YB v State of Queensland

[2010] QCAT 395

CITATION: YB v State of Queensland [2010] QCAT 395

PARTIES:	YB
v
State of Queensland

APPLICATION NUMBER:   ADC001-09

MATTER TYPE: Anti-Discrimination Matters

HEARING DATE:     17 May 2010 – 21 May 2010 and 29 June 2010

HEARD AT:  Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 16 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The complaint is dismissed

CATCHWORDS :  IMPAIRMENT DISCRIMINATION – EDUCATIONAL SERVICES – indirect discrimination - where phonological disorder and organisational difficulties - whether section 11 of the Anti-Discrimination Act 1991 made out 

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	YB was represented by JB until 19 May 2010 and from then YB represented himself
RESPONDENT:	Dr M Spry of Counsel instructed by Crown Law

REASONS FOR DECISION

1. YB is a year 12 student in Brisbane who has been assessed as having above average intelligence but his academic achievements in high school have been below average and he will not obtain a tertiary entrance result at the end of year 12.  YB contends that he has a learning disability. 

2. At primary school YB had been provided with learning support and when he commenced year 8 at high school in 2005, YB was provided with learning support including assistance from a learning support case manager, Mr P.  In 2006 YB was in year 9 and his learning support case manager was Ms F who delivered learning support to YB in a different manner to Mr P. 

3. In late November 2006 YB underwent an assessment of his visual-perceptual processing functioning by Peter Freney who has qualifications in education (but not in any allied health science or medicine) and YB was diagnosed with a visual-perceptual dysfunction called scotopic sensitivity.   Mr Freney dispensed tinted lenses to be worn in glasses by YB to help alleviate the effects of scotopic sensitivity.    

4. In 2007 YB was in year 10 and EJ was his learning support case manager.  Close to the start of the school year, YB’s classroom teachers were informed by his learning support case manager and by KH, the school principal, of the particulars of the learning support to be provided by them to YB that year.   

5. In June 2007 YB complained that he was being subjected to unlawful discrimination by the State of Queensland in the provision of educational services by Education Queensland at M State High School.  His complaint had been made through his mother, JB, as his agent.  JB acted as a parental advocate for YB at his school and was proactive in raising issues about YB’s education with the principal of the school and with other senior staff, classroom teachers and learning support staff.

6. YB turned 18 years of age on 13 May 2010.  He affirmed the complaint made on his behalf by his agent and he took over the conduct of the complaint in the Tribunal.  A hearing of the complaint took place in the Tribunal over six days in May and June 2010.  Associate Professor Richard Roylance had been appointed as a medical assessor to assist the Tribunal with the medical and expert evidence produced by YB. 

7. Apart from the first two days of the hearing when YB was represented by JB, YB represented himself at the hearing.  The Deputy President of the Tribunal had appointed counsel to act on a pro bono basis for YB but counsel withdrew on 28 April 2010 after the Tribunal had not been able to arrange for solicitors to instruct counsel in the matter. YB had not been able to engage legal representation for the hearing although he had been legally represented for some period of time in 2009. 

8. The issues to be determined in the complaint are: whether YB has an impairment, whether the respondent has indirectly discriminated against YB on the basis of his impairment and whether YB should be compensated for the consequences of being subjected to unlawful discrimination by the respondent. 

9. In the contentions filed on his behalf and adopted by him at the hearing, YB has described his impairment in the following terms: a phonological processing disorder, scotopic sensitivity or Irlen syndrome, dyslexia or comparable visual and auditory processing problems affecting the development of efficient literacy skills especially the visual perception and processing of texts and technical aspects of writing, mild dysgraphia or comparable visual-spatial and visual-motor problems affecting the efficient production of handwriting and executive dysfunction affecting the recalling, planning and organisation of complex tasks. It is contended that the specified conditions or malfunctions result in YB learning more slowly than a person without the conditions or malfunctions.    

10. YB presented evidence to the Tribunal about the impairment described in the contentions.  In addition to evidence from YB and his mother JB, reports filed on behalf of YB and relied on by him at the hearing on the issue of impairment had been provided by the following persons who, apart from one person, supplemented their written evidence by further oral evidence at the hearing: Dr Michael O’Callaghan, Director Child Development and Rehabilitation Services for Mater Health Services, Peter Freney, Director of the Irlen Clinic, Nor Matassan, intern psychologist and Professor David Shum, Director of the Neuropsychology Clinic, Griffith University, Margaret Hardy of Dyslexia Testing Services Pty Ltd and Dr John Worthington, educational consultant and psychologist.

11. The written reports were not formally tendered into evidence by YB but are accepted by the Tribunal as part of the evidence, where relevant, to be considered in determining whether YB had an impairment for the purposes of this complaint. 

12. In his written statement filed on 26 March 2009, YB identified the problems with his learning in the following terms: not getting through his reading on time, spelling, lack of organisation in areas such as breaking down of tasks, needing clarification of tasks, difficulty with understanding written tasks, difficulty reading documents produced in point 8 or point 10 font, slowness in copying from the board, inability to complete assignments on time, not keeping up to speed with his work, not getting through his work on time, needing explanations as to how to write in a structured way, inability to read his texts, not able to read properly workbooks printed in small font and with poor quality reproduction, slowness in copying from overhead projections and not able to read properly revision sheets and assignments sheets printed in small font.

13. In his oral evidence, YB confirmed this list of problems he has identified with his learning and added that he has difficulty reading from texts printed on white paper due to the effect of glare from lighting reflecting off white paper and that he experiences a lack of organisational ability resulting in being late for school and forgetting appointments. 

14. His mother confirmed in her written and oral evidence the problems that YB had identified as having had affected his learning at high school.  She also confirmed the existence of the series of impairments that were described in the contentions filed on behalf of YB.

15. The respondent did not present any expert or medical evidence on the issue as to whether YB has a relevant impairment and did not admit that YB has an impairment relevant to his complaint.   

16. To determine whether YB has an impairment relevant to his complaint, the Tribunal has undertaken an analysis of the expert and lay evidence on this issue.  During the hearing the Tribunal had ruled that not all of the evidence presented by YB as expert evidence was accepted as amounting to expert evidence: Margaret Hardy from Dyslexia Testing Services Pty Ltd was not accepted as an expert witness.  The opinions expressed by Ms Hardy as to the nature of YB’s learning disability were not accepted by the Tribunal on the basis that she had not demonstrated expertise in the diagnosis of learning disorders but factual evidence as to the tests conducted by her and recommendations made as an experienced educator could be taken into consideration by the Tribunal.  

17. Dr Michael O’Callaghan is a paediatrician who has been involved in assessing YB in relation to his educational progress for over 10 years.  Dr O’Callaghan had reported in 2008 that YB was of normal intellectual ability but he had specific academic difficulties that reflect an earlier weakness in phonological decoding as well as a degree of weakness in executive functioning.  Dr O’Callaghan expressed the opinion that the phonological decoding disorder had affected YB’s spelling and his capacity to read quickly.  Dr O’Callaghan could find no underlying medical or neurological cause to explain YB’s difficulties.

18. At the hearing, Dr O’Callaghan expressed the opinion that YB had a learning disability of a mild degree.  Dr O’Callaghan stated that he could not identify a problem with YB’s visual processing that would preclude YB from reading print.  Dr O’Callaghan was of the opinion that YB’s difficulties with concentration and phonological decoding could result in problems with reading.  Dr O’Callaghan told the Tribunal that the medical evidence about scotopic sensitivity was extremely limited and the existence of such a condition had not in his opinion been validated. 

19. Peter Freney gave evidence that he had conducted an assessment of YB in November 2006 and he had diagnosed that YB had scotopic sensitivity or Irlen syndrome. Mr Freney described the condition as a visual-perceptual dysfunction of the brain which principally affects reading, study and writing/spelling activities. Mr Freney stated that he considered that YB’s case had been complicated by the presence of dyslexia.

20. YB had undergone screening tests for dyslexia in January 2008 at the Neuropsychology Clinic at Griffith University and in July 2008 by Margaret Hardy. Professor Shum from Griffith University had reported that the assessment in January 2008 had revealed that YB did not display a marked risk for a diagnosis of dyslexia. YB’s score in the assessment did not meet the cut-off for risk of this learning disorder.  The Word Reading and One Minute Reading subtests in the assessment revealed that YB was reading at an acceptable level which argued against dyslexia. 

21. The assessment conducted at Griffith University reported mixed findings.  The written report prepared following the assessment stated that YB appeared to achieve at an average intellectual ability with the only areas of weakness in spelling.  The report surmised that YB’s past difficulties with phonetics and sequencing possibly explained his then current problems with spelling.  The report concluded that the significant differences between YB’s achievement and ability scores for spelling suggest evidence of possible learning difficulties.       

22. Margaret Hardy had administered a similar dyslexia screening test in July 2008 and she had interpreted the results as capable of diagnosing YB with dyslexia as well as with mild dysgraphia. The Tribunal did not accept Margaret Hardy’s opinions as to diagnosis of dyslexia or dysgraphia as she had not demonstrated expertise in the diagnosis of learning disorders.  

23. The final component of expert evidence as to the existence of an impairment relevant to this complaint was provided by Dr John Worthington, an educational consultant and psychologist.  He had assessed YB in September 2008.  Dr Worthington identified learning weaknesses described as underlying phonic encoding and decoding weaknesses and weak written expression with spelling errors and word finding weaknesses. 

24. Dr Worthington described YB as having a mild to moderate delay in the identified areas of weakness between his actual performance and the predictive performance levels based on his intellectual abilities.  Dr Worthington stated that he does not diagnose learning disorders and his assessments look for delays between predictive performance and actual performance.    

25. It can be seen that the opinions of Dr O’Callaghan, Professor Shum and Dr Worthington, though expressed in different wording, coalesce to a common conclusion: that YB has significant problems with phonological decoding that have resulted in difficulties with spelling.  Dr O’Callaghan was of the opinion that the phonological disorder has an additional impact on YB’s reading speed and he considered that YB has a weakness in executive functioning manifested by concentration difficulties impacting on YB’s reading outcomes. Dr Worthington was of the opinion that the phonological disorder had also affected YB’s written expression and word finding skills.    

26. The Tribunal finds the opinion evidence of these expert witnesses to be credible.  They based their opinions on considered clinical assessments and they independently reached similar conclusions despite being provided with a background of disparate assessments and opinions gathered over more than 12 years by YB’s mother.  The Tribunal accepts the conclusions reached by those three expert witnesses that YB has a phonological disorder and accepts the conclusion of Dr O’Callaghan that YB has some weakness with executive functioning. 

27. The Tribunal does not accept the opinion of Peter Freney that YB has a disorder categorised as scotopic sensitivity which is said to be a visual-perceptual dysfunction of the brain. Unlike Dr O’Callaghan, Professor Shum or Dr Worthington, Mr Freney has no qualifications in medicine or psychology and the Tribunal was not satisfied that Mr Freney was qualified to diagnose disorders amounting to dysfunctions of the brain. 

28. The Tribunal accepts the opinion of Dr O’Callaghan that no medical or neurological cause has been found for the problems complained of by YB and that YB’s auditory and visual skills have consistently been found to be normal on testing. The Tribunal is satisfied that the evidence establishes that the results of the screening test for dyslexia conducted at Griffith University fell just below the cut off score for a risk of dyslexia. 

29. The Tribunal prefers the conclusions of Professor Shum from Griffith University that the evidence does not support a diagnosis of dyslexia over the interpretation reached by Margaret Hardy of the results of the dyslexia screening test she had conducted in July 2008.  Ms Hardy had in July 2008 conducted essentially the same bank of screening tests as Griffith University had conducted in January 2008.  Ms Hardy told the Tribunal that she had a fundamentally different approach to the interpretation of the results to that of Professor Shum. Ms Hardy considered that Professor Shum had enough evidence from the screening tests and from the other tests conducted by Griffith University to diagnose dyslexia as she had done. 

30. While the Tribunal acknowledges that Ms Hardy is an experienced educator with qualifications in learning support and special education, she had not demonstrated expertise in diagnosing dyslexia.  She had obtained a certificate in dyslexia in 2008 from the University of New York after completing a refresher course by email.  She had not undertaken approved research into dyslexia through a tertiary institution nor had she published any peer reviewed papers in that area of learning disorders.   Ms Hardy was accepted as an experienced practitioner in supporting students with learning problems but she was not accepted as an expert witness in the diagnosis of those problems.    

31. The Tribunal’s findings that YB has a phonological disorder and some weakness in executive functioning must be applied against YB’s contentions that he has an impairment within the meaning of the Anti-Discrimination Act 1991 (the Act).  YB has contended that he suffers from an impairment particularised in the following terms: a phonological processing disorder, scotopic sensitivity, dyslexia, mild dysgraphia and executive dysfunction. 

32.  The Tribunal rejects the contention that YB has the conditions of scotopic sensitivity, dyslexia or mild dysgraphia. The issue to be determined by the Tribunal is whether the existence of a phonological disorder and some weakness in executive functioning amounts at law to an impairment within the meaning of the Act.

33. The meaning of impairment for the purposes of the Act is found in the dictionary of the Act in the following terms: impairment, in relation to a person, means—

(a) the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
(b) the malfunction, malformation or disfigurement of a part of the person’s body; or
(c) a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
(d) a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
(e) the presence in the body of organisms capable of causing illness or disease; or
(f) reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

(g) presently exists; or

(h) previously existed but no longer exists.

34. YB contends that the conditions to which he is subject have resulted in his learning more slowly than a person without those conditions. There is evidence from witnesses in addition to the evidence of YB to support that contention.  Dr O’Callaghan gave evidence that at different stages of his schooling, YB’s academic performance has lagged behind his academic abilities. Dr O’Callaghan expressed the opinion that he did not consider it unreasonable for YB to be given additional time to complete his work as YB’s capacity to be productive is related to his ability to sustain concentration and memory skills.  The weakness in executive functioning impairs concentration and attention resulting in reduced productivity.   

35. The assessment by Dr Worthington revealed significant delays between actual measured skills in word decoding, spelling and written expression and predicted skills in those areas for a person of YB’s intellectual abilities.  Dr Worthington gave evidence that YB’s ability to undertake a task at a speed expected from students of his year level would tend to become compromised at the times when additional tasks were added to his load i.e. reading comprehension declines when he is required to produce at the same time written work with accurate spelling.       

36. The Tribunal concluded that the evidence establishes that YB takes longer than other students to absorb the subject matter of his subjects but he does ultimately reach an understanding of the subjects.  The Tribunal finds that there is satisfactory evidence that the Tribunal can accept that YB has a condition, namely a phonological disorder and a weakness of executive functioning, which results in YB learning more slowly than a person without the condition.  The Tribunal concludes that YB has an impairment within the meaning of the Act. 

37. YB has contended that between February 2006 and June 2007, or alternatively between June 2006 and June 2007, the respondent indirectly discriminated against him on the basis of his impairment.  In particular YB contends that the respondent imposed terms that, in order for a student to obtain the educational benefits offered by the respondent at M State High School and to prepare fully for assessment in Years 9 and 10, the student was required to read and absorb course materials printed in 8 or 10 point font, read and absorb course materials printed on white paper, read and absorb examination papers printed in 8 or 10 point font, undertake assessment, including examination assessment, within the strict universal timeframes set down by M State High School and complete their studies without any assistance from learning support teachers.

38. YB contended that he was not able to comply with those terms and that a higher proportion of students at M State High School in the same years of study as YB and who did not have this impairments, were able to comply with the terms. YB further contended that the terms were not reasonable in the circumstances.

39. In his written statement filed on 26 March 2009 (which he confirmed as being correct at the hearing), YB gave evidence that in 2006 Ms F was his learning support teacher and he saw her on about 10 occasions for personal attention during that year.  YB stated that he was required to read material printed in size 8 point or 10 point font, that he was required to ask for extensions for assignments in front of the class, that he could not read the English texts and he was slow in copying from the board in English classes. 

40. As to 2007, in his written statement YB stated that he had been provided with a laptop computer by the school in term 1 of 2007, a promise to load the computer with a program that converted text into spoken word was not fulfilled, the workbook for English contained print that was too small and the enlarged version given to him was poorly reproduced.  He stated that he had to copy a lot of work from the board or from overheads which he could not complete in time, workbooks in other subjects and the maths revision sheets contained print that was too small and there was a delay of 5 to 7 weeks between distribution of workbooks to the class and distribution of the workbook to him with enlarged print.  YB stated that the learning support teacher in 2007 was of no real help to him. 

41. At the hearing, YB gave evidence that across the subjects in 2006 and 2007 workbooks and texts were initially provided in print that was too small for him to read and in 2007 he was provided in some subjects with material in enlarged print but only after a delay of up to 7 weeks. The delays resulted in him falling behind in his subjects as the class would have moved on to other units of study by the time he had access to enlarged print materials. YB stated that he was given extensions to complete work and examinations but the periods of the extensions were not always sufficient to compensate for his problems. YB stated that course materials should have been copied onto coloured paper to reduce the glare that came off white paper but once he had tinted lenses at the end of 2006 there was no longer a need for reproduction of materials onto coloured paper.   

42. YB stated that in 2006 and 2007 he did not have access to the type of learning support that he considered he needed. YB told the Tribunal that he considered that his learning difficulties required one on one support from a trained learning support teacher, in class support from a teacher aide in every lesson and the provision of notes from the classroom teacher. 

43. In her written statement, JB gave evidence that in 2006 YB’s teachers had not been provided with information about his learning difficulties. She confirmed that YB complained to her that he could not read the text in English books due to the size and density of the text.  JB stated that YB lost all learning support in semester 2 of 2006 and he was not provided with enlarged print materials in semester 2 of 2006. 

44. As to 2007, JB stated that YB was provided with a laptop computer towards the end of term 1 of 2007, he was not provided with a program to convert text into spoken word as promised, enlarged materials were provided late and were of poor quality and YB did not have a learning support teacher allocated to him. 

45. At the hearing, JB gave evidence as to her efforts to improve YB’s access to learning support during high school including her advocacy as a parent to persons in authority both within and outside the school.  She had endeavoured to provide YB’s teachers each year with information she had gathered about the learning difficulties she considered impacted on YB’s schooling.  She was critical of the lack of productive response she had received from the school and of the absence of detailed learning support plans in 2006 and 2007 informed by the various medical and educational expert input she had provided.  

46. The respondent denied YB’s contentions and called evidence from members of the teaching staff at M State High School as well as from the principal of the school. 

47. LS, YB’s year 9 English teacher, gave evidence that she provided to YB course materials and assessment task sheets with print enlarged to 14 point font in 2006 in response to the request made by JB at a meeting held between JB and YB’s teachers in about April or May 2006.   

48. DW, YB’s analytical science teacher in 2007, gave evidence that he had attended a meeting early in 2007 between YB’s teachers and the principal when the interventions to assist YB had been discussed. He recalled being told to provide enlarged print course materials to YB.  DW stated that he provided enlarged print course materials on coloured paper to YB as well as materials in the standard size print and had also uploaded course materials onto YB’s laptop computer. 

49. DW stated that there had been a delay of about 2 weeks in supplying the first workbook in enlarged print on coloured paper but the subsequent workbook and other course materials were supplied in an enlarged print format on coloured paper at the same time as the standard size print documents had been provided to the class.  DW stated that YB would rarely bring the enlarged print versions of the course materials to class and that YB only wore his glasses with tinted lenses on about three or four times during 2007.  DW stated that YB had been granted extensions of time to complete his work and had been given special consideration in examinations.    

50. KA, YB’s computer studies teacher in 2007, gave evidence that the principal had met with YB’s teachers in 2007 and had told them about YB’s learning needs including the need to provide YB with materials in enlarged print and on coloured paper.     

51. GT, YB’s English teacher in 2007, gave evidence that she had been told at the start of 2007 to provide course materials in enlarged print on coloured paper to YB.  She stated that she had given YB the first handout for the year on white paper in the standard print size as he had said that he could read it and she had wanted YB to make his own decisions about this issue. 

52. However, in early March 2007 the principal spoke to her about YB and GT had provided all subsequent handouts to YB in enlarged print on coloured paper.  There had been a delay of about 4 weeks in providing the first workbook for that year in enlarged print but subsequent material was supplied to YB in enlarged print format on coloured paper at the same time as the material was provided in standard size print to the class.   

53. GT stated that she gave YB additional time to complete assessment items and he had access to a large print dictionary to assist him as well as other resources on his laptop computer.  She had given him one on one time with one assessment item to ensure that he understood what was required. 

54. GT stated that YB was provided with other special considerations such as presenting an oral item of assessment to her in private rather than presenting the oral in front of the class which the other students had been required to do.  GT stated that YB had read his oral presentation to her from a print out he had made from his computer on white paper with font that did not appear to her to be enlarged.  GT noted that YB had no difficulty reading from the typed pages. 

55. GF, head of the English department, gave evidence that since 2006 meetings have been conducted by the principal with YB’s teachers when they were told to provide course materials in enlarged print to YB.  GF stated that YB had received special consideration for his assessment items in the form of having his assessment tasks sheets in enlarged print and he received additional time to complete examination style assessment items.  GF stated that he had granted all but one of YB’s requests for extensions for assessment items and that from early 2007 YB received extensions automatically on request without the need to explain why he wanted an extension.   

56. PR, deputy principal, gave evidence that the school had not disputed the various diagnoses about YB’s learning difficulties that had been communicated by JB but rather the school had made the accommodations she had requested.  PR stated that he had attended meetings with YB’s teachers and the principal each year to discuss the accommodations to be made for YB and he is available to speak to the teachers at any time about YB.  PR stated that he had spoken to the reprographic teachers aides about the format for YB’s course and assessment materials as a backup to the information provided to YB’s teachers.   

57. PR stated that from about May 2007 he had arranged to meet with YB on a weekly basis to go through his work on a one on one basis but YB had failed to meet with him on about 75% of the time.  PR stated that YB had received special consideration in being given assessment task sheets in the format JB had requested, extended periods of time to complete examination style assessment items, extensions of time to submit other assessment tasks and in being permitted to use spelling and grammatical aides to assist him.  PR stated that learning support had not been withdrawn from YB in semester 2 of 2006 as Ms F and then EJ were YB’s learning support case managers in 2006 and 2007 respectively.   

58. KH, the principal, gave evidence that she met with YB’s teachers in 2006 and 2007 to explain his learning difficulties.  As requested by JB, course materials and assessment materials had been provided in enlarged print and in 2007 in enlarged print on coloured paper.  She had authorised the provision of a laptop computer to YB by the school so course materials could be loaded onto the computer.  She had assigned a learning support case manager for YB and the school’s learning support staff conducted the MATES program to assist students such as YB with support in their school work.  She arranged for a deputy principal to be available to meet with YB on a weekly basis to provide assistance with his school work.  KH stated that the heads of department had been told to grant YB extensions of time to complete his work and considerations were allowed for YB to do his examinations. 

59. EJ gave evidence that she was YB’s learning support case manager in 2007.  She stated that she had first met YB in 2006 when he had signed up for participation in the MATES program and in which she provided support with school work or assessment items to a small group of students either before or after school.  EJ stated that YB had attended the sessions on only a few occasions and he did not appear to like the group setting, preferring one on one attention.

60. EJ stated that she had prepared a support plan for YB in March 2007.  EJ stated that in the plan she identified the issues which had presented difficulties for YB being spelling difficulties that sometimes lead to reading and comprehension difficulties, a short attention span and a lack of direction with goal setting and work organisation to meet deadlines. EJ had instructed teachers in the support plan to encourage YB to use proofreading strategies, to use spell-checking devices and to submit multiple drafts of assessment items in addition to a number of other strategies to assist YB to overcome his difficulties.    

61. In 2007 EJ stated that she was available to meet with YB on a one on one basis for support with his school work on appointment before school, after school or during lunch times.  She had arranged specific meetings which he did not always attend and on some of the occasions he attended meetings with her, YB had not brought along his study diary, his task sheets or his laptop rendering the meetings less effective for him.

62. EJ stated that at M State High School learning support teachers or teacher aides were allocated to attend classes which had a number of students needing support and were not allocated to individual students in class.  Individual support was available to YB at out of class times but he did not often attend this type of support in the period in question.    

63. The Tribunal considers that the evidence given by each of the witnesses for the respondent was credible and was generally consistent with the documentary evidence relied on by the respondent.  YB had submitted that the respondent’s witnesses had been untruthful and had given tainted evidence as they were concerned to protect their jobs. 

64. The Tribunal did not form the impression that any of the respondent’s witnesses had been untruthful but rather they presented as earnest and thoughtful witnesses who had attempted to give evidence as to their recollections of events that had occurred some years earlier as exactly as possible. They conceded at appropriate times under cross examination that their recollections may not have been perfect but overall the Tribunal found no reason to reject the cogency of the evidence presented by the respondent’s witnesses. 

65. YB’s evidence on many points directly contradicted the evidence from the respondent. YB was at times argumentative and non responsive as a witness but that is not surprising as he was presenting his own case and he appeared to be unaware on many occasions of the difference between the role of a witness when giving evidence to the role undertaken by an advocate making submissions in his own case. 

66. The Tribunal considers that it is appropriate to make allowances for a litigant in person unfamiliar with the hearing procedure and as such the Tribunal did not draw any unfavourable inferences about YB’s credit as a witness when his responses as a witness differed from the evidence of the respondent’s witnesses.  However, the Tribunal accepts that both versions of the evidence as to the issues set out in paragraph 12 of the filed contentions cannot be correct.   

67. In considering which version is more likely to be correct, the Tribunal has examined the background to this complaint.  YB had been a minor when the complaint was made on his behalf to the Anti-Discrimination Commission in 2007.  He was a minor in 2009 when instructions were given to lawyers to prepare the contentions and his witness statement.   His mother, JB, was his agent behind the complaint and she had presented his complaint all the way to the start of the third day of the hearing at which time it was determined by the Tribunal that JB was not appropriate to be YB’s representative and YB, now an adult, took over the presentation of his case for the remaining four days of the hearing. 

68. It was apparent from JB’s actions when acting as agent for YB that she had devoted a great deal of time and emotional effort to this complaint.  She had referred on many occasions at the hearing as to how her role as parent advocate had been thwarted by Education Queensland and as to how she had been banned from communicating her concerns about YB’s learning difficulties to teaching staff at the school.  It was apparent that JB’s interest in the complaint went beyond remedying discrimination against her son and was focussed on gaining some third party affirmation via the Tribunal process that she had been poorly treated by the respondent and its agents.     

69. This position is typified by the efforts of JB at the start of the hearing to amend the outcomes being sought from the complaint to include an independent review of the process used by Education Queensland to deal with complaints and a direction to the principal of M State High School to follow parental advocacy guidelines. The Tribunal had disallowed the proposed amendments to the outcomes being sought and had earlier removed JB as YB’s agent for several reasons including a concern that JB could not differentiate between YB’s interests and her interests as a parental advocate seeking to change aspects of the educational system conducted by the respondent. 

70. The Tribunal formed the impression from the similarity of language used by YB in his evidence to the language used by JB that there had been inculcated by JB into her son over several years an unshakeable belief that he had severe learning difficulties that would prevent him from achieving academically unless high levels of learning support were provided by his high school. That belief had not apparently been assuaged during the hearing by the expert evidence given by Dr O’Callaghan, Professor Shum or Dr Worthington who had all described YB’s learning difficulties in much milder terms.   

71. YB readily explained away in his evidence any criticism of his behaviour or allegations of a lack of effort at school by reliance on the assertions that he had learning difficulties and he had not received learning support at school. He only moved from this fixed belief and reluctantly made concessions about the existence of a range of learning supports after the accumulation of evidence from the respondent became insurmountable. 

72. YB’s evidence as his recollections of events from 2006 and 2007 is not preferred over the evidence of the respondent’s witnesses as the Tribunal finds his evidence is not reliable.  The Tribunal was left with the impression that YB’s evidence has been predicated by a desire to explain his disappointing academic achievements to perceived shortcomings in support from the school and not to a failure to make the best of the opportunities made available to him by the school.  The Tribunal prefers the evidence of the respondent’s witnesses as to the learning support made available to YB whenever that evidence is contradicted by the evidence of YB.

73. Turning now to the issues relied on by YB in paragraph 12 of his contentions, the Tribunal does not find from the evidence that the respondent imposed terms in the provision of educational services at M State High School in 2006 and 2007 that required a student to read and absorb course materials and examination papers printed in 8 or 10 point font on white paper or to undertake assessment of any kind within the strict universal timeframes set down by the school or to complete their studies without any assistance from learning support teachers.

74. The evidence has established to the satisfaction of the Tribunal and the Tribunal finds that the respondent in the course of providing educational services at M State High School in 2006 required YB’s teachers to provide YB with course, assessment and examination materials containing print enlarged to 14 point font and in 2007 updated that requirement to teachers having to provide YB with course, assessment and examination materials in that enlarged print on coloured paper.  On isolated occasions that requirement may not have been followed by YB’s teachers or not followed in a timely manner but the Tribunal is satisfied that this requirement was nevertheless implemented by the principal during the period of the complaint from June 2006 to June 2007.  

75. The evidence has established to the satisfaction of the Tribunal and the Tribunal finds that the respondent in the course of providing educational services at M State High School in 2006 and 2007 required the heads of departments and YB’s teachers to permit him to have extensions of time in which to complete assessment items including examinations beyond the general course timeframes.  The Tribunal is satisfied that this requirement was followed. 

76. The evidence has established to the satisfaction of the Tribunal and the Tribunal finds that no term had been imposed that YB had to complete his studies without assistance from learning support teachers in 2006 and 2007. The Tribunal finds that the respondent had provided YB with assistance from learning support teachers and with additional learning support from the deputy principal.  The available learning support was not always taken up by YB.  In addition the respondent provided other accommodations to YB including a laptop computer and the respondent uploaded course materials to his computer when these supports were not available generally to students without learning difficulties. 

77. In view of these findings of fact made by the Tribunal, it is unnecessary to make any additional findings on the allegations set out in subparagraphs 12(b) to 12(d) of the contentions.  

78. The contentions that the respondent has indirectly discriminated against YB on the basis of his impairment have not been made out.  The complaint is accordingly dismissed. 

79. The respondent has not asked for the Tribunal to make a costs order.  In view of the fact that YB was a minor for all but the hearing stage of the claim and his claim was brought and maintained by his agent, JB, until the start of the hearing, the Tribunal is unlikely to be persuaded that in the interests of justice an award of costs should be made.