Of the second incident she said that she had actually seen him “access the roof of the building.”
[37]Transcript of proceedings 4 September 2020 page 247, line 15
The Tribunal was given photographs which showed the fire escape stairs and the area of the roof H accessed. The photos were taken after work was undertaken to remove an awning which he accessed from the fire escape stairs to reach the roof. In re-examination the Principal explained that the school is a heritage building and that she understood that the awnings over the stairs were to prevent slippage from rain coming into the area.[38]
[38]Transcript of proceedings 25 August 2020 page 153, line 43
Exhibit R17 includes emails detailing the work undertaken which was completed during the week of 15 July 2019, during the school holidays. It includes approval for the removal of the awnings/canopies given on 21 June 2019. The material also refers to a potential slip hazard resulting from the modification and a recommendation to ensure the fire management plan is complied with if further work is needed after the awnings’ removal.
In terms of the fire escape gate being unlocked, Exhibit R17 also details the issues of complying with “fire egress regulations”. It is clear that the evident risks of harm in the event of a fire to any of the school’s occupants in blocking a fire escape would need to be considered. The Principal also raised the issue of kindergarten children having to access the toilets nearby using a different route due to the fire escape gate being locked.[39]
[39] Transcript of proceedings 25 August 2020 page 137, line 43
As noted, the Tribunal considers the incidents of H climbing the fire escape and particularly, the roof, are very concerning. We were also surprised that the school appeared to be unable to produce reports of the incidents. We note that Exhibit R17 includes RiskMan reports covering H’s reported behaviour towards his teacher and the LSA in November 2019 nothing was produced on the climbing incidents.
While we consider that more prompt action could have been taken after the May 2019 incident involving H, we can also see from the evidence given, including the content of Exhibit R17, that the respondent was not in a position to simply carry out alterations to the school given approvals needed under other ACT legislation and due to the risks raised for other members of the school community in doing so.
The Tribunal does not consider this consultation and approval process and the time it took equates to the imposition of a condition, as per section 8(3) of the Act that had the effect disadvantaging H. However, if this process could be seen to equate to a condition, we consider it was reasonable given the steps that needed to be taken to comply with fire, heritage and other legislative requirements. The Deputy Principal’s communication with the applicant providing the updated Safety Plan indicates that the school was also trying to address the immediate risks to H if he tried to access the fire escape or roof again before any work could be undertaken.
Failure to follow appropriate learning strategies for H
In the fourth ground of discrimination pleaded in the complaint the applicant alleges that H was discriminated against due to the school failing to follow appropriate learning strategies for him. The applicant points to H’s use of the iPad at school, in particular. The complaint refers to the objective in the Act of “the achievement of substantive equality which may require the making of reasonable adjustments, reasonable accommodations and the taking special measures.” The complaint asserts that H’s trauma and anxiety meant that when he was provided with an iPad he would not go and join his peers in physical activity, undertake class learning activities or eat or go to the bathroom. The applicant said that the respondent was denying H a right to education under section 27A of the HR Act. In his closing submission the applicant added that the reason H was withdrawn from the school was because of his iPad usage.
The applicant agreed in cross-examination that H also used a Chromebook at school for writing exercises and that this did not impact on his relationship with his peers.[40] In final submissions he said the concern was with:
[The Teacher’s] heavy reliance on the iPad as a means of keeping him occupied, against our explicit pleas [which] imposed a barrier to his learning that he be able to overcome the effects of his own trauma and anxiety to access an education without appropriate relationship-based supports.
[40] Transcript of proceedings 7 September 2020 page 325, line 15
The applicant also referred to the ILP developed in April 2019 which includes under the “strategies for achievement” heading:
LSA may provide [H] with an alternative method to document his learning as required; work with [H’s] family and his support team to assist him in using technology to access class activities and use Chrome book for activities involving extended writing.
The respondent’s written submissions refute the claim that H had unfettered access to ICT at school and refers to the Principal’s evidence that H’s use was under teacher supervision.[41] The Principal also said that school ICT devices only had educational applications installed and filters to restrict their use.[42]
[41] Transcript of proceedings 25 August 2020 page 150, line 38
[42] Transcript of proceedings 25 August 2020 page 157, line 22
The Deputy Principal’s evidence includes that after the incidents involving H and his teacher and LSA in November 2018 and on the first day of term 1 in 2019, H was given an iPad. She reported that the Teacher experienced greater success in connecting with H in the following two days [after H’s first day of term 1 2019] when he was given access to an iPad. On the second day, he had willingly engaged with tasks for a short period of time before being allowed to use the iPad.[43] She said that games which could be accessed on the school iPads were limited to those played by the children in the classroom and gave examples Prodigy and Duolingo which are linked to the curriculum. She acknowledged that YouTube could be accessed and that she was aware of H doing so when he was in her office. She said he would discuss what he was accessing which she opined helped with “connections with grownups in the school and other students.” [44]
[43] Exhibit R8 at [24]
[44] Transcript of proceedings 4 September 2020 page 250, line 13
In her statement at paragraph 24, the Teacher opined:
…very early experiences demonstrated connection would be best achieved through the appropriate use of ICT, as when ICT was denied or expectation to engage in a task was placed upon him [H] would revert to physical violence, abusive language and threats of violence.
The Teacher also commented that:
…giving [H] use of an iPad drew other students to him, apart from his one singular friend, and led to conversations, a greater willingness to negotiate and increased positive interactions with others.
The applicant was critical of this latter sentiment during the hearing. The Tribunal appreciates H’s parents’ concern about their son’s social and educational development if he was spending large amounts of time on an iPad rather than engaging in the tasks of and with his peers. The school refutes this claim as detailed. The respondent’s witnesses did refer to occasions when H was given access to an iPad for lengthy periods and linked this to trying to manage his emotional and physical responses linked to his disability.
On balance, the Tribunal is unconvinced that the school discriminated against H in failing to provide appropriate learning strategies as claimed by the applicant. The exchanges between the parties in Exhibit A1 give examples of technology being used for educative purposes and also as a means of engaging H and leading to discussions with his peers. While the applicant and H’s mother clearly had a very different view of H’s use of technology and specifically the iPad while at school, we do not consider this difference in view leads to the school’s conduct being discriminatory.
………………………………..
Senior Member M Brennan
For and on behalf of the Tribunal
| Date(s) of hearing | 24 August 2020, 25 August 2020, 4 September 2020, 7 September 2020 |
| Applicant: | In person |
| Counsel for the Respondent: Solicitors for the Respondent: | Dr D Jarvis Ms A Sydney, ACT Government Solicitor |
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