Phu v NSW Department of Education and Training

[2010] NSWADTAP 76

Appeal Panel - Internal

CITATION:	Phu v NSW Department of Education and Training (EOD) [2010] NSWADTAP 76
PARTIES:	APPELLANT Chi Chau Phu RESPONDENT NSW Department of Education and Training
FILE NUMBER:	099076
HEARING DATES:	6 and 7 September 2010
SUBMISSIONS CLOSED:	7 September 2010
DATE OF DECISION:	25 November 2010
BEFORE:	Patten D - Deputy President; Wright R, SC - Judical Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Appeal - Equal Opportunity Division - Adequacy of reasons - Whether equal opportunity case
DECISION UNDER APPEAL:	Phu v State of NSW (NSW Department of Education and Training) (No. 3) [2009] NSWADT 282
FILE NUMBER UNDER APPEAL:	071062
DATE OF DECISION UNDER APPEAL:	11/12/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Beale v GIO of NSW (1999-2000) 48 NSWLR 430 Catholic Education Office v Clarke [2004] 138 FCR 121 Hurst v Queensland [2006] 151 FCR 562 Re MIMA Ex parte Palme [2003] 216 CLR 212 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPELLANT A Rao RESPONDENT P Ginters
ORDERS:	1. Appeal dismissed. 2. Leave to extend appeal to merits refused. 3. No order as to costs.

1 This is an appeal from a decision of the Tribunal in its Equal Opportunity Division given on 12 November 2009 dismissing the appellant’s complaint.

2 The appellant brought the proceedings on behalf of his daughter Helen who was born on 26 July 1994. The following facts emerge from the Tribunal's reasons and for the most part were not in dispute. At relevant times Helen Phu (hereafter Helen) was significantly disabled and in particular could not communicate verbally. She also engaged in self-injurious behaviour both in the classroom and in the playground which understandably was of great concern to her parents. In 2005 and 2006 Helen was enrolled in a special school “Wairoa” administered by the respondent. During 2006 Wairoa comprised 10 classes, Helen’s class having up to six pupils. Each class was staffed with a teacher, teacher’s aide and often a university student. During the latter part of 2005 and into 2006 Helen's self-injurious behaviour intensified and came under the active consideration of the school's principal Ms Murphy up to June 2006, and Mr Gallan thereafter. In late 2005 the appellant arranged for a psychologist to assess Helen and to provide a report to Ms Murphy. Such report was not provided to the school until June 2006. The appellant repeatedly requested the school during 2006 to provide Helen with one-to-one care while she was at school in order to prevent her from further injuring herself and also in order to assist her in learning and feeding. The school principal did not accede to these requests although from October 2006 an additional teacher’s aide was provided to Helen's class albeit not expressly on the basis that she would provide Helen with one-on-one assistance. From February 2007 in effect a teacher’s aide was provided to give Helen one-on-one care and this continued until the hearing before the Tribunal in June 2008.

3 The appellant complained that the school's refusal or failure to provide one-on-one assistance to Helen while she was at school constituted unlawful discrimination contrary to ss 49L(2)(a) and/or (c) and 49B of the Anti-Discrimination Act (the Act). Those sections provide as follows:

49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49L Education

(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.

(4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

4 It was contended by the appellant that contrary to the legislation, the respondent required his daughter in receiving her education to comply with a condition with which others were able to comply namely the absence of one-on-one care and support but with which Helen was unable to comply. Merely to state the contention reveals that it ill-fits the terms of the sections. What in substance, as we see it, is effectively contended is that the respondent in discharging its duty of care at common law towards its pupils was obliged to provide one-on-one care and support for Helen. On that analysis, this is not an equal opportunity case. We would distinguish cases such as Hurst v Queensland [2006] 151 FCR 562 and Catholic Education Office v Clarke [2004] 138 FCR 121 where the requirement or condition relied on was much more directly related to the imparting of education.

5 However the matter was argued and decided by the Tribunal as an equal opportunity case and was argued before this Panel on the same basis. In the circumstances, we will deal with it accordingly. Whilst the issue might loosely be framed as whether in providing education to Helen the respondent was reasonably required to provide one-on-one care and support to her, we are prepared to adopt the Tribunal’s helpfully compendious expression that the appellant was obliged to prove:

“a requirement or condition was imposed on Ms Phu, the requirement or condition was one with which Ms Phu did not or was not able to comply, a substantially higher proportion of persons without Ms Phu's disability can comply with the requirement or condition, and the requirement or condition was not reasonable in all the circumstances.”

6 The Notice of Appeal indicated that the appeal was made on a question of law but also sought leave to appeal on the merits of the Tribunal's decision. Unfortunately the Notice of Appeal, apparently drafted by the appellant himself, did not identify any question of law to be considered. Arguably that deficiency was cured by an Amended Notice of Appeal filed by a solicitor for the appellant on 4 June 2010. This identified 8 asserted questions of law all of which were related to the Tribunal’s finding that the respondent did not act unreasonably in declining to provide one-on-one care and support for Helen during 2006. The matters raised included whether the Tribunal misconceived its role, failed to apply the right test, asked itself the wrong question, erred in accepting that one-on-one assistance created a risk of overdependence, erred in regarding as relevant the respondent's conduct after October 2006, failed to give adequate reasons and reached a conclusion that no reasonable decision maker could have reached. The last mentioned contention was not pressed before us.

7 In her written submissions Ms Rao accepted that all the alleged errors of law were manifested in the section of the Tribunal's reasons headed “Discussion”.

8 In its comprehensive review of the evidence the Tribunal made reference to the fact that by early 2006 teachers and staff at Wairoa were concerned about Helen’s self injurious behaviour and that Ms Pisani, Helen’s teacher, had raised the matter with Ms Murphy who took the view that the school could manage the problem without providing one-on-one support which would have necessitated an application by the school for additional funding. The Tribunal accepted Ms Pisani’s evidence that Helen’s self-injurious behaviour during 2006 was an everyday occurrence, that it hampered her role in teaching other pupils and that it would have been better for Helen if she had one-on-one assistance. The Tribunal also made reference to a Regional Student Services Support Program operated by the respondent whereby funding may be allocated to schools where the immediate short term needs of a child cannot be met from the school's resources. Such an application was made for Helen in mid-2006 and additional resources were provided to the school for the fourth term of that year. In light of those matters the Tribunal made these findings:

47 We have carefully considered the evidence and consider that the respondent imposed a requirement or condition that Ms Phu access her education in the absence of full time one to one care and support from a teacher’s aide for the period 19 October 2005 until the beginning of term 4 in October 2006. After that date we accept the respondent’s evidence that Ms Phu’s class had a teacher, a teacher’s aide and an additional teacher’s aide funded under the Regional Program. In addition a university student was usually present.

48 Although the teacher’s aide was not formally allocated to Ms Phu, on the evidence before us we are satisfied that, in effect, from February 2007 until 20 June 2008 Ms Phu had available to her full time one to one care and support from a teacher’s aide. That accords with Mr Gallan’s evidence that the teacher’s aide was engaged for most of the day to assist Ms Phu with aspects of her program, including feeding, transition to other settings, in the school such as the playground, the hydrotherapy pool and the multi sensory room and hall. He made it clear under cross examination that the additional funding provided under the Regional Program to the school was for Ms Phu stating:

…that because the whole nature of the funding is it’s to support - to support Helen so I can’t see how I would’ve allocated that to other - other students. [Transcript 27 June 2008 27.7-11]


49 While at any given time one to one care and support for Ms Phu may have come from more than one person in the classroom we are satisfied that Ms Phu was not required to access her education in the absence of full-time one on one care and support from a teacher’s aide for that period of time. We also accept Mr Gallan’s evidence that by June 2008 the school considered that Ms Phu had improved to the point where the school could begin to gradually withdraw the level of support, although that level of support had not decreased by 20 June 2008.

Given that Ms Phu had access to one to one care and support from a teacher’s aide for the period from February 2007 to 20 June 2008 her complaint cannot be substantiated for that time period.

50 In the time period 19 October 2005 to mid October 2006 it is evident that Ms Phu was required to access her education in the absence of full time care and support from a teacher’s aide. The respondent concedes it did not provide a one to one teacher’s aide for that period. On the respondent’s evidence it is clear that each class that Ms Phu was in had a teacher, a teacher’s aide and often a university student. In 2006 there were six students in her class. Consequently we are satisfied that a condition was imposed on Ms Phu that she access her education in the absence of full-time one to one care and support from a teacher’s aide for the period 19 October 2005 to mid October 2006.

51 The evidence regarding Term 4 of 2006 is not as clear. On Mr Phu’s evidence his daughter did not have full time one to one care and support from a teacher’s aide for that period. On the respondent’s evidence there was some further assistance for Ms Phu in her classroom during that period. Based on the evidence of Mr Gallan, the school Principal, it appears that the initial funding provided under the Regional Program in the last term of 2006 allowed the school to better identify the areas that caused Ms Phu distress and provide more support for her, for example in transitions from one area to another and with feeding.

52 After considering the evidence we are not satisfied that Ms Phu had access to full time one to one care and support from a teacher’s aide for that term. Consequently we find that Ms Phu was required to comply with a requirement that she access her education in the absence of full time one to one care and support from a teacher’s aide for the period 19 October 2005 until the end of the 2006 school year in December 2006.

9 Having made the findings set forth above, the Tribunal considered the evidence in relation to the requirements of s 49B(1)(b) of the Act and found at para 82:

82 On the evidence of Ms Pisani, Ms Murphy, Ms Earp and Mr Gallan it is evident that in 2006 Ms Phu was engaging in a significant level of self injurious behaviour at school. After carefully considering their evidence and that of Mr Phu and Dr Mansour we are satisfied that Ms Phu suffered serious disadvantage in achieving her potential in educational terms during the 2006 school year. She was unable to comply with the condition imposed during 2006. The evidence is not as clear or compelling for 2005. There is some conflicting evidence as to whether things improved towards the end of 2005 before deteriorating again in 2006. We have insufficient evidence to make a finding in regard to the period 19 October 2005 to the end of that school year.

10 It followed almost as of course that the Tribunal would also find, and it did so find, within s 49B(1)(b) of the Act “that a substantially higher proportion of students without Helen’s disability can comply with the requirement”. Thus it was that the Tribunal came to consider the only issue before us on appeal namely whether the “requirement or condition” was not reasonable in all the circumstances of the case. It was not disputed that the onus of proving this lay upon the appellant and that the test was an objective one. The Tribunal dealt with legal principles relevant to the phrase “not reasonable in all the circumstances of the case” and the competing arguments put to it at paragraphs 85 to 104 as follows:

85 The High Court provided guidance in Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 378. The Court approved the statement of Bowen CJ and Gummow J in Styles where they stated:

The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience… the criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other, all the circumstances must be taken into account. [see Dawson and Toohey JJ 395-396, Mason J and Gaudron J at 365 , Brennan J at 378 and Deane J at 383]

86 Brennan J said that reasonableness must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity ... There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ...; secondly, whether the activity could be performed ... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity ... and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

87 All relevant factors must be weighed.

88 The relevant period of time is the 2006 school year given that we were not satisfied that Ms Phu could not comply with the requirement in 2005.

89 Mr Phu’s case is that the requirement is not reasonable for a number of reasons. Firstly because without one to one care and support from a teacher’s aide his daughter’s self-injurious behaviour was serious, resulted in injury to her face and hands and left her at risk of retinal damage. As stated above it is not in contention that Ms Phu engaged in self-injurious behaviour. We have already made findings that during 2006 that behaviour was significant. Based on the evidence of Dr Mansour, the data sheets collated by the school and Mr Phu, Mr Phu’s evidence of observing her harming herself and the damage to her face and hands together with photos provided by Mr Phu, we accept that she did hurt herself and that the risks of her self injurious behaviour included potential retinal damage. The consequences of Ms Phu’s self-injurious behaviour were clearly serious and that was recognised by Mr Phu and by the school.

90 Although not expressed exactly in these terms. Secondly Mr Phu submits that by having a person focused on his daughter they would get to know her needs and wants and be able to respond to her in a way that would reduce significantly, if not completely eradicate, her behaviour and consequently her risk of injury. So for example, they could make sure she was not too hot or too cold, could make sure her food was at the right temperature and could protect her so she felt safe. That would prevent her becoming distressed and injuring herself. He relied on the success he had at home when his family used this strategy and the evidence of his medical experts that we have dealt with previously. He also put forward evidence regarding the way that respite services dealt with his daughter by providing one on one care and, in one instance, two on one care of his daughter.

91 It is clear on the evidence that Mr Phu also considered, at least in 2006, that by having a one to one care and support from a teacher’s aide for his daughter they could also hold down her hands firmly to stop her hitting herself and thus prevent injury to her.

92 Thirdly Mr Phu points to the impact of the failure to provide one on one care and support for his daughter on her educational outcomes. Again though not framed exactly in these terms he submits that due to her self-injurious behaviour and her disabilities she has suffered serious educational disadvantage. For example, Ms Phu is unable to follow prompts or requests and is unable to feed herself sufficient food independently.

93 Fourthly he pointed to the existence of the Regional Program funding and Ms Murphy and then Ms Earp’s failure to take up his suggestions to provide one on one care for his daughter.

94 The respondent submitted that the requirement characterised by them as that “Ms Phu access education without a full time, one on one, teachers aide special” had not been shown “not to be objectively reasonable having regard to the circumstances of the case.” Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62.

95 Firstly the respondent submitted that the expert evidence spoke against the propriety of a full time, one on one teacher’s aide special in this case. The provision of one would not guarantee that Ms Phu’s self-injurious behaviour will be eliminated.

96 Although acknowledging that the need for additional teachers’ aides could arise from time to time the respondent relied on Dr Kemp’s observation that the Department’s Regional program was presumed to be short term assistance and relied on an appropriate program being in place to obviate a long term need for an aide. In Dr Kemp’s view short term additional aide support could assist with intensive programs designed to address issues such as Ms Phu’s self injurious behaviour in 2006, however that support should be short term and withdrawn when not needed. The decision about when it was not needed should be made by school staff with relevant expertise and experience. [at para 74 respondent’s final submissions].

97 The respondent relied on Dr Kemp’s opinion that the provision of a full time one on one aide would not be in Ms Phu’s best interests as it could lead to over dependence and that such support should be reduced over time. The respondent also points to the evidence of Ms Murphy that stated in her view that it would act as a disincentive to Ms Phu to learn skills and would lead to “learned helplessness”, dependence and limit her options in later life [at para 82 respondent’s final submissions]. The respondent also referred to similar views held by a number of their witnesses to that effect.

98 The respondent relied on concerns expert witnesses held about the use of restraint by an aide. Dr Kemp’s opinion was that restraint could maintain self-injurious behaviour and there was a potential that the student and aide could be injured. Dr Mansour’s evidence was that it would not be effective and that it could be a dangerous technique to use. It could lead to an exacerbation and entrenchment of the self-injurious behaviour. The respondent also pointed to Departmental policies regarding restraint. In effect these are that it is a last resort, it should only occur where there is an immediate risk of injury to persons or an immediate risk of serious damage to property, should only be what is reasonably necessary having regard to the specific circumstances and must not be used if there is a risk to staff.

99 The respondent submitted that the Department had put in considerable resources to assist Ms Phu. They drew the Tribunal’s attention to the teacher/teachers aide ratio of 1 to 3 and that the ratio in Ms Phu’s class was often better than that. They referred to initiatives for Ms Phu including the development of individual learning priorities in collaboration with her family and other key personnel, the development of visual supports and alternative forms of communication that could be used to assist her express and indicate her needs, functional assessment and staff training, the recording of data to provide insights into the causes of her self injurious behaviour and the development of management plans to deal with self injurious behaviour and redirect her from it.

100 In addition the respondent had accessed the Regional program funding to provide additional aide support for Ms Phu’s class. The Department of Ageing, Disability and Home Care had developed a program to address Ms Phu’s self injurious behaviour and teach her skills. Ms Phu’s educational program had been constantly monitored and adjusted so that she could achieve her educational outcomes.

101 The respondent also submitted that issues of practicality and finite resources were a relevant factor. The respondent contended that providing a full-time one on one teacher’s aide special would require more resources than a full time aide.

102 The respondent also submitted that acceding to this particular complaint had the potential to provide a vehicle through which demands could be made on behalf of other students with disabilities that they be provided with a full time one on one teacher’s aide. The respondent contended that in the context of the levels of support already provided by the Department such an outcome would impose unreasonable burdens on the Department in terms of:

a. The resources and demands associated with the need to obtain and place appropriately qualified and trained teachers’ aides special; and

b. The need to distribute finite financial resources. That is the increased costs associated with the provision of full time, one on one teacher’s aides special would come at a cost to other programs funded by the Department.

103 The Department noted that there were approximately 33,000 students with disabilities in schools. Of these more than 3,900 students were enrolled in special schools.

104 The respondent contended that if the Department was required to provide Ms Phu with a full time one on one teacher’s aide special similar demands would be made by other students with confirmed disabilities. The respondent points to the difficulties that would create in drawing the line between those students who will be provided with a full time one on one teacher’s aide and those who will not. The respondent referred to New South Wales v Amery (2006) 80ALR 753 at [2], [21] – [25].

11 As indicated earlier the appellant relies on paragraphs 105 to 113 under the heading “Discussion” as revealing the errors of law upon which it relies in the appeal. Those paragraphs are as follows:

105 The Tribunal notes that this is a case where all parties were concerned about the safety and educational progress of Ms Phu. The potential consequences of her self-injurious behaviour were serious both in terms of the risk to her safety and the educational disadvantage it led to.

106 Having heard evidence from Mr Phu he was a concerned parent and clearly wanted what was best for his daughter’s safety and education. The school staff who gave evidence before us impressed us as dedicated educational professionals who were concerned about Ms Phu’s self injurious behaviour and wanted to find ways to reduce and manage it as well as concentrate on Ms Phu’s educational goals.

107 It is relevant to consider that during 2006 the parties were both trying to understand the escalation in Ms Phu’s self-injurious behaviour. A close examination of the evidence reveals that the school was taking steps in the first half of 2006 to better understand what was triggering that behaviour, they met with Mr Phu and other professionals, they had made some referrals to professionals on Ms Phu’s behalf and they collected data and were working on strategies to address their concerns about Ms Phu. The Principal responded quickly to Mr Phu’s request to move his daughter from the playground at lunchtime to the mobility room so that she could be better supervised.

108 It is unfortunate that it took so long for the psychologists report to be completed and in retrospect it is evident that in the first half of 2006 the Principal could have taken some more proactive steps to get some further assistance for Ms Phu. However her evidence was that at the time she thought that the school could deal with it without needing to get assistance from other sources such as the Regional Program.

109 Mr Phu disagreed and was understandably very concerned about his daughter. He had formed the view early on that the way to manage the behaviour was by having someone with Ms Phu or available to her at all times to minimise the risk of her engaging in self-injurious behaviour. He eventually used this strategy at home and found it worked.

110 Once the psychologist’s report arrived there was contention between the applicant and the respondent about the report. The psychologist was an intern and the school disagreed with some of her suggestions particularly in regard to her recommendations about holding down Ms Phu’s hands firmly and the school requested changes to the report which were made.

111 Once the report was settled the school then set about complying with the program recommended. In addition, further steps outlined earlier were taken including more assistance for Ms Phu.

112 The question is not what would have been ideally done or what could have been done with the benefit of hindsight.

113 In this instance taking into account the steps that were taken we are not satisfied that the respondent acted in a way that was not reasonable by imposing the requirement that in 2006 Ms Phu access her education in the absence of full-time one to one care and support from a teachers aide.

12 It was submitted that the Tribunal failed to apply what had been said by the High Court in Watersv Public Transport Corporation (1991) 173 CLR 349 (by Dawson and Toohey JJ at 395-396, note also Mason CJ and Gaudron J at 365 , Brennan J at 378 and Deane J at 383) in relation to similar Victorian legislation. In particular, it was said that this required a consideration of all the relevant factors and weighing in a transparent manner all the competing considerations. It was contended that this obligation was not discharged by the recitation of the competing arguments contained in paragraphs 89 to 104 of the Tribunal's reasons.

13 The duty of Courts and Tribunals to give reasons for their decisions is well established and in the case of this Tribunal expressed by statute viz s 89 Administrative Decisions Tribunal Act 1997. As Meagher JA observed in Beale v GIO of NSW (1999-2000) 48 NSWLR 430 reasons need not be lengthy or elaborate but should contain three essential elements: namely a reference to relevant evidence, material findings of fact and reasons for making relevant findings of fact and for applying the law to the facts found. But it has also been accepted that in respect of some issues it is impossible for a judicial officer to indicate in detail the grounds which have led to the decision, see for instance Re MIMA Ex parte Palme [2003] 216 CLR 212 at para 40 and the cases there cited.

14 On behalf of the appellant it was submitted by Ms Rao that there was no weighing by the Tribunal of the competing considerations as required by Waters. For instance, so it was submitted, the Tribunal failed to consider overtly whether the steps taken by the respondent were appropriate, whether they provided benefit to Helen, whether additional funding should have been sought earlier and the expert evidence of Dr Mansour that one- on-one care was necessary to recognise behavioural problems and help curtail the self injurious behaviour.

15 It was also submitted that the Tribunal made no assessment of whether the school's contention that “overdependence” was an appropriate basis for declining to provide one-on-one assistance and made no reference to the evidence of Ms Pisani which tended to support the appellant’s position.

16 While it may be, as a counsel of perfection, that the Tribunal could have been more explicit in indicating the extent to which it found the underlying facts referred to in its summary of the competing submissions, it seems to us that a fair reading of the reasons indicates the factual matters which the Tribunal took into account. Many of the matters identified, indeed, were not in dispute and did not require factual findings. What was required was the exercise of judgment as to what should in competing circumstances and within the bounds of reasonableness best be done in Helen's interests bearing in mind that the decision maker, i.e. the school principal, had to make his or her decision over a relatively short period based upon the very same considerations which the Tribunal took into account. None of the matters mentioned seems to be irrelevant nor does it appear to us that the Tribunal failed to take into account a relevant matter. Where, as in this case the issue is one of reasonableness there comes a point as contemplated in Ex parte Palme where it is impossible to articulate reasons as fully as might, in hindsight, be thought desirable. At that point, which is not delineated by a bright line, the Tribunal had to exercise judgment. Reading the reasons as a whole we are satisfied that the Tribunal did what was required of it by Waters, it weighed the relevant facts and reached a decision upon them. A decision which in our opinion was well justified by the evidence. It would be no light thing to categorise as unreasonable a decision taken by experienced teachers who were undoubtedly concerned for the welfare of Helen and were doing what they thought was best in her interests while justifiably also taking into account their other responsibilities.

17 The issue which the Tribunal took upon itself to decide was whether it was not reasonable in all the circumstances of the case to require Helen to undertake her education in the absence of a one-to-one supporter and carer. To state the issue thus exposes the fundamental difficulty in the case alluded to earlier. The respondent did not require Ms Phu to comply with that requirement. It simply decided not to provide the further care which her father thought should be provided.

18 But accepting that we should decide on appeal whether the Tribunal erred in law in the manner it decided the issue which it and the parties saw as relevant to the case we are unable to detect such error.

19 As a separate ground of appeal the appellant argued that the Tribunal erred in law in paragraph 10 of its reasons in referring to the Disability Standards for Education 2005:

10 He also raised the Disability Standards for Education 2005. These standards are made under the Disability Discrimination Act 1992 (Cth) . These proceedings concern a complaint regarding the AD ACT and this Tribunal has no power to make any determination regarding a breach of the Disability Standards for Education 2005 .

20 We agree that the Tribunal should have regarded the standards as providing a norm or reasonable expectation of the standards an educational institution should seek to achieve and to that extent could be relevant to the Tribunal's decision. However, the Tribunal in paragraph 10 of its reasons for decision was not refusing to have regard to the standards as providing a norm or reasonable expectation of the standards, to the extent that they may be relevant. All it was saying is that its power did not extend to making determinations of breach of those standards made under a Commonwealth Act. Further, the standards are expressed in very general terms and, in our opinion, identify in substance no further matters which the Tribunal ought to have but did not take into account as factors to be weighed.

21 It was also submitted as a separate ground of appeal that the Tribunal asked itself and answered the wrong question namely in paragraph 113 of the reasons it found that it was “not satisfied that the respondent acted in a way that was not reasonable by imposing the requirement that in 2006 Ms Phu access her education in the absence of full-time one-to-one care and support from a teacher’s aide” whereas it should have answered the question whether the requirement was not reasonable in the circumstances of the case.

22 The heading to paragraphs 84 to 104 is “Not reasonable in all the circumstances of the case” suggesting that the Tribunal at least asked itself the correct question even if answering a question formulated in a slightly different way. We do not agree with the appellant’s submission that the Tribunal's language reveals the “fundamental mistake” of analysing reasonableness as a subjective criterion. In our view the different verbiage merely highlights the difficulty of fitting the circumstances of this case into s 49B of the Act. We are of the opinion that a fair reading of the reasons indicates that an objective test was applied and paragraph 113 at most reflects an infelicity of language.

23 It follows from what we have said that the appeal in so far as it raises questions of law should be dismissed. In that circumstance as we understand the appellant’s submissions there is no application to extend the appeal to the merits and to permit further evidence in the form of a report by Dr Kirsty Young. We will accordingly formally refuse to extend the appeal.

24 The Appeal Panel makes these orders:

1. Appeal dismissed.

2. Leave to extend appeal to merits refused.

3. No order as to costs.