The Sydney Morning Herald (SMH) has reported on the settlement of a case between Jordan Niko and De La Salle College in Revesby Heights, NSW (the College). Although the case itself is the subject of a confidential settlement, and therefore not all details have been made public, the details which have been reported raise interesting issues about the duties that schools owe to students with special needs.

First, it is a reminder that the special duty of care schools owe to students obliges schools to meet a high standard of care. Second, it illustrates that schools, as a matter of meeting this duty of care, and as a requirement of their legal obligations, must take specific steps to accommodate students with special needs.

The allegations

Mr Niko, now 18, had learning difficulties and special needs. When he enrolled in year 7, he was behind his cohort in reading, handwriting, spelling, computer skills and maths.

According to the SMH, Mr Niko's mother had warned the school that its 'lack of respect and care' for her son would aggravate his learning difficulties and special needs.

Mr Niko eventually sued for negligence, assault, trespass and breach of contract. His specific allegations were that:

• teachers gave him detention and bin duty;
• he was denied access to the toilet;
• he was falsely accused of violence;
• teachers criticised, mocked and belittled him (including for his haircut);
• he was excluded from classes and exams;
• he was forced to complete group assignments alone;
• his property was confiscated; and
• instructions to him were 'exaggerated'.

He also alleged that his request for a one-on-one tutor was denied, and that the school failed to provide adequate modified tasks, homework and assessments. He also said that he was bullied by other students.

He claimed damages arising from psychological issues, the inability enrol in tertiary education, loss of self-esteem and a stress disorder.

The College denied all allegations. The SMH reports that a confidential settlement was reached in September 2014. School Governance did not have access to the filed court documents however the legal issues raised by the case are discussed further in this article.

The legal duty owed to students

In a previous article written for School Governance by James Field, managing director of CompliSpace, the student duty of care owed by a school to its students is summarised in this way: 'simply put, schools and teachers have a duty to take or exercise ‘reasonable care’ to protect students from risks of harm that are ‘reasonably foreseeable’ whilst they are involved in school activities, or are present for the purposes of a school activity'. The article goes on to further explain this statement.

Where a school is aware that a student has special needs, the duty of care which the school owes to that student requires them to take steps to accommodate their learning needs by providing them with special instruction because of sensory, physical, intellectual or emotional disabilities.

Special needs

In addition to having a common law obligation to exercise a duty of care to special needs students, schools are also subject to obligations under legislation and regulations.  These additional obligations are reflected in the registration requirements of non-government schools.

In NSW, where this suit was brought, the NSW Registered and Accredited Individual Non-government Schools (NSW) Manual (NSW Manual) requires two things.

First, schools are required to have specific pastoral care policies for children with special needs. This includes the requirement to identify and support students with special needs, which may include individual plans for students with a disability, learning support and special assessment arrangements.

Services and resources which might be included in an individual plan might include:

• teacher aides;
• special equipment to improve physical access; and
• occupational therapy or speech pathology services.

Second, a school that administers 'education of a kind' (education for 'children who need special instruction because of sensory, physical, intellectual or emotional disabilities') must develop specific policies and educational plans to meet the needs of those children.

Disability discrimination

The registration requirements set out in the NSW Manual impose obligations on schools which, if properly implemented and followed, will mean that they will also comply with the Disability Discrimination Act 1992 (Cth) (DDA).

Non-compliance with the NSW Manual (and its equivalent in other states and territories) will mean that schools may also be breaching the DDA and its related Disability Standards for Education 2005 (Cth) (Standards).  The Standards clarify the obligations which schools owe to their students under the DDA.

The Standards seek to ensure that students with a disability can access and participate in education on the same basis as other students.

• consult;
• make reasonable adjustments; and
• eliminate harassment and victimisation.

Schools are also required to eliminate discrimination towards special needs students by developing and implementing strategies to prevent harassment and victimisation of people with disability. In this case, harassment means an action taken in relation to people with disability that is reasonably likely to humiliate, offend, intimidate or distress the person.

All schools must comply with their obligations under the DDA, Standards and the relevant disability discrimination legislation of their state or territory.  To help achieve compliance they should have policies in place, such as a:

• special needs policy; and
• disability discrimination policy,

which implement their obligations under the legislation and regulations.

Conclusion

Ultimately, as Mr Niko's case did not proceed to trial, and a confidential settlement was reached, nothing was proven and we will not know for sure all of the details of this case. It is unfortunate that a case such at this ever gets to a point where a student or parents feel aggrieved, and where proceedings are filed.

Being aware of the duties owed to students and mindful of the legal and educational obligations is just one tool a school has to minimise the risk of legal action against it. Although a school cannot guard against every instance of litigation, prudent policy management and risk management will ensure that complaints, concerns and grievances are dealt with before they ever reach lawyers.