Shaw v Secretary, Department of Education

[2021] NSWCATAD 95

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Shaw v Secretary, Department of Education [2021] NSWCATAD 95

Hearing dates:

15 March 2021

Date of orders:

19 April 2021

Decision date:

19 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 21 July 2020 and to which leave was granted on specific terms by this Tribunal on 2 October 2020 is amended to incorporate the following complaints against the Respondent within the period 22 July 2019 to 18 December 2019:

1 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick will use visual organisers, including concept maps, webs, diagrams, drawings to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text from a short video or picture book, with limited support. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

2 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks (eg Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

3 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

4 The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing for him to feel like his problems are listened to and resolved. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

5 That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline of his learning outcomes.

6 That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(a) of the Anti-Discrimination Act by denying him access to benefits provided by the School, specifically each of the strategies identified in the IEP/PLSP of Semester 2, 2019.

Catchwords:

HUMAN RIGHTS – discrimination – whether power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW) should be exercised

Legislation Cited:

Anti­-Discrimination Act 1977

Civil and Administrative Tribunal Act 2013

Cases Cited:

Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54

McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299

Shaw v Secretary, Department of Education [2020] NSWCATAD 243

Thompson v Rail Corporation NSW [2008] NSWADT 329

Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Rebecca Shaw obo Patrick Shaw (Applicant)
Department of Education (Respondent)

Representation:

Counsel:
K Lloyd (Respondent)

Solicitors:
Applicant (Self-Represented)
McCabe Curwood (Respondent)

File Number(s):

2020/00223756

Publication restriction:

Nil

reasons for decision

1. On or around 8 February 2020 Rebecca Shaw (the Applicant) lodged a complaint of disability discrimination with the NSW Anti-Discrimination Board (the ADB) on behalf of her son, Patrick. Patrick has been diagnosed with dyspraxia, dysgraphia and autism spectrum disorder. The subject of the Applicant's complaint at that time, was that Patrick’s School, Rous Public School (the School) had failed to adequately implement the agreed accommodations in Patrick’s Personalised Learning Support Plan (PLSP) between 22 July 2019 to December 2019 (Semester 2). As a result of the School's failure, the Applicant alleged that Patrick's sentence structure assessment declined from the 66th percentile to the 13th percentile, equivalent to almost three years below his chronological age; and Patrick's handwriting assessment declined from 63rd percentile to 19th percentile.

2. On 20 July 2020, the ADB declined the Applicant's complaint under section 92 of the Anti­Discrimination Act 1977 (the Act), on the basis that it was lacking in substance. On 21 July 2020, the ADB referred the Applicant's complaint to this Tribunal under section 93A of the Act.

3. On 2 October 2020 the Tribunal granted leave to the Applicant pursuant to s 96 of the Act to pursue part of the complaint against the Respondent, specified as follows (the Complaint):

1. That the Respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely to use handwriting in school rather than a laptop.

2. That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline in his learning outcomes.

4. On 9 February 2021 the Tribunal made orders extending the time for the Applicant to make an Application for leave to amend the Complaint, pursuant to s 103 of the Act. On 9 February 2021, the Applicant sent an email to the Tribunal, copying in solicitors for the Respondent, seeking to amend the Complaint to include the following allegations:

1. The School failed to adequately implement twenty-six adjustments stipulated in Patrick's PLSP in Semester 2, 2019;

2. By failing to adequately implement all twenty-six adjustments, Patrick has been required to handwrite, instead of using assistive technology such as a laptop, voice to text or voice recording, which is unreasonable given his disability; and

3. Patrick has been denied access, or limited access to the twenty-six adjustments or 'benefits' provided by the Department of Education, which in turn have subjected him to a detriment.

5. The Applicant listed the twenty-six 'adjustments' in the Complaint which formed the basis of Patrick's PLSP as follows:

1

Patrick to use a Laptop to type when needed during writing activities

2

Patrick to participate in one lesson per week on Typing.com via his account. Completion, speed and accuracy monitored.

3

Writing to be saved to USB for review by Rachel Wastell

4

Patrick to trial Voice to text function on computers / laptop to organise his thoughts

5

Team teaching in writing with LaST 4 times per week

6

Discuss planning prior to writing such as topic knowledge, vocabulary, language features and text structures

7

Support for Patrick to use headings, visual organisers, questions and mind maps

8

SLSO to scribe for Patrick when needed during writing activities

9

Prompt using correct finqers durinq typinq activities

10

Emotional support and focus durinq writinq tasks

11

Explicit Handwritinq instruction

12

Weekly lessons focussing on a different letter and sentence

13

Teacher and SLSO to prompt starting points for each letter and use of guidelines in exercise book

14

Teacher/ SLSO - Explicit and visual instruction on the rules of the game and activities

15

Establishment of rules and agreeance before commencement (Group Plan Teacher/SLSO)

16

Instruction on the rules of Touch Football and practice with peers in lead up to an organised Gala Day

17

SLSO/Teacher - explicit and visual instruction on the skills for each game/activity

18

Prompts to recognise missed social cues, using 'We Thinkers' and PBL Vocabulary

19

Emotional support to persevere with difficult tasks eg rest breaks, discussions

20

Participate in collaborative proactive problem solving with class teacher when required

21

Implement reflective Listening strategies to prompt Patrick to outline his concerns

22

Outline adult concerns, to assist Patrick to appreciate another person's perspective or point of view

23

Prompt Patrick to consider solutions to the identified problem

24

Utilise a modified version of the Problem Solving Plan

25

Proforma used

- Unsolved Problem at the top - identified by Patrick

- Child Information – identified by Patrick

- Teacher Adult information – identified by Teacher

- Agreed Solution - developed during collaborative discussions, signed and dated by the teacher and Patrick

- Problem Solved Yes/No - Signed and Dated by Patrick and Teacher

26

Only work on three issues at a time and defer other non-important issues

- Record any agreed accommodations in teacher records and 'problems solved' book for Patrick

- Assist Patrick to complete Reflection Sheet following incidents of unexpected behaviour

6. The Respondent opposed the amendment of the Complaint.

Legal principles

7. Section 103 of the Act provides:

103 TRIBUNAL MAY AMEND COMPLAINT

(1)   The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2)   A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3)   An amendment may be made subject to such conditions as the Tribunal thinks fit.

8. The Tribunal may exercise its discretion to amend a complaint in broad terms as set out in s 103 of the Act. The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 (Thompson) and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 (McCrystal) at [10]- [12]:

In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT’s predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38].

The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred.

In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]:

The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant:

•   Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)).

•   Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.

•   Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.

•   Whether the proposed amendment raises any issue of joinder.

•   Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.

•   Whether if refused/granted, any party might be prejudiced.

•   Whether the party making the application is in default of previous orders.

9. The objects of the Civil and Administrative Tribunal Act 2013 at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion.

10. Section 49B of the Act relevantly provides:

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 the perpetrator--

(a)   on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 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.

11. Section 49L of the Act relevantly provides:

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.

…

(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.

Consideration

The proposed amendments

12. The Applicant claimed that the proposed amendments clarified the scope of her Complaint to incorporate each of the 26 separate “adjustments” in the IEP/PLSP as a separate act of discrimination, as each adjustment equated to a separate benefit lost, or detriment suffered by her son. On examination of those 26 adjustments and their source, the Applicant clarified for the Tribunal that they were extracted from the column titled “Goal/Activities/Strategies/Materials” expressed in the IEP for 2019 Semester 2. With reference to the table above at 11:

1. Adjustments 1 – 10 were strategies for achieving for ‘SMART Goal 1’, to address Patrick’s dysgraphia:

By the end of Term 4, Patrick will use visual organisers, including concept maps, webs, diagrams, drawings to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text from a short video or picture book, with limited support.

2. Adjustments 11 – 13 were strategies for achieving ‘SMART Goal 2’, to address Patrick’s dyspraxia:

By the end of Term 4, Patrick to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks (eg Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook.

3. Adjustments 14 – 19 were strategies for achieving ‘SMART Goal 3’, to address Patrick’s social skills and physical behaviour:

By the end of Term 4, Patrick to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised.

4. Adjustments 20 – 26 were strategies for achieving ‘SMART Goal 4’, to address Patricks’ emotional skills, problem solving issues and anxiety resulting in his school refusal:

By the end of Term 4, Patrick to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing for him to feel like his problems are listened to and resolved.

13. The Complaint as characterised by the Tribunal in its decision of 2 October 2020 only addressed the requirement or condition under s 49B(1)(b) of the Act “to use handwriting rather than a laptop”. The use of a laptop instead of handwriting was only one strategy proposed by the School to assist Patrick in reaching his goals under the IEP/PLSP, in relation to his dysgraphia. Confining the Complaint to that one example of how a condition or requirement was imposed ignored the other strategies identified by the School in the IEP/PLSP to assist Patrick with his dysgraphia, dyspraxia, and the physical, social and emotional characteristics of his autism spectrum disorder, which I accept the Applicant had always intended and attempted to express as part of her Complaint.

14. The Applicant gave evidence that she did not understand how to describe or make her complaint effectively in legal terms, which I accept. The Applicant provided the ADB with documentation which she believed identified the discriminatory conduct engaged in by the Respondent. She responded to the communications from the ADB seeking to clarify her complaint against the Respondent, and when prompted by the ADB conciliation officer to consider ss 49B and 49L of the Act, stated:

We believe that the Department is breaching section 49B(1)(b) by imposing a term or condition upon Patrick that in order for him to receive appropriate literacy education, he needs to be present at school during all school hours…

However, we believe that the Department is failing to implement these adjustments effectively, as if Patrick was being given the appropriate amount of literacy support, such as typing, one on one literacy support with a support person employed particularly to assist in that, then we believe his literacy progress would have been greater than it has been.

We also believe that the Department is breaching section 49L(2) of the Act, as by not ensuring that he has access to the agreed upon literacy adjustments, he is being denied the benefit of an appropriately adjusted literacy education…

15. The ADB summarised the Complaint with reference to the relevant provisions of the Act, but did not include all the relevant aspects or particulars of the Complaint as expressed by the Applicant. Once declined by the ADB and referred to the Tribunal, leave to pursue the complaint was granted in the terms identified at 9 above. Those terms did not encompass the intended breadth or detail of the Applicant’s Complaint against the Respondent’s conduct towards her son.

16. It was clear at hearing that the Applicant did not understand what evidence or submissions she was required to provide to the Tribunal to support her application to amend the Complaint. She had attempted to comply with the Tribunal’s directions of 21 October 2020 and on 9 December 2020 had filed a bundle of approximately 300 pages, including 32 pages addressing the nature and scope of her Complaint, the legislation and policies she believed were relevant, and the failures she alleged formed part of the conduct engaged in by the School and the Department of Education. The remainder of the bundle included the supporting documentation for her Complaint.

17. Significantly, the Applicant identified at page 3 under the heading ‘Discrimination’:

The Personal Learning Support Plan   for Patrick Shaw for semester two 2019 outlines four Adjusted Learning Outcomes, which the DoE terms Goals. Within these Goals there are 26 agreed adjustments, which the DoE terms Strategies. These adjustments: a) were partially implemented; or b) there is no evidence to show were implemented.

Each of the adjustment listed in the PLSP:

•   is an agreed adjustment, outlined as an appropriate support for students with and without a disability in both Department of Education and NSW Education Standards Authority (NESA) resources;

•   is a benefit regularly implemented by   DoE support services to students with and without a disability across NSW; and

•   received funding from the DoE under the Integrated Support Funding (ISF) program for implementation, and did not impose unjustifiable hardship.

By failing to implement the agreed adjustments Patrick has

•   required to handwrite, instead of using assistive technology such as a laptop, voice to text or voice recording, which is unreasonable given his disability, specifically his diagnosis of Dyspraxia and Dysgraphia

•   been denied access, or limited access, to 26 benefits provided by the DoE which in term have subjected him to detriment.

This discrimination occurred between 22 July 2019 and 18 December 2019.

18. The Applicant submitted that the whole of her complaint and the supporting documentation she had compiled was before the ADB, and she did not understand why only one aspect of the complaint had been considered by the ADB. That had then resulted in the Tribunal characterising her Complaint incorrectly, in its decision of 2 October 2020 which had granted her leave to pursue the Complaint in these proceedings.

19. The characterisation of the Complaint was addressed by the Tribunal in its leave decision at [14] to [18] of Shaw v Secretary, Department of Education [2020] NSWCATAD 243 (‘the Leave Decision’):

14.   During the hearing of the application for leave, it became apparent that the parameters of the complaint had changed from what was before the Anti-Discrimination Board.

15.   The original complaint alleged firstly that the respondent had failed to implement the IEP and that this failure had resulted in a decline in his learning outcomes in the areas of handwriting and sentence structure.

16.   The IEP contained a number of strategies, including that Patrick would use a laptop to type when needed during writing activities. Mrs Shaw claims that this did not happen, he was made to write by hand more than was reasonable and that this had a detrimental effect on his learning.

17. At the hearing, Mrs Shaw submitted that the respondent had breached s 49B(1)(b) by:

(a)   Unreasonably requiring the student to access specialist services to enable learning outside the school and outside school hours;

(b)   Unreasonably requiring him to use handwriting for his studies rather than a laptop;

(c)   Requiring him to attend school during all school hours when he had limited absences to attend therapy support.

18.   She also claimed that it had breached s 49L by:

(a)   Denying him access to the benefit of a learning and support teacher for his writing (s49L(2)(a))

(b)   Subjecting him to the detriment of his learning outcomes declining as a result of the failure to implement the necessary adjustments (s 49L(2)(c)).

20. The Applicant has maintained since seeking leave under s 96 of the Act that the ADB mischaracterised her Complaint. In evidence at the hearing she explained that she had provided the ADB with all the relevant documents but “no one ever rang” to discuss the characterisation or scope of her complaint with her.

21. The Respondent suggested that the Applicant had only identified Patrick’s dyspraxia for the first time in the documents she filed with the Tribunal on 9 December 2020, and that the adjustments relevant to that condition had not been before the ADB. I disagree with this submission on the basis that all the evidence demonstrates that the 26 ‘adjustments’ and the Respondent’s failure to implement them were part of the Applicant’s complaint against the Respondent, whether or not she had previously specifically referred to her son’s dyspraxia in addition to his dysgraphia and other characteristics related to his autism.

22. I do not agree with the Applicant’s submission that each of the 26 ‘adjustments’ constituted a separate act of discrimination under s 49B(1)(b) of the Act. From my examination of the IEP/PLSP and the Applicant’s evidence, there are four identifiable requirements or conditions which could be included as discrimination pursuant to s 49B(1)(b) of the Act, expressed as the ‘SMART Goals’. The 26 strategies or adjustments are identified in the IEP/PLSP as steps or methods to achieving those goals collectively, and I would characterise them as particulars of the discrimination for each respective goal.

23. On my understanding of the Applicant’s complaints against the Respondent, on the basis of the evidence and submissions before me, I characterise the Applicant’s proposed amendment of the Complaint under s49B(1)(b) to be:

1. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick will use visual organisers, including concept maps, webs, diagrams, drawings to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text from a short video or picture book, with limited support. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

2. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks (eg Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

3. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

4. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing for him to feel like his problems are listened to and resolved. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

24. The Applicant also submitted that the Respondent’s failures in implementing each of the 26 adjustments/ strategies was a separate ‘detriment’, or a denial of access to a ‘benefit’ pursuant to s 49(L)(2)(c) or 49(L)(2)(a) of the Act. The Leave Decision construed that the original complaint to the ADB only included as a detriment under s 49L(2)(c) a decline in learning outcomes, which is why leave was granted to that part of the Complaint. However the Applicant’s description of her allegations under s49L(2) always included the denial of benefits as well as the subjecting of Patrick to detriments, both in relation to “the agreed upon literacy adjustments”.

25. The Applicant submitted that “Each of the adjustment[s] listed in the PLSP… is a benefit regularly implemented by DoE support services to students with and without a disability across NSW”. Whether that is the case is a matter for evidence and submissions at the substantive hearing, if the amendment is accepted. It is not an ‘untenable’ argument that each of the 26 “adjustments” relied on by the Applicant, referred to as “strategies” in the IEP/PLSP and expressed above at 11, would actually constitute a ‘benefit’ for the purposes of s 49L(2)(a) of the Act. However as the Applicant has addressed them collectively, rather than identifying each specific ‘adjustment’ or ‘strategy’ that could constitute a benefit with reference to appropriately individualised particulars, it is difficult to understand the exact form the Applicant is wishing the Tribunal to consider as its proposed amendment in relation to that aspect of her Complaint. Additionally I do not think the 26 “adjustments” or strategies would constitute a “detriment” under s49L(2)(c) of the Act – rather, it is arguable that the Respondent’s failure to implement them resulted in the detriment of Patrick’s learning outcomes decline.

26. On my understanding of the Applicant’s complaints against the Respondent, on the basis of the evidence and submissions before me, I therefore characterise the Applicant’s proposed amendment of the Complaint under s49L(2) to be:

1. That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline of his learning outcomes.

2. That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(a) of the Anti-Discrimination Act by denying him access to benefits provided by the School, specifically each of the strategies identified in the IEP/PLSP of Semester 2, 2019.

The Tribunal’s discretion

27. The Respondent submitted that the Applicant’s allegations had been investigated and declined by the ADB, and that the Tribunal had already considered the scope of the Applicant’s claim in the leave application of 2 October 2020, and had confined the claim to the Complaint at that time. The Respondent Applicant submitted that the Tribunal’s previous confinement of the Complaint should not be disturbed, and that doing so would be prejudicial and unfair to the Respondent because it had already submitted its Points of Defence. Allowing the amendment to the Complaint would thereby prolong lengthy proceedings and require the Respondent to incur further costs.

28. The Respondent also submitted that the proposed amendments did not disclose any factual basis for a further allegation of discrimination based on disability:

…the amendment sought is to merely include a list of items noted in Patrick’s PSLP, to which the Applicant is unsatisfied with the School’s chosen methods of implementation.

29. The Respondent submitted that there was no evidence demonstrating that the Respondent treated the Applicant less favourably to other students or had imposed some unreasonable condition or refused to make accommodation for his disability, so the proposed amendments would not satisfy the criteria at s 49B of the Act.

30. As noted in the Leave Decision, the Tribunal’s role in the leave proceedings under 96 of the Act was to determine whether the complaint made to the ADB should be the subject of leave. Once leave was granted, “the applicant may then seek leave to amend that complaint under s103”. Having reviewed the Tribunal’s decision I do not agree with the Respondent’s submission that the scope of the Applicant’s Complaint has already been determined and confined by the Tribunal, and this could therefore not be disturbed. The leave decision addressed the Complaint as characterised by the ADB, and clearly anticipated that the Applicant would be able to make amendments once leave was granted, subject to the Tribunal’s consideration of those amendments pursuant to s 103 of the Act.

31. I also do not agree with the Respondent’s submission that the proposed amendments would not satisfy the criteria at s 49B of the Act, because the Applicant had not provided evidence of the Respondent treating Patrick less favourably to other students, or that the Respondent had imposed some unreasonable condition or refused to make accommodation for Patrick’s disabilities. The Applicant’s Complaint, as I understand it, relies on s 49(B)(1)(b), not s 49B(1)(a). The Applicant does not need to have provided the evidence to make out the Complaint for the purpose of the Tribunal’s consideration of the proposed Amendments. The Tribunal needs to determine whether, if the Applicant makes out the factual allegations, that could constitute the relevant discrimination. In my view it could, so the proposed amendments are tenable.

32. The Respondent did not put on any evidence of specific prejudice it claims it would suffer by amendment of the Complaint at this stage of the proceedings. Whilst the Points of Defence have, indeed, been prepared and filed in accordance with the Tribunal’s previous orders, and the Applicant has filed some evidence, there has been no evidence filed or served to date by the Respondent, and no witness statements or affidavits filed. The Applicant stated at hearing that she would still be relying on the material filed 9 December 2020 if the amendment application was granted, although she may wish to put on additional evidence. I accept that the Respondent will suffer the presumed, general prejudice which a party to proceedings could incur as a result of an amendment to the case it had anticipated or prepared, but consider that little weight should be afforded to this consideration in these circumstances where there is no specific prejudice identified or supported by evidence, where the factual circumstances have significant overlap and commonality, and where the filing and service of evidence in support of the substantive application has not been completed.

33. The Applicant gave evidence that if the amendment application was declined, she would be pursuing the remaining scope of her Complaint against the Respondent afresh with the ADB, which could similarly be ultimately referred to the Tribunal to be determined, on the same factual circumstances, with common evidence.

34. Considering the criteria identified in Chand, I consider that the proposed amendments to the Complaint are directly related to and form part of the Complaint as currently characterised by the Tribunal. With reference to the additional criteria identified in Thompson and McCrystal:

1. The original complaint was declined by the ADB pursuant to s 92(1)(a)(i) and it is likely that the proposed amendments would therefore also be declined. However the declinature was the subject of a successful application for leave in this Tribunal, and so I afford this consideration limited weight;

2. I do not consider the proposed amendments are futile or that they seek to pursue claims which are untenable;

3. The proposed amendments would obviate the Applicant’s professed intention to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs;

4. The proposed amendments do not raise any issue of joinder;

5. The allegations contained in the proposed amendment do not form part of a complaint lodged with the President that has yet to be determined or referred. I would characterise the proposed amendments as part of the complaint lodged with the President which was referred as has become the subject of these proceedings;

6. I place little weight on the Respondent’s prejudice, for the reasons discussed above;

7. Any default of previous orders by the Applicant is explicable in the circumstances.

35. In the circumstances I consider that it is appropriate for the Tribunal to amend the Applicant’s Complaint in the terms discussed above.

Orders

36. The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 21 July 2020 and to which leave was granted on specific terms by this Tribunal on 2 October 2020 is amended to incorporate the following complaints against the Respondent within the period 22 July 2019 to 18 December 2019:

1. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick will use visual organisers, including concept maps, webs, diagrams, drawings to organise information concretely and visually. Writing to consist of 5 paragraphs, retelling a narrative/persuasive text from a short video or picture book, with limited support. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

2. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to use correct formation and joins to complete weekly handwriting lessons and for him to work on handwriting conventions for simple writing tasks (eg Short answers, writing spelling words or copying what a scribe has written so it is in his own writing) in a 6mm ruled workbook. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

3. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to participate in at least two 20 minute gross motor structured play sessions, with 2-4 peers, each week, organised in conjunction with the SLSO and supervised. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

1. The respondent discriminated against Patrick Shaw on the grounds of his disability contrary to section 49B(1)(b) of the Anti-Discrimination Act 1977 by requiring him to comply with a requirement or condition, namely: By the end of Term 4, Patrick to be able to communicate any unsolved problems or issues he is having in the school environment in a collaborative discussion, thus allowing for him to feel like his problems are listened to and resolved. The requirement was not reasonable having regard to the circumstances of the case (including, but not limited to, the strategies proposed in the IEP/PLSP and their implementation) and Patrick’s ability.

2. That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(c) of the Anti-Discrimination Act by subjecting him to a detriment, namely a decline of his learning outcomes.

3. That the Respondent discriminated against Patrick Shaw on the ground of his disability contrary to section 49L(2)(a) of the Anti-Discrimination Act by denying him access to benefits provided by the School, specifically each of the strategies identified in the IEP/PLSP of Semester 2, 2019.

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

Registrar

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: 19 April 2021