FVN v Secretary, Department of Education

[2023] NSWCATAD 122

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVN v Secretary, Department of Education [2023] NSWCATAD 122

Hearing dates:

18 July 2022

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member
K Stubbs, General Member

Decision:

1 The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.

2 The applicant’s complaints are dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

Catchwords:

HUMAN RIGHTS – Discrimination – grounds of disability –direct and indirect discrimination – home assistance – guidelines - whether differential treatment - comparator –– services

Legislation Cited:

Education Act 1990 (NSW)

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

IW v City of Perth (1997) 191 CLR 1

Category:

Principal judgment

Parties:

[Anonymised] (applicant)
Secretary, Department of Education (respondent)

Representation:

Counsel:
V Bulut (respondent)

Solicitors:
Peter Vogel Legal (applicant)
Kingston Reid (respondent)

File Number(s):

2022/00033001

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant, her children and photographs of her children is prohibited.

REASONS FOR DECISION

1. The applicant is the mother of a student who attended a NSW Public School from February 2019 to July 2021. The applicant has made the complaint on behalf of her son alleging that the respondent has unlawfully discriminated against both her and her son, as a student, based on disability and in contravention of s 49L of the Anti-Discrimination Act 1977 (NSW) (AD Act). The applicant also sought leave to amend the complaint of discrimination against herself pursuant to s49M of the AD Act. We have allowed that amendment and considered that complaint.

2. The applicant’s complaint is that her son was discriminated on the ground of disability of an associate. The associate being herself, who is immunocompromised with a chronic and acute diabetes condition. The applicant submits that the alleged discrimination was the refusal of the child’s school to make temporary reasonable adjustments in relation to his schooling during the COVID-19 pandemic

3. We have decided to dismiss the applicant’s complaint.

Non-publication of Names

4. These proceedings relate to discrimination against a child who is a minor. To protect the anonymity of the minor, we have anonymised the applicant and referred to the parties, the children and various witnesses by reference to their relationships to each other.

Background

5. On 22 March 2020, parents in New South Wales were encouraged by the NSW State Government to keep their children home from school to contain the spread of COVID-19.

6. On 11 May 2020, the New South Wales Government declared that students would return to schools on a staggered basis and subsequently on a full-time basis from 25 May 2020.

7. On 20 May 2020, the applicant and her husband sent an email to the school advising that despite the announcement by the Government, they were not of the view that it was safe for children to return to school full time and that there were two chronic conditions in the household.

8. On the same day, the school requested that the applicant provide a medical certificate stating that the son could not return to full time schooling due to the chronic conditions within their household.

9. The applicant subsequently produced two medical certificates which the school determined were not valid and the child as marked as "absent/justified' for the 31 days he did not attend school.

10. It is noted that the applicant’s initial complaint was made on behalf of her son, alleging discrimination by the school against her son. In an application filed on 24 March 2022, the applicant sought to join her son to the proceedings. We find it unnecessary to join her son as a party to the proceedings however, we have considered the complaint’s of discrimination both against the applicant and her son.

Section 49L – Discrimination in Education

11. The applicant submits that the respondent treated the applicant less than favourably by refusing to provide her with the home learning option for her child and discriminated against the applicant by requiring her to send her son to school or enrol him in home schooling in circumstances where it was not reasonable because of her disability.

12. The applicant relies on s 49L of the AD Act which provides for discrimination in education and relevantly provides:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability—

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability—

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

(3) Nothing in this section applies to or in respect of—

(a) a private educational authority, or

(b) a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.

13. The respondent does not dispute that the applicant has a disability.

14. While the applicant submits a breach of ss 49L (1), the facts in this case would not support such a breach as the respondent did not refuse or fail to accept the applicant’s request for admission or in the terms pf admission, as her son was already admitted as a student.

15. In relation to a breach of s 49L(2), it is necessary examine the requirements of compulsory education under the Education Act 1990 (NSW).

Compulsory Education

16. Section 21B of the Education Act provides that a child is of compulsory school age if the child is of or above the age of 6 years and below the minimum school leaving age. There is not dispute in these proceedings that the child was of compulsory school age.

17. Section 22 of the Education Act states that it is the duty of the parent of a child of compulsory school-age to cause the child to be enrolled at, and to attend school, or to otherwise be registered for home schooling

18. Section 23 of the Education Act makes it an offence if a parent fails to cause their child to be enrolled at, and to attend school, or to otherwise be registered for home schooling.

19. Section 25(1) of the Education Act allows the Minister of Education to grant a certificate exempting a child from the compulsory schooling requirement if the Minister is satisfied that conditions exist which make it necessary or desirable that such a certificate should be granted.

20. On 20 May 2020, following an announcement of the New South Wales Government that students would return to schools on a staggered basis and subsequently on a full-time basis from 25 May 2020, the applicant and her husband sent an email addressed to the school principal and stated the following:

We were (as I am sure you were) feeling slightly ambushed with the news yesterday from the Department of Education that they have decided to skip the proposed phased return to school. We don't believe there is enough evidence to conclude it is entirely safe for all children to return to school immediately for full-time face-to-face sessions.

With two chronic conditions, our household is forced to be on the cautious side of things.

We do appreciate that a somewhat normal life and attendance at school needs to be resumed at some point. [The applicant’s son] would like to come and see his friends and teacher, and we have believe one day a week (as per the plan only 24 hours ago) is the way to go at this point. We can afford to take this time, as I have deferred my studies and am at home full-time, with [the applicant’s son] learning very well from home.

For now, we will return [the applicant’s son] to school for one day a week, starting Wednesday 27 April, unless school prefers a different day.

We aim for the [applicant’s son] to increase attendance at school over the coming weeks. We will assess the situation weekly and keep you advised of changes.

Feel free to contact us at any time if you have any questions, or would like to discuss this approach.

…

21. It is noted that the email from the applicant and her husband proposes that the child will attend school. The parent’s objection is to the child attending school full time.

22. The applicant subsequently produced a medical certificate to the school from Dr Majid Najafi Zeini, dated 22 May 2020, stating:

I can verify that [the applicant] is suffering from Type one Diabetes, she is more than general population vulnorable to infection change her diabetes status. Considering this fact, I advise her to be careful, more than others, not catching any community acquired bugs and germs. Giving the fact that still Covid 19 Hazards not totally lifted in community I advise her to continue on social distancing for her and her close contacts to reduce chance of her catching any infection.

23. The applicant provided a subsequent letter from Dr Jane Overland, dated 23 July 2020 which stated:

I am writing to support [the child’s] parents' request to supervise their son's education at home... [the child’s] mother is immune-compromised, and she is self-isolating to reduce her risk of infection...

24. On 24 July 2020, after receiving the medical certificate from Dr Overland, Ms Parker, the school Principal, sent an email to the applicant attaching the Department of Education updated guidelines for students attending school in Term 3 and extracting the relevant section regarding school attendance. Ms Parker also confirmed that that she had received the doctors certificate and would be contacting the doctor to let her know where to find the guidelines. Ms Parker also stated:

As [the child] is well and does not have an immune-compromised condition it is expected that he will attend school. He will not be provided with work to do at this time.

25. In her affidavit, Ms Parker recalls her conversation with Dr Overland as follows:

Me:   Thank you for your letter, I wondered whether you are familiar with the

guidelines for students attending school in NSW at the moment?

Dr:   No, [the applicant] phoned me and then visited me and told me that [the child] needed a letter to attend school from home. I told her that I couldn’t write [the child] a letter because he wasn't my patient. [the applicant] then asked me to write a letter saying that it was in [the applicant’s] best interest that [the child] stay home.

Me:   I know that [the applicant] is anxious about COVID but the guidelines are that every child must attend school unless the child is Aboriginal or Torres Strait Islander, the child lives with someone who is seriously immune compromised for example a parent going through cancer treatment or the child is immune compromised themselves.

Dr:   Yes, she is very anxious but that doesn’t sound like it falls into guidelines, I would never have written the letter had I know it was against the Department of Education’s guidelines.

Me:   Would you like me to send a copy of the guidelines?

Dr:    Yes.

26. Parents are exempted by the Education Act from the compulsory attendance of a student set out in 23(1)(a) if they comply with subsection 23 (7) of the Education Act which provides:

Notice of a medical condition that prevents a child from attending school is required to be accompanied by a certificate from a medical practitioner that states that the child should not attend school because of the condition briefly described in the certificate if the principal of the school has notified a parent of the child that because of the number or duration of past absences a notice must in future be accompanied by such a certificate.

27. Neither of the medical certificates provided state that the child should not attend school. The letter of Dr Overland does not say that the child cannot attend school, only that Dr Overland supports the request of the parents to supervise their son’s education at home because the child’s mother is immune compromised. The certificate does not even go so far as to say that the child should not attend school because of the mothers condition, but rather that Dr Overland supports the request for the parents to supervise the schools education at home.

28. For those reasons it cannot be said that any medical certificate that was provided by the applicant was a notice of a medical condition as is required by s 23 (7) of the Education Act.

29. Section 24 of the Education Act requires the principal of a government school to keep a register of attendance and when required to do so must furnish information regarding attendance. Failure to do can result in a penalty. Similarly, s 23 makes it an offence for a parent to fail to send a child to school.

30. On that basis the requests of the Principal for the medical certificate and the finding that the medical certificate was not valid was consistent with the schools obligations under the Education Act.

31. Section 54 of the AD Act provides as follows:

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of—

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

….

32. We do not find that the school breached its obligations under s 49L (2) of the AD Act, as the schools requirement to attend school was consistent with their obligations to comply with the Education Act. The applicant chose to keep the child at home because she felt it was justified.

33. Further, the applicant has failed to provide evidence of differential treatment. None of the relevant comparators were a student whose parents had no disability, or in one case, they had a different disability, being cancer. The applicant chose to keep her son home from school because she believed it was reasonable and believed that the school was required to support her choice.

34. Neither the applicant nor child were denied the benefit of attending school. The student was able to attend school, or the applicant could have applied for home schooling. Home learning assistance was not something available to students at large. In that regard, this is not a case of denial of access to education.

35. In summary, having considered the parties submissions we are not of the view that the respondent contravened s 49L of the AD Act.

Section 49M of the AD Act

36. The applicant also relies on s 49M of the AD Act. Section 49M relates to the provision of goods and services and relevantly provides the following:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability—

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

37. The applicant makes submissions that s 49M of the AD Act extends to mother herself. In our view this ground was misconceived.

38. Section 4 of the AD Act defines service as follows:

Services includes—

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

39. The functions of the Minister under the Education Act are set out in s 19 as follows:

The Minister has the following functions—

(a) to exercise the functions in connection with the school curriculum that are conferred or imposed on the Minister under Part 3,

(b) to establish and supervise the operation of government schools under Part 6,

(c) to exercise the functions in connection with registration, and financial assistance to non-government schools, that are conferred or imposed on the Minister under Part 7,

(d) to determine, having regard to the requirements of Part 8 and the advice of the Authority, the general method of assessment of candidates for the recognised certificates (whether by public examination or other form of assessment),

(e) to determine, having regard to the requirements of Part 8 and the advice of the Authority, the nature of the information appearing on the recognised certificates or records of achievement issued by the Authority,

(f) to carry out such educational audits and program reviews as the Minister considers appropriate to assess and improve the quality of education for school children in New South Wales,

(g) any other function conferred or imposed on the Minister under this Act.

40. Moreover, the principal objects of the Education Act are set out in s 5 as follows:

5 The principal objects of this Act are as follows—

(a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate,

(b) to provide for the establishment and operation of government schools,

(c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales,

(d) to allow children to be educated at home,

(e) to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them.

41. The general functions do not require that learning support be provided at home. The Education Act envisages learning from home and provides for it in Part 7 by way of home-schooling.

42. In IW v City of Perth (1997) 191 CLR 1, involved a question on appeal to the High Court as to whether the City of Perth unlawfully discriminated against an Incorporated Association, by refusing planning approval for the use of premises for persons with HIV. Gummow J stated at [44]:

In the present case, the Council did not refuse to provide services. It did not, for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth. Section 66K(1)(a) could have no application. It deals with refusal to provide services. Accordingly, the appellant's primary submission should be rejected.

43. Similarly in this case, the respondent has done what is required of them and made schooling available for the child. The applicant always had the option of seeking to register her child for home-schooling. There is no requirement under the Education Act to provide home assistance so that a child may study from home.

44. The Education Act does not extend so far as to require the respondent to provide services to a parent.

45. Moreover, we find no discrimination based on s 49M against the child as the school was at all times willing to provide education either face to face or the applicant could have applied for home-schooling.

Orders

46. Accordingly, the Tribunal makes the following orders:

1. The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.

1. The applicant’s complaints are dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 May 2023