Shaw v Secretary Department of Education

[2020] NSWCATAD 243

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Shaw v Secretary Department of Education [2020] NSWCATAD 243

Hearing dates:

11 September 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Ludlow, Senior Member

Decision:

Leave is granted for the following complaint to proceed :

(a) That the respondent discriminated against Patrick Shaw on the ground of his disability contrary to s 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.

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

Catchwords:

EQUAL OPPORTUNITY - application for leave to proceed with complaint – disability discrimination in education – whether nature of complaint has changed – whether amendment permissible – whether fair and just to grant leave to proceed

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73

Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

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

Representation:

Solicitors”
Applicant (Self Represented)
Respondent (Self Represented)

File Number(s):

2020/00223815

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Rebecca Shaw, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with a complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act) on behalf of her son Patrick Shaw. On 10 February 2020 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from Ms Shaw against the respondent, the Secretary of the Department of Education. The complaint alleged that the respondent had not implemented agreed strategies in an Individual Educational Plan (IEP) for Patrick Shaw resulting in a decline in his learning outcomes and that this constituted discrimination on the grounds of disability. The complaint was identified as a complaint of disability discrimination in education under ss 49B and 49L of the AD Act.

2. The President declined the complaint on 20 July 2020. The President’s report does not specify any reason listed under s 92 of the AD Act (see below) but it stated that the complaint was declined because the complainant had not provided any information capable of establishing that Patrick had been treated less favourably, denied access to a benefit or subjected to any other detriment than another student in the same or similar circumstances on the ground of his disability, or at all.

3. On 21 July 2020 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

4. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).

5. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

6. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

7. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

8. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

9. In assessing the available evidence, the Tribunal is to take the applicant’s case at its highest, by accepting that everything which she has put in evidence is true and then determine whether she could possibly succeed in her complaint (Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73).

The nature of the complaint

10. Mrs Shaw is the mother of Patrick Shaw who is a student at a school operated by the respondent. He has the condition dysgraphia, which makes handwriting difficult for him, as well as autism spectrum disorder Level 2 and high levels of anxiety.

11. The complaint centres around the IEP (also sometimes referred to as an Individual Learning Plan and a Personalised Learning Support Plan ) developed for his education.

12. Section 49B of the AD Act 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.

(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.”

13. Section 49L 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.

(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.”

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:

1. Unreasonably requiring the student to access specialist services to enable learning outside the school and outside school hours;

2. Unreasonably requiring him to use handwriting for his studies rather than a laptop;

3. 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:

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

2. 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)).

19. A complaint may be amended under 91C of the AD Act while it is still before the President of the Anti-Discrimination Board. This did not occur. Once a complaint is before the Tribunal, amendment may occur pursuant to s 103 of the AD Act which 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.”

20. In Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34 it was held that a complaint referred to the Tribunal at the request of a complainant under s.93A of the AD Act may not be the subject of proceedings before the Tribunal without the leave of the Tribunal; and before leave has been granted under s.96(1) there are no proceedings before the Tribunal. Accordingly, the Tribunal has no power under s.103 to amend the complaint at the leave to proceed stage either on the application of a party or on its own motion.

21. If leave is granted to the original complaint or any part of it, the applicant may then seek leave to amend that complaint under s 103. The question then is whether the applicant should be granted leave to proceed with the original complaint or any part of it, applying the standard principles. Accordingly in determining whether to grant leave I will be considering the original complaint. If leave is granted it is for the complainant to seek leave to amend the complaint if she wishes.

22. While the complaint was originally that the respondent had failed to implement the agreed strategies in the IEP, this could fall under either s 49B(1)(a) or (b). The President’s report notes that the respondent denied both that it had treated Patrick less favourably or been required to comply with an unreasonable condition or requirement. In her response to the respondent’s reply to the original complaint, Ms Shaw stated that she believed that the respondent was breaching section 49B(1)(b) and s 49L(2).

23. In construing the original complaint which was before the Board I consider that the allegations were:

1. That the respondent required Patrick to comply with an unreasonable requirement with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, and with which he was unable to comply, contrary to s 49B(1)(b) –

1. to use handwriting in school rather than a laptop

2. to not miss certain classes during school hours.

2. that the respondent subjected Patrick to a detriment, namely a decline in his learning outcomes, on the ground of his disability (s 49L(2)(c)).

Evidence and submissions

24. As evidence that her son was required to handwrite, Ms Shaw provided evidence of his school exercises. The IEP stated that he would use a laptop to type when needed during writing activities and trial voice to text function. A SLSO would scribe for him when needed. Another strategy was for him to have handwriting lessons weekly. Ms Shaw said that instead he had been required to handwrite more than was reasonable.

25. There is no actual evidence that the school subjected Patrick to a requirement not to miss lessons during school hours. This issue arose when the respondent wrote in its reply to the complaint that he had missed a number of learning opportunities due to attending therapy in school hours. This was put forward as an alternative explanation for any decline in his learning outcomes. Ms Shaw responded to this, stating that this was agreed with the school and was designed to minimise missing significant classes.

26. As to the possible detriment to his learning, Ms Shaw said only 5% of the IEP was implemented, his sentence structure had declined from the 66^th percentile to the 13^th percentile, and his handwriting had also declined.

27. The respondent stated that the IEP strategies are tools to guide the teacher in achieving the plan, and how, when and what strategies are used is a matter for the professional judgement of the teacher. Staff at the school had undertaken a range of learning activities which were specific to his identified needs.

28. The respondent denied that only 5% of the IEP had been implemented and submitted that this applied only to the first goal in the IEP. It also submitted that his outcomes in certain classes were affected by him missing lessons because he was at therapy sessions. He had missed key learning opportunities in various subjects including writing. His handwriting decline was attributed by his occupational therapist to his executive functioning difficulties and a recently diagnosed visual-motor delay. His psychologist also identified impairment in written expression due to a learning disorder. It concluded he would benefit from consistent school attendance.

Consideration

29. As this is a leave hearing, it is not necessary for the applicant to prove her case, but she must establish that it is fair and just for her case to proceed. In my view it appears possible that Ms Shaw could establish that the respondent acted contrary to the AD Act by requiring Patrick to comply with an unreasonable requirement to use handwriting in school contrary to s 49B(1)(b). It does not appear possible that she could establish that he was required to attend school during school hours however, as this was not a requirement by the school at the time.

30. As to whether she could establish that the respondent subjected her son to a detriment in his learning outcomes contrary to s 49L(2)(c), clearly there is fairly specialised evidence on either side of the argument and the facts could only be determined at a hearing of that evidence. I consider that it is fair and just that the applicant have that opportunity.

Order

1. Leave is granted for the following complaint to proceed :

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

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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: 02 October 2020