AB v Ballarat Christian College

AB v Ballarat Christian College - [2013] VCAT 1790 - VCAT 2013 case summary — Zoe

[5]

JQ has been a student at Ballarat Christian College (the College) since 2010. In 2012, he was in year 6 at the College and turned twelve during the year.
In October 2012, the College made a decision not to allow JQ and some other students in his class to go on a camp. The camp was a one-week excursion travelling by bus to and from Canberra. The College says it based the decision on genuine concerns about JQ's behaviour in the period leading up to the camp including verbal bullying, teasing of other students in and out of class, and failing to comply with teachers' directions.
The College is a small independent school, which has about 370 students in its primary, middle and senior schools. It is a mainstream, not a specialist, school but has a developed Special Needs Program, and has a high proportion of students with identified special needs including but not limited to disabilities.
In 2012 the College had 75 students involved in the special needs program. JQ was one of nine students in his year 6 class identified with special needs by the special needs co-ordinator.
JQ's mother is the applicant in these proceedings, which she brings on his behalf under the Equal Opportunity Act 2010 (Vic) (the 2010 Act). The College is the respondent. The claim alleges direct and indirect discrimination against JQ, failure to make reasonable adjustments and victimisation of the applicant. A complaint of discrimination was made after the school's decision not to allow JQ to attend the camp.
The applicant alleges that JQ has a disability - autism spectrum disorder, diagnosed at the age of nine, and severe pragmatic language disorder, diagnosed at the age of 11, and that his challenging behaviours are a symptom or manifestation of those disorders.
In documents filed by the applicant, JQ's autism spectrum disorder is described as 'Autism Spectrum Disorder (Asperger's Syndrome)'. Asperger's Syndrome, is now recognised to be a disorder on the autism spectrum, at the 'high-functioning' end.
In these proceedings, the College does not admit that JQ has either disorder and has asked the Tribunal to draw adverse inferences from the fact that the applicant did not call either of the diagnosing health professionals to give evidence. It denies in any event that it discriminated against him.

[6]

The applicant in the Particulars of Complaint alleges in summary that:
- JQ has a disability: autism spectrum disorder and severe pragmatic language disorder;
- JQ's disability posed the following impediments to him
  - ➢ Deficit in social and communication skills;
  - ➢ Inability to easily cope with change or overactivity;
  - ➢ Difficulty with comprehension and concentration;
  - ➢ Poor auditory memory skills.
- JQ's disability impeded his ability to be educated during the relevant period (October 2012) without reasonable adjustments;
- Those reasonable adjustments were
  - ➢ A Program Support Group/ Student Support Group (PSG);
  - ➢ An Individual Education Plan (IEP); and
  - ➢ A Positive Behaviour Plan (PBP) either standalone or incorporated into an IEP (the reasonable adjustments).
- The College directly discriminated against JQ by refusing to allow him to attend a school camp (claim under section 8 of the Act);
- Indirectly discriminated against JQ by imposing on him requirements or conditions that were not reasonable - namely requiring him to participate in his education without a PSG, IEP or PBP, alternatively requiring him to participate in his education without engaging in challenging behaviours (claim under section 9 of the Act);
- Discriminated against JQ in his education by limiting his access to a benefit provided by the College, in that it banned him from the school camp, and failed to mitigate the impediments his disabilities posed in the classroom (claim of discrimination in education under section 38(2) of the Act;)
- As an educational authority discriminated against JQ by failing to make reasonable adjustments for him as a person with a disability (claim under section 40 of the Act) and did not comply with the Commonwealth Disability Standards for Education[1]; and
- Victimised the applicant by telling her that if she were to go ahead with a complaint of discrimination, things would get 'ugly' (claim under section 103 of the Act).
The College denies that it discriminated against JQ, directly or indirectly; denies that it failed to make reasonable adjustments; and denies it victimised the applicant.
In summary the College says that:
- It was aware that in 2010 a psychologist diagnosed JQ with autism spectrum disorder, and in May 2012 a speech pathologist diagnosed him with severe pragmatic disorder;
- It admits that autism spectrum disorder and severe pragmatic disorder may each be a disability within the meaning of section 4 of the Act, does not admit that JQ has either disorder for the purposes of these proceedings, says that JQ was not diagnosed with 'severe pragmatic language disorder' and says that the applicant's failure to call as witnesses either of the diagnosing health professionals is significant;
- Any disorder had not impacted on JQ's academic social or behavioural functioning in Years 4 and 5 and he did not require an individual education plan;
- His behaviour in 2012 was not necessarily attributable to any disability. In 2010 and 2011, JQ was well-behaved, well-liked, was a social leader, had good friends, and achieved reasonable academic results across the curriculum.
- In 2013 he is again well-behaved. His academic results have deteriorated but he is also being kept home one day a week.
- It does not admit that the particular behaviour of JQ, for which he was excluded from the camp, was a symptom or manifestation of any disability;
- It attributes JQ's behaviour in 2012 largely to being part of a group within his class that became disruptive and challenging. The behaviour of the group and the disruption to the class was a concern for students, teachers, the Principal and parents and the College took a number of steps and applied a number of strategies to address the behaviour;
- It made reasonable and numerous adjustments for any disability JQ might have, including in responding to and addressing the behaviour of the group including JQ; and
- It was entitled in any event to set reasonable standards of behaviour (exception under section 42 of the Act), and to act on concerns for the safety and well-being of other students (exception under section 86 of the Act) by excluding JQ from the camp.

[9]

I heard this case for five days commencing on 28 August 2013. The applicant did not have legal representation but was represented at the hearing by Ms Phillips, a disability advocate. The applicant left the hearing after giving evidence on the first day and did not return. The College had legal representation, and was represented at the hearing by Counsel, Ms Knowles. Both representatives made written and oral submissions.
In addition, the Tribunal granted leave to intervene to the Victorian Equal Opportunity and Human Rights Commission (the Commission).
The Commission's role is to act as an independent party, exercising its functions under section 155 of the Act which include to promote and advance the objectives of, and act as an advocate for the Act. The Commission made written and oral submissions.
The applicant made witness statements, gave oral evidence and was cross-examined.
The applicant attached to her first witness statement two reports: the first dated 2010, by Ms Sally Rigley a psychologist (the Rigley report), and the second, dated 2012, by Ms Susan Crocker, a speech pathologist (the Crocker report). Neither Ms Rigley nor Ms Crocker gave evidence.
Dr Jacobs and Dr Anderson were called as expert witnesses by the applicant. Dr Diane Jacobs, who is a speech pathologist and psychologist, and Dr Angelika Anderson, who is a behavioural analyst, made witness statements, gave oral evidence and were cross-examined.
For the College the following witnesses made witness statements and were required to attend for cross-examination
- Mr Kerry Hutton, the College Principal;
- Mr Ken Nuridin, the junior school principal and JQ's English teacher in 2011 and 2012;
- Mrs Heather Paxman, the College's special needs co-ordinator in 2012 and a consultant to the College in 2013;
- Mrs van Egmond, JQ's homeroom teacher from May 2011 to the end of 2012 and his teacher in a number of subjects;
- Prof Vicki Anderson, clinical neuropsychologist, called as an expert witness
The following witnesses for the College made witness statements and were not required to attend for cross-examination:
- Ms Kylie Weightman, JQ's LOTE (French) teacher in 2011 and parts of 2012;
- Mr Dale Darby, teacher's aide;
- Mr David Corrin, JQ's in 2010 and until May 2011;
- Ms Norma Higgins, JQ's teacher in 2010; and
- Mr Barry Seebaran, JQ's teacher in 2013.
Both parties had unforeseen difficulties in calling a witness.
Mr Tim Rogers, middle school principal in 2012, made a witness statement and was described by Counsel for the College as the College's main witness. Mr Rogers passed away shortly before the hearing.
Counsel for the College identified parts of Mr Roger's statement that could be and were adopted by other witnesses - Mr Hutton, Mrs Paxman, Mrs van Egmond and Mr Nuridin. Each was available to be cross-examined on the statements adopted.
The applicant had proposed to call expert evidence from a paediatrician who was a current sessional member of the Tribunal in the Human Rights Division. I accepted submissions made by Counsel for the College that there would be issues of the doctor's independence as an expert and/or the risk of apparent bias if the Tribunal were to hear expert evidence from a member of the same Tribunal.
Early on the first hearing day, Counsel for the College also foreshadowed that she would ask the Tribunal to make draw inferences from the fact that the applicant did not propose to call the two health professionals, Ms Rigley and Ms Crocker, who made the diagnoses of autism spectrum disorder and severe pragmatic disorder respectively.
I offered the applicant's representative the opportunity to call further expert and other evidence, including by way of an adjournment. Before her case closed, she advised the Tribunal that her client's instructions were to press on without additional evidence.

[10]

My approach to the evidence is this. In relation to the non-expert witnesses, for the most part I am satisfied that the applicant, and the College's witnesses gave truthful evidence about matters within their knowledge to the best of their ability.
My impression of the applicant as a witness giving oral evidence was that she took care to answer questions truthfully, was willing to make concessions about matters not helpful to her case, and gave responsive answers to the questions asked in cross-examination.
Through her oral evidence, she gave the strong impression of a thoughtful and resilient mother concerned to do her best for her son in challenging family circumstances, and a determined advocate for her son - as she is entitled to be.
My impression of the College's witnesses who were required to attend for cross-examination was that they were intelligent and thoughtful teaching professionals, concerned to do their best for the students in their care, including JQ.
Mrs Paxman, the special needs coordinator, particularly impressed me as a professional who by training, experience and temperament appeared well-suited to the role she had at the College in 2012 and who approached the issues to do with JQ, and the communications she had with the applicant and with JQ's teachers, with care and expertise.
Mrs van Egmond, who was JQ's homeroom teacher, impressed me as a committed and caring young teacher, willing to learn about her student, flexible in her approach to him to the extent her role as teacher to the whole class allowed, and prepared to try recommended strategies and make a series of adjustments for JQ.
I accepted Mr Hutton's uncontested evidence that before he arrived at the school in 2006, it had little provision for students with special needs or learning difficulties, and that he established a Special Needs section in 2007 which has since grown under his direction well beyond that provided for by Government funding.
I formed the impression of a principal committed to educational equity, who is prepared to commit a large part of the school's financial resources to programs and provision for students with special needs, and who is proud of the reputation the school has for its Special Needs program.
I accepted the uncontested evidence of the College's witnesses who were not required to attend for cross-examination, to the extent that they expressed their own observations of JQ's behaviour in their classes or activities in the relevant years. Those witnesses are:
- Kylie Weightman;
- Dale Darby;
- David Corrin;
- Norma Higgins; and
- Barry Seebaran
I gave weight in particular to the evidence of Mr Barry Seebaran, who is JQ's homeroom teacher in 2013 and whose evidence forms a useful comparison between JQ's behaviour and engagement in 2012 and his behaviour and engagement this year
In the particular circumstances, I gave less weight to Mr Roger's witness statement because he could not for obvious reasons be cross-examined on its contents, except to the extent the statements he made were able to be adopted by other witnesses.

[11]

In relation to the expert witnesses, I make the following observations and findings.
I accepted the expertise of the applicant's witnesses, Dr Diane Jacobs and Dr Angelika Anderson in their respective fields - psychology/speech pathology and behavioural analysis respectively. Their evidence was largely of limited assistance however for the following reasons.
Each was given letters of instruction that were limited and potentially misleading, in my view. The documents provided were limited to the VCAT Practice Note and the Particulars of Complaint.
The instructions stated that JQ has 'Autism Spectrum Disorder (Asperger's Syndrome) and a Severe Pragmatic Language Disorder,' without providing the diagnostic reports. The instructions also stated that paragraph 7 of the Particulars of Complaint set out a summary of the medical assessments relating to the diagnoses.
The problem with describing paragraph 7 of the Particulars of Complaint in this way is it does not, in fact, set out the medical assessments.
Paragraph 7 is a mix of the applicant's own observations of JQ to the diagnosing psychologist recorded in that report, general statements made by the diagnosing professionals about children with each of the disorders, and recommendations, only some of which appear from the reports to be specific to JQ's identified needs. This would not have been obvious to either witness in the absence of the diagnostic reports themselves. Neither had met with JQ or his mother.
Dr Angelika Anderson, who is an applied behaviour analyst and Board[3] Certified Behaviour Analyst, and Senior Lecturer in Education, did not receive a copy of the diagnostic reports. Her report provided useful general information on positive behaviour principles and assessment, and I accept part of her opinion, with which Mrs Paxman agreed, that certain behaviours, whether or not they result from disability can be addressed and their future occurrence reduced by the application of positive behavioural principles.
Dr Anderson's opinions on what was appropriate or necessary for JQ were expressed in the absence of the diagnostic reports and without being given any of the documents recording observed behaviour of JQ in 2012.
To the extent that Dr Anderson was asked to and expressed an opinion on what were reasonable adjustments for JQ, that is a matter for the Tribunal to determine, taking into account the factors in section 40(3) and the evidence in this case.
Dr Jacobs only received a copy of the diagnostic reports after making her initial report, in which she acknowledges not having received a report outlining JQ's specific behavioural difficulties. Her first report also related principally to a severe language impairment that JQ has not been diagnosed with, and other co-morbidity factors not the subject of any evidence in this case. Most of it was inadmissible for that reason.
Quite properly, Dr Jacobs asked for and received additional information before making her second witness statement and it has more weight than the first as a result. . I accept her expertise as a speech pathologist commenting on the Crocker report and explaining the various language impairments referred to in this case. To the extent that she has been asked to and expressed an opinion on what were reasonable adjustments for JQ, that is a matter for the Tribunal.
Overall, I regarded Professor Vicki Anderson, called by the College, as having the greater expertise, experience and standing as an expert psychologist. In additional to academic roles at the University of Melbourne and the Murdoch Childrens Institute, Professor Anderson is Professor/Director, Psychology and Deputy Director Mental Health Service at the Royal Children's Hospital. While she has a strong research background in brain trauma and other areas, she has also had a clinical role at the Royal Children's Hospital for 30 years seeing children with ADHD, autism spectrum disorder, epilepsy and language difficulties.
Like Dr Jacobs and Dr Anderson, Professor Anderson did not see JQ. Unlike Dr Jacobs and Dr Anderson, Professor Anderson received an appropriate and comprehensive bundle of documents with her instructions. She received the diagnostic reports, JQ's school reports for 2010, 2011, 2012 and 2013, letters to parents from the Principal, and the incident logs and behavioural monitoring booklets recording JQ's observed behaviour (by teachers) in 2012.
As a result, Professor Anderson was able to make better-informed observations about the nature and patterns of JQ's behaviours; and to evaluate the diagnostic information by comparison with school reports.
Importantly, Professor Anderson was better able to address the central question in this case: were JQ's recorded behaviours in 2012 attributable to disability.

[12]

The Commission's written submissions dated 15 August 2013 provided a helpful analysis of the operation of the Act, and how it differs from its predecessor, the 1995 Act. I have adopted those submissions in their description of the legal framework in this case, but not in relation to those parts of the submissions that assumed that the Particulars of Complaint were proven.
The 2010 Act prohibits discrimination in certain areas of activity against people who have, or are presumed to have, specified attributes. Disability is one of the protected attributes[4]. Education is one of the areas of activity.[5]
The 2010 Act prohibits direct discrimination - treating or proposing to treat a person with an attribute unfavourably because of that attribute[6].
The 2010 Act also prohibits indirect discrimination. - imposing or proposing to impose a requirement, condition or practice:
- (a) that has, or is likely to have , the effect of disadvantaging a person with an attribute; and
- (b) that is not reasonable.[7]
The 2010 Act sets out some general exceptions and exemptions from the prohibition against discrimination.
One of those exceptions is section 86 (1), which allows a person to discriminate against another person on the basis of disability or physical features if the discrimination is reasonably necessary to protect the health or safety or property of any person.
Part 4, Division 3 of the 2010 Act contains specified prohibitions in relation to education, and some exceptions.
An educational authority must not discriminate against a person in relation to admission, or the terms of admission, of a person as a student.[8]
Under section 38(2) an educational authority must not discriminate against a student:
- (a) by denying or limiting access to any benefit provided by the authority;
- (b) by expelling the student; or
- (c) by subjecting the student to any other detriment.
Section 40 of the 2010 Act is an explicit requirement relating to the attribute of disability. It provides that an educational authority must make reasonable adjustments for a person with a disability, unless the person could not participate in or continue to participate in or derive or continue to derive any substantial benefit from an educational program even after the adjustments are made.
Section 40 is a standalone provision. Under section 7(1)(b), a contravention of section 40 is discrimination.[9]
In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered including the nature of the disability, the nature of the adjustment required to accommodate the disability, and the effect on the person, the educational authority, staff, other students or any other person. Importantly, an educational authority is not required to make an adjustment to the extent that it has complied with a relevant disability standard under the Commonwealth Disability Discrimination Act 1992.(the Commonwealth Act)[10]
There are some exceptions in Part 4, Division 3. Section 42 provides that an educational authority may set reasonable standards of dress, appearance and behaviour for students.
A person must not victimize another person (section 103),
Under section 104(1):

[26]

There are issues in relation to the approach taken to diagnosis and the usefulness of the report's content in these proceedings.
The consensus of Dr Jacobs and Professor Anderson is that WISC-IV is an intelligence test, not a test for autism. It is administered as part of the assessment but is purely a test of intellectual functioning. Dr Jacobs and Professor Anderson disagreed about what else is required.
Dr Jacobs gave evidence that having viewed the report she found no inconsistencies in it. Dr Jacobs said that it is appropriate to use WISC-IV in conjunction with the diagnostic criteria in the DSM- IV -TR (Diagnostic and Statistical Manual of Psychiatric Disorders, fourth edition, text revision), which was current at the time. It appeared to Dr Jacobs that the Ms Rigley had the DSM IV in mind.
Professor Anderson's opinion was that the assessment was based on inadequate information and said:
- a diagnosis of autism cannot be made on the basis of WISC-IV;
- the 'gold standard' test for autism is the ADOS test (autism diagnostic observation schedule). The ADOS test has been used for a number of years, and she would not permit the psychologists working with her to make a diagnosis of autism without it
- there are other tests that can be used to complement the ADOS test, such as behavioural assessments and questionnaires, which can be used as screening;
- the report relied too heavily on the parent interview and lacked objective analysis, such as a standardised questionnaire that compared JQ with boys of his age.
In Professor Anderson's view there was insufficient quantitative information to make a diagnosis of autism.
The applicant's representative submitted that the Tribunal should place little weight on Professor Anderson's opinion in relation to a number of issues in the case. In relation to her opinion about the diagnosis, the submissions were in summary as follows.
- Professor Anderson is not an expert in autism.
- Her research area is principally acquired brain injury.
- If she believed that ADOS is the gold standard she should have said so in her witness statement.
- If Professor Anderson believed that the diagnosis was mistaken she should have said so in her witness statement as a 'matter of significance' (a reference to the VCAT expert witness guidelines).
As indicated above, I am satisfied that Professor Anderson has expertise across the areas of her clinical work including autism.
I am satisfied her role and her clinical experience at the Royal Children's Hospital and elsewhere provide a strong basis for her to express the opinion she has expressed and I accept her opinion about the adequacy of the report.
All the expert witnesses gave additional evidence in chief with the leave of the Tribunal. Professor Anderson expressed her opinion that the diagnosis was incorrect in answer to a direct question asked in cross-examination by the applicant's representative. She said that she thought that was implicit in her report. Her answers to the questions she was asked are part of the evidence.
In any event, I note that the applicant's evidence included the Australian Government Funding Guidelines for Students with a Disability. The required assessments for autism are structured autism assessments. ADOS is one of them. A Vineland Adaptive Behaviour Scale assessment is also required in relation to adaptive behaviour. The Rigley report did not contain evidence that either a structured autism assessment or an adaptive behaviour assessment using the Vineland Adaptive Behaviour Scale had been done.
Apart from problems of approach, there are deficiencies of content in the Rigley report, which limit its usefulness in these proceedings. On its face, it raises a number of questions that it does not answer. It leaves gaps which might have been filled had Ms Rigley given evidence in this case. She has continued to see JQ since the 2010 assessment, has provided other reports not in evidence, and her observations might have been helpful.
As the report states, consistently with other evidence, autism spectrum disorders are typified by impairments in the areas of social interaction, communication and imagination (as evidenced by restrictions in interests or repetitive patterns of behaviour or play).
While the author expresses the opinion that JQ falls within the autism spectrum, she does not say where in the spectrum he falls. That information would have been relevant to a number of issues in this case including determining what might be a reasonable adjustment for JQ, which requires consideration of the nature of any disability.
No opinion is given as to the degree of any impairment in the areas of social interaction, communication and imagination. General information is given about people on the autism spectrum and the difficulties they have but little is said based on direct observation or assessment of JQ. In this case the degree of any impairment is directly relevant to a number of issues.
The author states the opinion that JQ's pragmatic language difficulties may cause him to behave inappropriately in some situations. This statement, of itself, is of little assistance in determining whether the behaviour that led to JQ being excluded from the camp is a manifestation of JQ's autism spectrum disorder.
Further, the assessment was made in February 2010. The information provided in the report and the assessment made appear inconsistent with other evidence in these proceedings.
The Tribunal had evidence from a number of JQ's teachers. Their evidence related to 2010 through to 2013. The Tribunal also had JQ's 2011, 2012 and 2013 (Semester One) reports.
His teachers' observations of JQ in 2010 and 2011 appear inconsistent with a child who had any significant impairment in social interaction and communication. Those observations include that he was popular, had a lot of friends, and had good to excellent behaviour.
The following evidence was given by witnesses not required to attend for cross-examination:
- In my time teaching at Ballarat Christian College I have had a lot of exposure to children with diagnoses of ADHD and autism spectrum disorder....In that year [2010] I found JQ to be a pretty typical student. His level of academic performance was in the range expected and his behaviour was not difficult. He was generally a quiet, compliant boy and I found him to be pleasant and helpful....The diagnosis of ASD was surprising to me given his academic performance and behaviour in 2010.' (Norma Higgins, 2010 teacher)
- 'I did not find his behaviour really any different from the other boisterous male students in the class. I never felt I needed support with [JQ] (Kylie Weightman 2010 and 2011 French teacher);
- 'Overall [JQ] interacted well in the group and was popular with the other boys. He seemed to really enjoy and benefit from the group...I felt he was a 'good kid' and he had a huge group of friends' (Dale Darby Teacher's aide re 2011 boys group);
- 'In terms of behaviour I found no real issues. He mixed with other students and had a number of friends JQ's behaviour was manageable and was like many other kids (David Corrin 2011 teacher);
The above examples are not exhaustive. They are not the evidence of specialists in autism but they are more than the 'feelings' of non-experts (as submitted by the applicant). They are the observations of teachers who witnessed JQ behaviour and social interaction. They were not cross-examined. I give weight to their observations.
The evidence of JQ's behaviour in 2012 came from teachers who observed him. What they observed was not contested. Whether or not JQ's behaviour in 2012 was volitional - the opinion of a number of teachers - was contested by the applicant.
Barry Seebaran is JQ's homeroom teacher in 2013. He made a witness statement and was not required to attend for cross-examination. He stated that JQ is pleasant in class and does not stand out as highly disruptive or misbehaving and, it appears, has improved since 2012. Mr Seebaran said that JQ responds well to one to one discussions and explanations of inappropriate behaviour, is engaged in class, respectful of instructions and puts up his hand. I give weight to his observations of JQ's behaviour and engagement in class in 2013.
I considered other evidence before me.
I heard evidence about JQ from his mother, which has weight in relation to her knowledge and experience of him in a home environment and her understanding of his needs. In her interview with Ms Rigley, recorded in 2010, the applicant described a child who in her experience had high-levels of anxiety, difficulty in 'reading' people, lacked tact, had melt-downs, needed routine, time out, clear instructions and visual cues.
In her oral evidence, the applicant described the steps she takes to provide a good home environment for JQ including lots of visual cues, routine, time out and awareness of when the demands of the school day have exhausted him. The applicant gave evidence that two of her other children have been diagnosed with autism spectrum disorder, and that Ms Rigley has diagnosed the applicant with the disorder.
The applicant gave evidence that JQ has been prescribed the medicine Concerta for a number of years. There was evidence that it affects behaviour but no evidence of why it was prescribed. The applicant did not call JQ's treating paediatrician, who is a different medical practitioner to the one proposed as an expert.
I note that the applicant's description of JQ was consistent in a number of respects with the information Mrs Paxman provided to JQ's teachers about JQ and about Aspergers.
I also note that Mrs Paxman included the diagnosis of autism spectrum disorder on JQ's student profile. His overview profile had the following:

[28]

Mrs Paxman has qualifications in special education and considerable experience in working with children and adults with autism. She is not an expert psychologist, or called as an expert witness but I gave weight to the fact that she accepted the diagnosis for the purposes of the information she gave to JQ's teachers, and provided them with targeted information about autism and Aspergers. I note also that she said that a teaching approach that incorporates the needs of children with autism spectrum disorder can be a good teaching approach for all students.
On reviewing the evidence, I consider that it is quite possible that JQ falls somewhere on the autism spectrum, probably at the 'high functioning' end of the spectrum, and has some degree (undefined) of impairment in the areas of social interaction and communication. But I am not an expert and this is not an area where the Tribunal should be required to form its own opinion.
I accept the opinion of Professor Anderson that the Rigley report is not a reliable diagnosis of autism spectrum disorder for the purposes of these proceedings. In other words I am not satisfied that the Rigley report establishes on the balance of probabilities that JQ had autism spectrum disorder at the time of diagnosis in 2010 and does not provide reliable evidence of autism spectrum disorder in 2012. More importantly for the purposes of the issues in this case, it provides little information about the detail of JQ's impairment its degree.
I have reached the above findings without drawing adverse inferences under Jones v Dunkel. The parties' submissions on that issue are set out in a following section. As I note in that part of the reasons, the real significance of the applicant's unexplained failure to call Ms Rigley and Ms Crocker is that their reports have less weight as a result, any deficiencies in content have not ameliorated by additional evidence from Ms Rigley and Ms Crocker. Their absence has made it more difficult for her to prove her case.
I am not in any event satisfied that the applicant has proven her claim that the College has discriminated against JQ on the basis of behaviours that are a symptom or manifestation of any disability.

[31]

The Rigley report provides no information about the degree of any impairment, and is of little assistance in determining whether particular behaviours of JQ were a symptom or manifestation of the disorder diagnosed.
The applicant's representative asked that I infer that all people meeting the diagnostic criteria of the DSM-IV definition of autism spectrum disorder, while being individuals, meet the same criteria and therefore have similar attributes. With respect to the submission, such an inference is not available in relation to individual behaviour, and is unhelpful in any event. It ignores the evidence that within the autism spectrum there will be a wide range of intellectual and social functioning and abilities
The evidence before me was that the following were some of the behaviours exhibited by JQ in 2012 that were of concern to the College:
- Insolence to the teacher;
- Being argumentative;
- Calling out silly comments;
- Teasing other students inside and outside class;
- Taunting and bullying behaviour;
- Failing to comply with directions of the teacher.
- Disrupting and distracting behaviour;
- Uncooperative and noisy
Mr Seebaran, in his witness statement, stated that in 2013, JQ is pleasant in class, does not stand out as highly misbehaving, responds well to one-to-one discussions and explanations of inappropriate behaviour, and is engaged and respectful of instructions.
Professor Anderson was asked whether the behaviours exhibited by JQ and referred to in the incident log and behaviour monitoring booklets were attributable to disability. She considered those documents and JQ's school reports for 2010, 2011, and 2012.
In her opinion, the pattern of escalating behaviour problems in 2012 was not simply attributable to a developmental disability.
Professor Anderson notes that autism spectrum disorder and pragmatic language disorder are developmental disorders and thus, by definition present from early life. For each of these diagnoses it would be expected that symptoms would be evident throughout primary school, but this did not appear to be the case. Rather, reports suggest that in JQ's case these symptoms emerged in 2012.
Before that time the school reports suggest that JQ's behaviour was 'good', that he was 'popular with friends', had a 'good attitude towards school', 'listened well', 'worked independently', 'made productive use of class time', 'a leader in the class', and so on.
Professor Anderson said that if she were presented with this history in her clinical role one of her differential hypotheses would be that there were other factors in JQ's environment in 2012 which might explain escalation of behaviour problems, for example, family disruption, trauma, loss, bullying, difficult group dynamics or transition into adolescence.
There is little in the 2010 Rigley report that assists in determining whether JQ's behaviours in 2012 were a symptom or a manifestation of any disability JQ might have. The following comments in her report relate to behaviour and are specific to JQ:
- His pragmatic language difficulties may cause him to behave inappropriately;
- Beginning with achievable goals will encourage his belief that he is able to control his behaviour and reach his set goals;
- Check that you are not reacting more to acting out behaviour than to adaptive cooperative behaviour. If so, you may be encouraging unacceptable behaviour in JQ.
The following general, behaviour related comments are made;
- [Children with an autism spectrum disorder] are also prone to depression and have temper outbursts
There is little in Ms Crocker's report that assists on this issue, and a number of unanswered questions, such as how her conclusion about JQ's language impairment might translate into inappropriate behaviour, and whether it provides any explanation for the particular behaviours that the school responded to in deciding not to allow JQ to attend the school camp.
In my view, the evidence was unclear as to whether all of the behaviours that caused the school concern and to which it responded were symptoms or manifestations of autism spectrum disorder, and there was insufficient evidence to conclude that they were symptoms or manifestation of severe pragmatic disorder.
What is in evidence is that by the start of the school year in 2013, all of those behaviours in the school context resolved without any of the adjustments the applicant contends were required to mitigate JQ's behaviours.
Other circumstances have changed in 2013: the group JQ was a part of has been split up, some of the members of the group have left the school, JQ is now in his second year of middle school and is a year older, JQ's mother and step-father have now separated, JQ is now staying home one day a week.
There are a number of possibilities to account for JQ's very different behaviour in 2012 to the preceding two years and to this year, other than disability.

[33]

Counsel for the College submitted that the Tribunal should draw an adverse inference from the applicant's failure to call the authors of the Rigley and Crocker reports.
In closing submissions the applicant's representative made a contrary submission - that adverse inferences should be drawn against the College for not calling the authors of the report.
The College submits that the Tribunal may infer the following from the fact that the applicant failed to call the author of the Rigley report, despite being on notice that a Jones v Dunkel application would be made:
- That the author no longer adopts the contents in whole or in part and/or has a different view;
- Further tests have been carried out that would not assist the applicant's case;
- Observations have been made that differ from those in the report;
- That JQ now has symptoms different from and less severe than recorded in the report; and
- The recommendations no longer apply in whole or in part.
The College made similar submissions in relation to the second report (the Crocker report).
The applicant's representative submitted that it was the College's responsibility to call the authors of both reports and that an inference should be drawn that their evidence would not have assisted the College. The following was said to be the basis:
- Under section 9 of the 2010 Act, the onus of proving that the requirement or condition is reasonable is on the College;
- The College's defence either denies or does not admit the paragraphs of the Complaint relating to section 9 of the Act;
- The College's defence relies on 'the overall defence that JQ does not have disabilities', 'the overall defence that JQ's behaviour is not attributable to any disability'; and his behaviours and difficulties did not present as being sufficiently severe to need the formal interventions alleged to be required; and
- The College had responsibility to adduce evidence in relation to the disability, whether the behaviours were symptoms or manifestations, and whether its strategies were effective to address those behaviours.
I have declined to drawn adverse inferences against either party for the reasons that follow.
The rule in Jones v Dunkel has been explained in the judgment of Newton and Norris JJ in O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 at 929:

[40]

Section 40 of the 2010 Act is an explicit requirement relating to the attribute of disability. It provides that an educational authority must make reasonable adjustments for a person with a disability, unless the person could not participate in or continue to participate in or derive or continue to derive any substantial benefit from an educational program even after the adjustments are made.
Section 40(3) of the Act provides guidance in determining whether an adjustment is reasonable.
In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered including:
- The person's circumstances, including the nature of his or her disability;
- The nature of the adjustment required to accommodate the person's disability;
- The effect on the person of making the adjustment and the consequences for not making the adjustment;
- The effect on the school, staff, other students or any other person, including the financial impact of making the adjustment and the number of people who would benefit from or be disadvantaged by making the adjustment.
Section 40 undoubtedly requires a school to consider how funds and other resources might be used to make adjustments that will increase and improve participation by a student with a disability in education, and consider whether reasonable adjustments can facilitate the student's participation in an educational program, and/or derive a substantial benefit from it.
Examples given in section 40 include providing a teacher's aide or particular software packages for computers; moving a course or event from an inaccessible venue to an accessible one.
The requirement to make _reasonabl_e adjustments and the factors included in section 40(3), make it clear that section 40 is not a requirement to create a perfect environment for every student with a disability regardless of the nature and extent of the disability, and regardless of the funding or teacher time required.
Financial impact on the school, and the impact on staff and other students are relevant factors to take into account in determining whether an adjustment is reasonable. This signals, in my view, that it is not assumed that a school will have unlimited funds and staff resources.
By including those factors, section 40 makes it clear, in my view, that a school is not required to use all available funds and all available teacher time in order to make adjustments for one student. Nor is it required to do so to the detriment of the needs of other students, and the ability of teachers to use their time, expertise and energy towards the education of all the students in their class.
Including the effect on the person of making the adjustment as a factor also makes it clear, in my view, that need and effectiveness are relevant considerations.
In this case, the issue of reasonableness - the balancing of the relevant factors - was critical.
Even if I were satisfied that JQ has a disability in the terms alleged, any disability had not prevented JQ from managing the social, behavioural and academic environment of a mainstream school in 2010 and 2011. The evidence that at school he was friendly, well-behaved, popular and passed subjects across the curriculum was uncontested.
It was not in dispute JQ does not meet the criteria of autism spectrum disorder and severe language disorder required to be met for Government funding.
Although the College is a mainstream school, it already allocates a relatively high proportion of its funds to meeting the special needs of students, including students with a disability, whether or not they are Government funded. Necessarily it gives priority to students with higher support needs.
The applicant's case is that because JQ had a disability, he required a PSG, and IEP and a PBP. The applicant's representative contends that those measures are required whenever a student has a disability.
From the evidence of what these measures involve, it is clear that they are time and resource intensive. Mr Hutton expressed the view, which I accept to be based on personal knowledge and experience, that if the school had to provide those measures regardless of need, it would go under. It provides those measures according to need.
The Disability Standards for Education are relevant in this context. They are expressly referred to in section 40(3) of the 2010 Act. They include a helpful discussion of reasonable adjustments and contain the important statement, at 3.4, that:

[45]

The above note to the Disability Standards makes it clear that there will be circumstances in which adjustments are not required for a student with a disability, contrary to the submissions that they are required whenever a student has a disability.
The submissions made by the applicant's representative did not address the balancing factors in section 40(3) and the requirement to balance the interests of all affected in the Disability Standards.
The Disability Standards do not state that a PSG, and IEP and a PBP are required adjustments for all students with a disability: the Standards make no mention of those specific measures.
The Standards require the education provider to consult with the student, or an associate of the student before making an adjustment, (3.5) but do not specify any formal process for doing so.
While the Disability Standards require a school to consult with a student about a proposed adjustment, consultation itself is not specified to be an adjustment.
The applicant relied upon a number of documents to contend that a PSG, and IEP and a PBP are required adjustments including.
- The Independent Schools Victoria Handbook for Students with Disabilities, which strongly recommends that a PSG be established for any student who requires ongoing monitoring and support including a student with a disability.
- The Royal Children's Hospital Education Institute publication: 'Including students with disabilities: a curriculum toolkit for schools and teachers.'
- Department of Education and Early Childhood Development Student Support Group Guidelines, which sets out the aims, responsibilities and membership guidelines for Student Support Groups.
The documents relied upon do not have the status or effect contended for, in my view. They are important and useful resources for schools. They will assist a school in planning for the needs of students with disabilities, and they provide guidance in that process, but they do not have legal status in the context of the 2010 Act. Neither the 2010 Act nor the Disability Standards explicitly require that a school comply with them in order to comply with the Act and the Standards.
Even if the claim in relation to disability and its symptoms or manifestations had been established, in all the circumstances, and balancing all the factors referred to in section 40(3), my view is that a PSG, an IEP and a PBP were not, as contended, reasonable adjustments under 40 of the 2010 Act.
I have not had to decide whether they are 'adjustments' within the meaning of section 40, or within the meaning of the Disability Standards.
To the extent that the applicant's case is that those measures were required to mitigate JQ's behaviours, it is relevant that JQ's behaviour improved in 2013, without a formal PSG, IEP, or PBP in place.
I note that the steps taken by the College included the following:
- Before the start of Year 6, Mrs Paxman provided JQ's class teachers with overview student profiles for the students in that class with identified special needs, as part of an information pack. JQ's profile noted the diagnosis of autism spectrum disorder and gave a summary description of what it means in terms of impairments and strategies. I was satisfied Mrs van Egmond paid attention to and implemented those strategies;
- The information pack contained a list of basic classroom strategies for teachers with autistic students (1 page) and strategies for students with Aspergers (five pages);
- Mrs Paxman met with the applicant in February 2012 and discussed adjustments to JQ's homework schedule; including the applicant's request to remove JQ from LOTE French and use the time to complete homework tasks. These steps were implemented and the College took steps to provide a supervised location for JQ to work in with access to an aide as required;
- At the meeting in February 2012 with the applicant, Mrs Paxman reviewed the need for an IEP but as JQ was passing all his subjects felt an IEP was not warranted;
- Over the course of 2012 the College facilitated meetings between the applicant, Mrs Paxman, Mr Rogers and JQ's teachers to discuss strategies to respond to his behaviour. The applicant did not attend an important meeting on 26 June 2012, and an arranged meeting prior to the camp;
- The College took a number of steps to consult with the applicant including meetings, letters and emails, and a strong request in JQ's mid - semester two report for the applicant to attend parent teacher interviews, described as 'essential' in a majority of subjects. The applicant did not respond to that request;
- Adjustments to respond to issues in the class, including JQ and other's behaviour, included more teacher aide time in the classroom, reviewing and changing the structure and environment of the classroom, seeking advice from a behavioural specialist, implementing a traffic light system; communication with parents;
- Mrs van Egmond implemented strategies in her teaching of JQ based on recommendations in Ms Crocker's report, received in May 2012, and endeavoured to participate in a privately arranged social skills program organized by the applicant with Ms Crocker;
- The College provided JQ with access to computers and to the Reading Eggs program as time out during class;
- The College included JQ in a social skills group during class time to enhance social skills and provide a break from class;
- The College implemented a behavioural management booklet system for JQ and others which identified common behavioural goals and involved teachers completing a record of behaviour and academic work for each period;
- In term 3, Mrs Paxman made a successful application for the Independent Schools Victoria - Mansfield Autism Statewide Services in school program which is in operation this year. The program offers assistance, staff training and support for staff and families. JQ has been included in this program;
On the whole of the evidence, I was satisfied that the College made a number of adjustments for JQ and took a number of steps in response to the information it received about JQ. I am in any event satisfied it is not in breach of section 40 as alleged.

[47]

My findings in relation to what are reasonable adjustments are also relevant to the claim that the College indirectly discriminated against JQ under section 9 of the 2010 Act.
Section 9 of the 2010 Act prohibits indirect discrimination. - imposing or proposing to impose a requirement, condition or practice:
- (a) that has, or is likely to have , the effect of disadvantaging a person with an attribute; and
- (b) that is not reasonable.
The applicant's claim is that JQ was required to comply with an unreasonable requirement that disadvantaged him, namely that he fully participate in his education without a PSG, IEP and PBP.
In the alternative, the applicant claims that the College imposed an unreasonable requirement that JQ participate in his education without engaging in challenging behaviours.
The particulars of this part of the Complaint had some difficulties of precision and in some respects were circuitous.
Essentially the claim is that:
- the College failed to provide the required supports,
- this meant that JQ could not attend the College without engaging in challenging behaviours,
- the College failed to address the attributes of JQ's disability through the reasonable adjustments required which meant that JQ's disability manifested in ongoing challenging behaviours,
- the College's failure to mitigate the effects of his disability disadvantaged him and was not reasonable.
It is the case that the College did not provide a formal PSP, an IEP or a PBP to JQ in 2012. To the extent that it can be said to have required him to participate in his education without those measures, any such requirement is not unreasonable in all the circumstances.
As for the alleged requirement that JQ participate in his education without engaging in challenging behaviours, apart from problems of precision, I am not satisfied that the College imposed that requirement on JQ.
The College took a number of steps to address JQ's behaviour, and the behaviour of the others in his class. His school reports in 2012 record a range of behaviour that could be described as challenging. The College did not at any point refuse to allow him to participate in his education.

[57]

The applicant claims that the College victimised her, as a person making or intending to make a complaint of discrimination on behalf of her son, in breach of section 103 of the 2010 Act.
Under section 104(1) of the 2010 Act, victimisation occurs if a person subjects or threatens to subject another person to any detriment for a range of prohibited reasons.
The prohibited reasons include: because the other person has brought a dispute to the Commission; brought proceedings; made an allegation of discrimination; or because the person believes that the other person has done or intends to do any of those things.
The claim is based on the following evidence.
The applicant stated that in late 2012, shortly after she asked Ms Phillips to write to Mr Hutton, she struck up a conversation with Mr Hutton while collecting JQ from school. Mr Hutton told her that if she were to go ahead with a formal complaint of discrimination things would get 'ugly'. She was concerned, regarded it as a threat, did not know what it meant, and hoped that JQ would not suffer due to her lodging a complaint.
Mr Hutton said that he could not recall saying those words but could have. He said it was a chance encounter and he had said words to the effect of 'let's resolve this', 'before it gets difficult'. He said his words were not said as a threat, they were said in the context of asking the applicant to meet with him to try to resolve the dispute.
On the weight of the evidence, I accept that Mr Hutton used the words attributed to him - that things could get 'ugly'. I also accept that Mr Hutton said them in the context of suggesting that the College and the applicant try to resolve the complaint. I accept that his intention was not to threaten or frighten the applicant, but also accept that she was concerned and worried by his statement.
There is no evidence that any specific threat of detriment to JQ was made, nor was there any evidence that JQ suffered any detriment as a result of the applicant lodging the complaint. On the contrary, the College has continued to take a number of steps to assist JQ and the applicant. It continues to discount JQ's fees on account of the family's financial hardship. It has included JQ in a special program for which Mrs Paxman sought funding in late 2012. It has accommodated the applicant's wish to keep JQ at home one day a week.
There is no evidence that Mr Hutton said that things could get ugly for the applicant or JQ.
As to what the words mean, Counsel for the College submitted that it is a reality that if a dispute cannot be resolved, litigation can be unpleasant for all involved, the parties may adopt positions that are antagonistic, and harm may be done to the relationship between the parties. She submitted that the words should not be seen as a threat but as a sad recognition of the inevitable consequences of litigating an emotional and personal issue such as disability discrimination.
Counsel for the College also submitted, correctly, that motive is irrelevant to the prohibition on direct and indirect discrimination (section 10) but there is no such provision in relation to victimisation. Motive may well be relevant.
In my view, the intention of the person speaking the words is important, in the sense that it is important to identify what they were seeking to communicate, in order to assess whether, in fact, it was a threat.
In Tan v McArdle,[17] Deputy President McKenzie noted that the purpose of these provisions is to protect a person from being deterred from asserting their rights under the Act, which would undermine the protections the Act gives.
Deputy President McKenzie set out a number of elements of victimisation, one of which is that the conduct must be directed at and affect the complainant.[18]
I am satisfied that the conversation with Mr Hutton affected the applicant. I am not satisfied that the words were a threat directed at either the applicant or JQ.
On the whole of the evidence, my view is that the words spoken were more likely to be a statement of Mr Hutton's concern - that if the matter could not be resolved things could get 'ugly' for all concerned.
If motive is relevant, I accept Mr Hutton's evidence that his motive was to encourage the applicant to discuss and try to resolve the matter, before it went much further.
I am not satisfied that the College, through the conduct of Mr Hutton, has engaged in victimisation.

[58]

In final submissions, the applicant's representative argued that there were flaws in the way the College approached the education of children, which disadvantaged JQ. She listed and expanded upon four 'major flaws'.
The submissions on that theme were wide-ranging, well-beyond the claims arising out of the Particulars of Complaint, and largely outside of the operation of the 2010 Act. The submissions were also unfair in a number of respects, principally that an applicant should give notice of the case that a respondent is required to meet before the hearing starts and should endeavor to bring a claim within the legal framework relied upon. In any event, those parts of the submissions did not assist the applicant.
As I observed earlier, the claim is a serious one - that the College is in breach of the law. The formulation and proof of a case such as this requires some precision. Assertion of a fact as truth is not enough. Belief in its truth is not sufficient. Logically relevant evidence must be adduced.
There were deficiencies in the evidence relating to autism spectrum disorder and severe pragmatic language disorder, and the applicant did not meet the standard of proof in respect of the essential aspect of this claim relating to behaviours.
I did not draw adverse inferences under Jones v Dunkel from the applicant's unexplained failure to call the diagnosing professionals, but their absence left a significant gap in the evidence supporting the applicant's claim, and reduced the weight to be given to their reports.
I gave weight to the expert opinions of Professor Vicki Anderson called by the College. She considered that the diagnosis of autism spectrum disorder in 2010 was based on inadequate objective information. She considered that the diagnosis was inconsistent with observed behaviour of JQ in 2010 and 2011. She proposed differential hypotheses for his behaviour in 2012, and considered the positive change in his behaviour in 2013 to be significant.
The opinions expressed by the expert witnesses called by the applicant were limited in their value and weight, principally because the instructions they were given were incomplete and in part misleading. Professor Anderson, called by the College, had a much better basis on which to express an opinion on the central question in this case - were JQ's behaviours in the relevant period attributable to disability. I was not satisfied on the evidence that they were so attributable.
The claim was also based on an assertion that certain measures were reasonable adjustments under section 40, namely a Program/Student Support Group, an Individual Education Plan and a Positive Behaviour Plan. The applicant's case was that those measures are standard supports and therefore required adjustments whenever a student has a disability.
That part of the claim did not succeed principally because the claim and the submissions relating to it ignored the balancing factors to be taken into account when deciding whether an adjustment is reasonable.
As the Disability Standards in Education note -
- Adjustments may not be required for a student with a disability in some circumstances;
- For the purposes of the Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all affected; and
- There is no requirement to make unreasonable adjustments.
The applicant claimed that the College had failed to comply with the Standards. That does not appear to be the case but in any event is not a cause of action under the 2010 Act, which is State legislation.
I find that the College did not discriminate against JQ, directly or indirectly, did not fail to make reasonable adjustments, and did not breach the prohibition on victimisation in the Act.
In those circumstances, the claim will be dismissed.
Counsel for the College advised the Tribunal at the close of the hearing that the College did not seek its costs of the proceeding. That being so, there will be no order for costs and each party will bear their own.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

AB v Ballarat Christian College (Human Rights) [2013] VCAT 1790 (21 October 2013)