The Third Allegation: Reasonable Adjustment - Functional Behaviour Assessment and Behaviour Plan
297 The statement of claim alleges that the State failed to provide Beau with a Functional Behaviour Assessment and a Behaviour Plan. This is alleged to result in a failure to comply with s 5(2), resulting in contravention of s 22(a) and (c) of the DDA.
298 The statement of claim alleges that a Functional Behaviour Assessment is an assessment designed, in summary, to:
(a) identify and define target behaviour through data collection and analysis;
(b) identify when challenging behaviours occur, and the associated events or states;
(c) generate and test hypotheses concerning events that preceded and maintained the behaviour and the characteristics and patterns of the behaviour itself (a Functional Analysis); and
(d) inform the development of a Treatment/Behaviour Support Plan which is then monitored, evaluated and altered for its effectiveness.
299 The statement of claim alleges that a Functional Behavioural Assessment must be provided by someone qualified to undertake such an assessment. It alleges that a Functional Behaviour Assessment was required to determine the function of Beau's behaviours of concern and ultimately mitigate and/or extinguish those behaviours in order to ensure the physical health and safety of Beau, staff and students, to avoid suspension, expulsion and violence at the hands of the State, allow Beau to retain his dignity at school and to allow him to reach his academic and social potential.
300 The statement of claim alleges that the respondent failed to provide Beau with a Functional Behaviour Assessment or a Behaviour Plan because it organised behavioural assessments and plans from people who did not have the qualifications to properly undertake them. Further, it is alleged that behaviour plans were developed without an understanding of the function of Beau's behaviours, and they did not have measurable outcomes, were not formally monitored or reviewed, provided Beau with no structured assistance to learn pro-social behaviours, failed but were not altered, and were punitive.
301 The statement of claim alleges that the failure of the State to provide a Functional Behaviour Assessment and Behaviour Plan deprived Beau of the opportunity to have the function of his behaviours assessed and determined, have a Treatment/Behaviour Support Plan informed by such an assessment developed by an appropriately qualified person and implemented, have fewer, or no behaviours of concern, attend school without being suspended and be protected from practices which "subjected him to injury and death".
302 The statement of claim alleges that the provision of a Functional Behaviour Assessment and Behaviour Intervention Plan was a reasonable adjustment and that the failure to provide those adjustments had the effect that Beau was, because of his disabilities, treated less favourably than students without his disabilities would be treated in circumstances not materially different. It alleges that the failure to provide Beau with a Functional Behavioural Assessment and Behaviour Intervention Plan resulted in him being suspended and experiencing physical and psychological harm.
303 The School developed a formal Class Behaviour Management Plan dated 27 February 2013 and formal Individual Behaviour Support Plans dated 6 February 2014, 29 April 2014 and 13 February 2015. Therefore, the allegation pleaded in the statement of claim does not, in reality, seem to be that no Functional Behaviour Assessment was carried out or that no Behaviour Plan was developed, but that those that were carried out or developed were inadequate.
304 Evidence was led from Ms Webb in support of the Third Allegation. Ms Webb's evidence was that she was only provided with the Class Behaviour Management Plan dated 27 February 2013 and the Individual Curriculum Plan for Semester One, 2015. She may in fact have been provided with some other documents, but it is not apparent from her report that she had regard to any other documents. She also had a short interview with Julie Connor.
305 Ms Webb's criticisms of the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan can be summarised as follows:
They failed to show that the School made adjustments to the learning environment to support Beau's sensory processing disorder and his diagnosis of autism.
There is little evidence of curriculum modifications and adaptations to allow full access to learning opportunities.
The School used punitive strategies, such as locking Beau in a room.
Beau's parents did not have significant input into strategies that the School were using and were not consulted on aspects of behavioural management decisions.
No adjustment was made to take into account Beau's interests (eg climbing trees) and adjustments to learning based on his interests.
The focus of intervention was around Beau being compliant with staff whereas it should have been to work collaboratively with his family to develop a plan to meet his individual needs with a strong focus on goals and strategies.
There was no Functional Behaviour Analysis conducted to identify the triggers leading to problematic behaviours.
The School's hypothesis that Beau wanted to avoid work and be sent home suggested that the School did not have an understanding of the purpose or function of his behaviours, and shows that the School placed the problem with the child.
While Beau wanted to be liked by others and have social connectedness, he was placed in a situation where he was seen as devalued and seen as problematic by his peers, which affected the way he formed or maintained relationships with them.
The 2013 Class Behaviour Management Plan showed little or no evidence of preventative, adaptive or reactive strategies that the School could use to support Beau.
The 2013 Class Behaviour Management Plan showcased very little knowledge of certain characteristics and known strategies that would have supported a student with autism or ADHD including sensory learning, positive reinforcements, social stories, peer support, etc.
The use of the Withdrawal Room was itself a trigger for Beau's behaviours.
Beau could have benefited from preventative strategies including visual stimulus, communication aids, sensory fidgets, cushions for sensory stimulation, assisted technology, inclusion of interests in his learning, adaptation and modification of learning tasks and constant positive reinforcement.
306 It does not appear from her report that Ms Webb had regard to the Individual Behaviour Support Plans of 6 February 2014, 29 April 2014 and 13 February 2015. She did not interview Beau in order to conduct any assessment of his abilities and needs. She was not given the OneSchool records concerning Beau's behaviour at the School and the investigations and measures undertaken to help Beau. Ms Webb was unaware of the full range of strategies which the School deployed.
307 Ms Webb seems to regard the strategies to manage Beau's behaviour as being purely punitive, but fails to recognise that managing Beau's behaviour was integral to his ability to engage with the curriculum and learn. It was common for Beau to refuse to comply with directions by teachers to engage in school work, or even to remain at his desk during class. Beau frequently engaged in disruptive behaviour or had "meltdowns" during which he apparently lost control. It is true to say that in the School's strategies, there was an emphasis upon management of Beau's behaviour. Given the frequency, nature and severity of Beau's disturbed behaviours, that is entirely unsurprising. The first step towards allowing Beau to engage with the curriculum was management of his behaviour. Without management of his behaviour, Beau could not possibly focus upon formal learning in areas such as reading, writing and mathematics.
308 One of the difficulties with Ms Webb's report is that she assumes that the only strategies to manage Beau's behaviours over the time he was at the School were those recorded in the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan. She also wrongly assumes that there was little engagement with Julie Connor about these strategies. However, the adequacy of the 2013 and 2015 Plans cannot be assessed in isolation from the whole range of strategies that the School had used, nor from the nature, frequency, severity and consequences of Beau's disturbed behaviours.
309 The staff at the School went to considerable efforts to find, develop and adapt strategies that would both manage Beau's behaviour and engage him in learning. For example, in 2011, Beau's teachers adopted a strategy of persevering through Beau's outbursts in order to set boundaries so that Beau knew he would not always be sent home if he misbehaved, together with positive reinforcement of good behaviour. Ms McNamara would specifically meet with Beau to offer positive reinforcement. Those strategies appeared to be effective for a time.
310 Julie Connor was consulted about plans for the management of Beau's behaviour. This included Ms Schloss and Ms McNamara conducting a Functional Behaviour Assessment interview with her on 7 April 2011, which was then provided to Ms Cooper. Ms Cooper then observed Beau in the classroom on 20 June 2011 and provided strategies to his teacher. Ms Cooper provided continuing support during 2011. Ms Schloss provided information to Beau's paediatrician to assist in his diagnosis and treatment.
311 In 2012, the strategies included Ms Bradford holding Beau in a bear hug, with Julie Connor's approval, to allow her to leave. This was successful, as Beau would settle down after a few minutes, and he would then be able to remain at School for the rest of the day, although Beau's behaviour deteriorated significantly in Term 4. On each occasion when Beau's behaviour was documented in the OneSchool records, the teacher also documented the strategies that had been taken to attempt to manage Beau's behaviour. For example, on 12 October 2012, the strategies were recorded as:
Eye contact ESCM, Verbal cues/instruction ESCM, Redirection to appropriate behaviour, Individual close talk, Give choice/warning ESCM
On many occasions, the strategies employed by the teachers allowed Beau to settle down enough that he could remain in the classroom, rather than his parents being called to pick him up early or being removed from the classroom. However, when Beau's behaviour could not be adequately managed, his parents were called or he was removed.
312 One of the strategies used was that for a period in 2012, Peter Connor would attend the classroom with Beau for a period of time. Julie Connor attended the class with Beau at times in at least 2012 and 2013.
313 In 2013, Ms Cooper and Ms Schloss developed the Class Behaviour Management Plan. The Plan indicated that its goals were for Beau to engage in learning in a compliant manner, interact appropriately and communicate how he was feeling. The Plan included classroom expectations and strategies including praise, positive reinforcement and rewards. It also included strategies for dealing with minor incidents and major incidents. Ms Webb's criticisms tend to focus upon the strategies to deal with Beau's behaviours when they became unsafe or unmanageable. They do not pay appropriate regard to the strategies that were designed to keep him in the classroom and encourage him to engage with the curriculum, and to the fact that withdrawal from the classroom was the last resort.
314 Also in 2013, Ms Brookes, Beau's teacher, had many discussions with Julie Connor about management of Beau's behaviour. It is true that there were few discussions, if any, with Peter Connor, but, as he said in his evidence, he was very busy with his work. It is evident that within the Connor family, Julie Connor undertook the vast bulk of the liaison with the School. Some passages from the evidence of Ms Brookes demonstrate the lengths she went to assist Beau and engage with Julie:
Beau was a very difficult child in the classroom. He was extremely disruptive. I believe that, as an educator and as his classroom teacher - that I met his needs the best way that I knew how. And I also followed the practices that were encouraged by the administration team. Within my classroom environment, Beau was given every opportunity to learn. And I modified his tasks continually. I gave him one-on-one attention constantly. Yet I do firmly believe that all the children in the classroom should be allowed to learn. And unfortunately there were times when Beau was in the classroom and he made it very, very difficult for others to learn.
…
Yes, I spent hours - in the morning before school with his mother, when she would drop him off, and then in the afternoons there would be hours we would stand on the outside stairs of my classroom and I would talk and talk and talk to her while the children would play or they would vie for her attention or my attention. And we would talk about parenting strategies. We would talk about things that were happening in the home. We would talk about the stresses that she had. Not everything was documented in OneSchool. I believe in making a rapport - a rapport with that family so that I can meet the needs of that child. But you know - and I did spend that whole year building that rapport.
But there were times in my classroom where I would have that little boy running around the classroom and, you know, he would go to water taps at the front of the classroom - I had containers filled with water for filling up drink bottles - and he would literally just stand there and turn them on. And he would look at me and wait for me to react. I didn't react. I would end up with a classroom full of water and I would just let it happen. I would sit there and have my cup of tea. And I would say to him, "When you are ready to come and sit down and talk to me about what is wrong with you, then I am ready to have that discussion." I did try very hard. But whatever was going on impacted him significantly within the house - within the classroom.
…
So when Julie would turn up with Beau, if she was there early enough, then I would stop and speak to her, because most days, she would hang around, wanting me to. There was - not uncommon for me to put the class on task in the mornings in order to speak to her privately outside so that I could set Beau up for the day and have an understanding of what - what I needed to do in order to meet his needs. So her coming in in the mornings was not always just before school. It was likely that it would carry over. The bulk of the time was in the afternoons after school, so obviously, all of the children are relieved from the classroom at 3 o'clock and I would then - when she would come to collect him, we would stop and speak. And when I say "hours", it's an accumulation across a week. We would be talking about at least an hour every day. So she would be hanging around until close on 4 o'clock and we would have a chat about what was going on.
315 Later in 2013, Beau entered a flexible arrangement which reduced his hours of attendance at the School. From early 2014, he also attended the Hervey Bay Positive Learning Centre two days a week, while attending the School on the other three days.
316 In 2014, the strategies included Beau spending part of his school days in the Special Education Unit. That followed a meeting between Ms Christie, Ms Jensen and Julie Connor. Beau was referred to the Bay Safety Mates Program, with Julie Connor's consent.
317 The Individual Behaviour Support Plans for Beau dated 6 February and 29 April 2014 were developed by Ms English, the Head of the Special Education Unit, in consultation with Beau's classroom teachers and other staff. The triggers for Beau's behaviour were noted to be hard to define, but included writing, events at home, being touched, authority figures (especially women), lack of food, wanting to be at home and work avoidance. A hypothesis was stated that Beau engages in behaviour aimed at meeting his needs, such as work avoidance or time at home. The Individual Behaviour Support Plans listed proactive strategies and reactive strategies. Proactive strategies included planning for Beau to take part in a gardening program, modification of subjects, Beau's mother attending class for an hour a day, using a timer, relationship building, positive reinforcement and rewards. The reactive strategies included plans to deal with minor or moderate behaviours, as well as an Escalated Behaviour Plan, which included Beau being removed from the class and being placed in the Withdrawal Room until he was calm enough to return to class, or if he did not settle down, to be taken home by his mother. I accept that Julie Connor agreed to the Plan dated 6 February 2014, although a signed copy is not available. She indicated her agreement to the 29 April 2014 Plan by signing it. I reject her assertion that she was unaware of the use of the Withdrawal Room.
318 Again, Ms Webb focusses upon the Escalated Behaviour part of the Plans, without paying appropriate regard to the strategies designed to keep Beau in the classroom and to allow him to engage with the curriculum.
319 In 2015, Beau's time was divided between the Special Education Program and his mainstream class. The curriculum was modified for Beau so that he worked to a Grade 1/2 level. Beau was able to be provided with more individualised support in the Special Education Program, through one-on-one teaching and teaching in small groups.
320 The Individual Behaviour Support Plan dated 13 February 2015 made changes to the proactive/reactive strategies. Beau was offered work in the garden. He was offered social skills lessons in the SEP and was seated with students he liked. There were strategies engaged including positive input from staff, rewards and time on the computer. The Escalated Behaviour Plan included, but did not necessarily require, Beau to be removed from the classroom and placed in the Withdrawal Room when aggressive. He was to be permitted to return to the classroom if he calmed down within 40 minutes. There was a meeting between Ms English, Ms Clarry, Ms Green and Julie Connor to discuss the Individual Behaviour Support Plan. Julie Connor agreed to the Plan, as is indicated by her signature on the document.
321 I find that Beau's parents, particularly Julie Connor, were engaged in the development of strategies to both manage Beau's behaviour and engage him in learning. This both occurred through formal and informal meetings.
322 Beau's teachers had their own documented and undocumented plans for Beau and other students. For example, in 2012, Ms Jensen developed written strategies for Beau which included: ensuring she had Beau's attention before speaking; asking simple questions; providing cues and prompts; providing feedback during independent work; breaking up work into small step-by-step tasks; negotiating how much work was to be completed; and reducing the amount of spelling or giving alternative spelling words. In 2014, Ms Brookes wrote a detailed note for support staff which, inter alia, outlined Beau's strengths and weaknesses, interests, triggers, interventions, rewards and requirements. In 2015, Ms Green prepared a detailed list of Beau's likes and dislikes and teaching and behavioural strategies to apply, but she gave evidence that she also adopted undocumented strategies such as non-verbal cues, one-on-one time and tactical ignoring.
323 I reject Ms Webb's opinion that there was no Functional Behaviour Analysis conducted to identify the triggers leading to problematic behaviours. She was unaware that a Functional Behaviour Assessment was carried out in 2011. Further, Beau's teachers and other staff were acutely interested in identifying the triggers for Beau's behaviours, as is indicated by, inter alia, the 2013 Class Behaviour Management Plan and the 2014 and 2015 Individual Behaviour Support Plans. They engaged formally and informally with Julie Connor in trying to identify triggers for, and strategies to deal with, Beau's behaviours.
324 Ms Webb criticises the hypothesis found in the Individual Behaviour Support Plans that Beau wanted to avoid work and be sent home on the basis that it suggested that the School did not have an understanding of the purpose or function of his behaviours, and shows that the School placed the problem with the child. However, the hypothesis was a reasonable one, based, as it was, on Julie Connor's views and the observations of his teachers. At times, Beau seemed to be able to control his behaviour to the extent that he would calm down when his parents came to pick him up from the School.
325 Ms Webb offers the criticism that, while Beau wanted to be liked by others and have social connectedness, he was placed in a situation where he was seen as devalued and problematic by his peers. However, that view fails to recognise that Beau was only physically restrained or secluded when his behaviours, which included punching and kicking his peers at times, had escalated to a point where they had overtaken any desire he had to be liked or for social connectedness.
326 The evidence demonstrates that the School was aware of and developed strategies to deal with Beau's sensory processing difficulties. For example, fidget toys were available to him and teachers would look him in the eye and use non-verbal cues. The strategies included attempting to engage Beau's interests, such as gardening, timber model constructions and time on the computer. While Ms Webb suggests that Beau should have been allowed to climb trees, that was plainly not feasible because of the physical dangers involved.
327 I reject Ms Webb's opinion that there is little evidence of curriculum modifications and adaptations to allow Beau full access to learning opportunities. The Individual Behaviour Support Plans and other strategies, including time at the Special Education Unit and the provision of teacher-aides for Beau indicate the contrary. The curriculum was modified for Beau in the Special Education Unit.
328 I reject Ms Webb's opinion that the School used punitive strategies against Beau by locking him in a room. The Withdrawal Room was used as a last resort. It was used when no other methods had worked for Beau to calm down and only when he posed a risk of injury to himself or others. It was used to give Beau an opportunity to calm down to the stage where he could return to the class, rather than facing his parents being called to take him home and the risk of suspension. On a number of occasions, the strategy worked and Beau was able to return to the class. On other occasions it failed. The fact that it failed on occasions does not mean that it was an unreasonable or unwise strategy, given that the alternative was to physically restrain Beau until his parents could come in to collect him. He could not simply be left unrestrained or unconfined when he lost control because of the danger involved in Beau running away or engaging in other dangerous acts.
329 It was suggested that locking the door of the Withdrawal Room indicated that the room was used as a form of punishment, but I do not accept that. It was a safety measure to avoid the risk involved with Beau repeatedly opening and slamming the door shut. Whenever Beau was in the Withdrawal Room, he was observed by staff through the glass pane in the door. Staff could intervene when he failed to calm down or engaged in dangerous behaviour in the room. The use of the Withdrawal Room was protective of Beau rather than punitive.
330 I reject the suggestion that the Withdrawal Room was kept in darkness as a form of punishment. I accept that the light was kept somewhat dim as a calming measure, but it was not dark.
331 Ms Webb suggests that the use of the Withdrawal Room was itself a trigger for Beau's behaviours. On each occasion when Beau was taken to the Withdrawal Room he was already displaying significantly disturbed behaviours. On some occasions, he calmed down when he was in the room. The evidence does not support Ms Webb's suggestion.
332 Importantly, Ms Webb was unaware of the nature, frequency and severity of the behaviours engaged in by Beau. Without being aware of these matters, she was not in any adequate position to judge the appropriateness of the behaviour management plans developed by the School. Nor was she in any position to suggest what alternative strategies, if any, might have been effective given the actual circumstances facing the staff. Ms Webb's evidence smacks of a theoretical, academic analysis without adequate regard to the particular circumstances facing the School and its staff.
333 Ms Webb states that the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan showed little or no evidence of preventative, adaptive or reactive strategies that the School could use to support Beau. That is plainly wrong, as may be seen by simply reading those plans and the Individual Behaviour Support Plans implemented by the School.
334 In my opinion, the various criticisms made by Ms Webb of the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan are unfounded. The statement of claim defines a Functional Behaviour Assessment in the way summarised at [298]. I am satisfied that the 2013 Class Behaviour Management Plan and the 2014 and 2015 Individual Behaviour Support Plans, informed by and taken in conjunction with all the other strategies and investigations undertaken, met that description. The statement of claim alleges that a Functional Behavioural Assessment is required to be provided by someone qualified to undertake such an assessment. I am satisfied that the staff at the School, together with Ms Cooper, as educators with practical experience (particularly given their knowledge and observations of Beau), were appropriately qualified.
335 The statement of claim alleges that the School failed to provide Beau with the reasonable adjustment of a Functional Behaviour Assessment and Behaviour Plan. I am not satisfied that they were not provided. Further, to the extent that the statement of claim alleges that the State failed to provide Beau with an adequate or suitable Functional Behaviour Assessment and Behaviour Plan, I am not satisfied of that matter.
336 Further, for the purpose of s 5(2) of the DDA, it is necessary for the applicant to show that the failure to provide reasonable adjustments had the effect that the applicant was, because of his or her disabilities, treated less favourably than persons without those disabilities would be treated in circumstances that are not materially different. It may be noted that in Kiefel v State of Victoria [2013] FCA 1398, Tracey J dealt with similar factual circumstances and said at [91]-[92]:
91 There can be no doubt that behaviour management plans of varying forms were prepared by and implemented in the three schools which James attended prior to August 2009. What was put in issue by James was the effectiveness of the various plans. Even if it be assumed in his favour that offending conduct can be identified in this way (a matter to which I will return in the context of his indirect discrimination claims), direct discrimination can only be found if James established that the shortcomings of the plans which were adopted can be attributed to his disabilities.
92 The plans, such as they were, were adopted in order to deal with James' disabilities. Any deficiencies in those plans (if there be any) were caused by errors of judgment or inadequacy of resources or other causes unrelated to his disability. James failed to establish that the deficiencies about which he complained occurred because of his disabilities.
337 I respectfully adopt and apply Tracey J's reasoning. Any deficiencies in the Functional Behaviour Assessments and Behaviour Plans were caused by errors of judgment, or inadequacy of resources, or other causes unrelated to Beau's disability. Accordingly, the Third Allegation cannot succeed.