The Federal Circuit Court of Australia (Court) has found that a Perth primary school (School) failed to make ‘reasonable adjustments’ for a nine-year-old disabled student (TB) and the School was ordered to pay $8,000 in damages to the student’s family. The Court heard that the father of TB alleged 13 instances of discriminatory treatment of his daughter during her time at the school.

The facts

In Term 4 of 2009, TB commenced pre-primary at the School two days per week and three days a week at a separate education support school that caters specifically to students with a wide variety of medical conditions. Her parents chose to send her to the School part time as her father was employed by the primary school as a music teacher and they believed that it was in TB’s best interests to attend a mainstream school so she could learn from her peers and improve communication skills.

In 2010 TB commenced Year 1 at the School and attended 3 days a week, spending the remaining two at the education support school. TB continued this schedule into Year 2 in 2011. In late 2011 TB had her last day at the School and her enrolment was cancelled in 2012.

TB had multiple disabilities including cerebral palsy, intellectual disability, epilepsy, cognitive speech and motor problems, visual impairment and developmental delay.

The allegations

TB’s father alleged 13 grounds of discrimination against the School, in breach of the Disability Discrimination Act 1992 (Cth) (the Act). These were divided into three categories by the Court.

Exclusion from school or school facilities

It was alleged that the School:

• was reluctant to enrol TB;
• provided inadequate toilet facilities;
• provided an unsuitable classroom for the student;
• separated the student and denied her access to her class;
• excluded the student from specialist lessons; and
• refused to enrol the student in Year 3.

Use of equipment and teacher training

It was alleged that the School failed to:

• provide training for teachers to adequately communicate with TB;
• provide TB with a suitable ‘box chair’ to enable her to sit upright in class;
• consult with TB’s parents on the development of an individual education plan for TB;
• provide sufficient training for education assistants (EAs); and
• provide sufficient training to EAs and teachers on the use of TB’s walker.

Building Compliance

It was alleged that the School:

• had insufficient disability parking bays; and
• non-compliant ramps in the School that were too steep for TB to navigate.

The Court’s decision

The Disability Discrimination Act makes it unlawful for a person to treat, or propose to treat, a person with a disability less favourably than they would treat a someone without a disability in the same circumstances, because of that disability.

The Court found that the School had acted in a discriminatory way towards TB on three grounds.

First, the provision of inadequate bathrooms for the disabled student constituted direct discrimination under the Act. The Court also stated that the allegation raised an important issue in relation to the dignity of TB.

When their daughter started at the School, TB’s parents requested that she be permitted to use the disability toilet in the administration block so as to preserve her dignity and make it easier for her to go to the toilet, however this access was only granted a year later. In the meantime, TB was forced to use the communal junior girls’ toilet that was too small for both her and her EA to fit in, forcing her to use the toilet with the door ajar.

The Court held that these toilet facilities were inadequate to maintain the dignity of a child with disabilities and that TB was treated less favourably than other students, breaching the Act.

Second, the disability parking bays provided by the School were held to be too narrow to allow for the easy transfer of TB in and out of her vehicle. The Court held that the parking bays were not in accordance with requirements and recognised that there was detriment to TB arising from the narrowness of the bays. The Court ordered that all parking bays at the School that provide disabled access be modified to permit the easy transfer of disabled students.

Finally, the Court held that the access ramps provided for disabled students at the School were so steep that TB was not able to use them. The Court also held that for a week in 2011, there was no ramp available for disabled access to her classroom. The Court was satisfied that while the ramps were not in breach of the Disabled (Access to Premises) Standards 2010 (Cth), they were still too steep for TB, and the steepness constituted direct discrimination in breach of the Act.

The Court ordered that the West Australian Department of Education pay $8,000 in damages to the student, in trust for when she turns 18 years-old.

Lessons for schools

While the School in this case was found to not have breached anti-discrimination laws on 10 of the 13 circumstances alleged by TB’s parents, it was found to have been discriminatory in its provision of facilities for disabled students. All schools should ensure that access points for disabled students, whether they are disabled parking bays, drop off zones or turning circles, are adequate for their enrolled students’ needs and compliant with Commonwealth legislation.

The Court’s finding here demonstrates that the individual needs of a student with disability must be recognised and catered for by a school.

The School in this case was compliant with the Disabled (Access to Premises) Standards 2010 that incorporates access and building requirements under the Act, however it was found to have discriminated against TB as the access levels to her classroom and bathrooms were insufficient for her needs. The Standards provide a nationally applicable set of provisions that detail what must be done to provide non-discriminatory access to buildings for people with a disability.

Schools should also be aware of how these Standards apply to their school’s new and existing buildings. The Standards require that all buildings provide dignified, equitable, cost-effective and reasonably achievable access to building, and facilities and services within buildings for all people with a disability.

Disability education under the spotlight

Disability education has been under the spotlight this year as a number of inquiries and reviews have been initiated to investigate how schools are meeting the needs of students with disability, and how this may be improved.

The Disability Standards for Education 2005 (Cth) formulated under the Act are required to be reviewed every five years. As such, the Federal Government has engaged an independent consulting firm to undertake the 2015 review of the Standards, focusing on the effectiveness of the Standards in:

• supporting students with disabilities to access and participate in education on the same basis as other students; and
• raising awareness and eliminating discrimination against people with disability in education.

The Federal Government has also supported a Senate Inquiry into current levels of access and attainment for students with disability in the school system, and the impact on students and families associated with inadequate levels of support. The final report from this Inquiry is due in November 2015.

Earlier this year, we reported that Victorian Education Minister James Merlino had announced a comprehensive review of the Program for Students with Disabilities to investigate how schools can best support students with special needs. The review will investigate how to improve the way the Program supports students with disabilities and the needs of children with a disability in their transition from primary to secondary schooling.

As a result of this government focus on disability education, a change in schools’ obligations is likely to occur in relation to how schools are required to treat and include students with a disability. Schools should be aware of these inquiries and reviews, and also review their current compliance with disability discrimination laws.