FSO v Secretary, Department of Education - [2023] NSWCATAD 102 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

FSO v Secretary, Department of Education

[2023] NSWCATAD 102

NCAT Administrative and Equal Opportunity|2022-09-16

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-09-16

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Claims

This is a claim of alleged disability discrimination made by the Applicant against the New South Wales Department of Education ("the Respondent") on behalf of three of her children.
On 6 December 2021, the Applicant lodged complaints with the Anti-Discrimination Board of New South Wales on behalf of the children. (In these reasons, we will refer to the three children in order of their age, oldest to youngest as P, A and O).
The matter could not be resolved between the parties and the President of the Board referred the complaint to the Tribunal pursuant to s 93A of the Anti-Discrimination Act 1997 (NSW) ("the Act").
In summary, the complaint before us alleges that: 1. each of the three children has a disability; 2. the children are students at a Public School in New South Wales and the school employs a Student Learning Support Officer ("SLSO") to provide various direct supports to the children; 3. the SLSO is partly funded from the funds received for the children under a program described as the Integrated Funding Support Program, a program of the Respondent; 4. on 6 August 2021, there was a regional athletics carnival, away from the school, attended by a number of students and teachers, including the SLSO for part of the day; 5. the three children did not attend the carnival but were at school under the supervision of the Principal and other teachers; and 6. the SLSO was employed to provide adjustments to the three children as students at the school so that they can access education on the same basis as their peers and those adjustments were not made available to the students on 6 August 2021.

[2]

Materials Before the Tribunal

The Applicant did not file points of claim but set out the complaint in detail in a range of documents and also filed voluminous supporting material on 8 July 2022 and 26 August 2022 (responding to the points of defence filed by the Respondent) and a further reply document on 8 February 2023.
Not all the materials contained in the background documents filed and relied upon by the Applicant were admitted into evidence. Certain documents were excluded on the grounds of relevance and because of their prejudicial nature, the Respondent not having had adequate opportunity of dealing with any evidentiary issues arising from those documents in these proceedings.
A substantial part of the material relied upon by the Applicant was admitted into evidence over the objection of the Respondent on the basis that the Respondent was entitled to make any submissions as to relevance and as to the weight to be attached to these materials.
We have had regard for the relevant materials tendered by the Applicant including the policies underpinning the programs to assist students with learning abilities put before us.
The Respondent filed and relied upon points of defence together with a witness statement by the Principal of the school, Ms Burley, dated 12 August 2022 with attachments.
In her written submission to the Tribunal dated 8 February 2023, the Applicant stated that due to the impact on her (and to her husband's) health they would not be able to attend the hearing on 13 February 2023 set down for finalising the evidence being tendered and hearing closing submissions.
Prior to hearing the parties on 13 February 2023, the Registrar of the Tribunal contacted the Applicant by phone to clarify the Applicant's position about non-attendance at the hearing. The Applicant informed the Registrar that she was content for the proceedings to proceed in her absence. As a result, we proceeded to hear the Respondent but had regard to the written materials filed by the Applicant and earlier oral submissions made by her during the hearing in September 2022.
The Respondent also relied on detailed written closing submissions filed on 9 December 2022.
As is apparent from the report from the delegate of the President of the Anti-Discrimination Board, the conduct complained of is confined to 6 August 2021. The Applicant stated that the children were affected by the absence of the SLSO on that day as they were not able to receive the agreed adjustments in their "personal learning support plans" ("PLSPs") which are benefits that are necessary for their learning. In the present application reliance is also placed on other policies which we deal with below.

[3]

Relevant Legislative Provisions

The Respondent contended that the complaints referred to the Tribunal should be categorised as follows: 1. that the Respondent indirectly discriminated against each of the students on the grounds of disability contrary to s 49B(1)(b) of the Act by requiring each to comply with a requirement or condition, being the goals in their respective PLSPs; 2. that s 49B(3A) of the Act was contravened on the grounds that the students are taken to have a characteristic that appertain generally to persons who have their identified disability; 3. that the Respondent discriminated against each of the students on the grounds of disability, contrary to s 49L(2)(a) of the Act by denying them access to a benefit, being strategies in their PLSP but also, it appears, claimed benefits from the behavioural management plan and risk assessment for each of the students; and 4. that the Respondent discriminated against each of the students on the grounds of disability, contrary to s 49L(2)(c) of the Act, by subjecting each of them to a detriment.
We accept this categorisation of the Applicant's complaint to be determined by the Tribunal.
The sections referred to above read as follows: Section 49B (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the grounds of disability if the perpetrator. (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. Section 49B(3A) For the purposes of, but without limiting this section, the fact that a person who has a disability - (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretative, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have disability. Section 49L (1) It is unlawful for an educational authority to discriminate against a student on the ground of disability - (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or … (c) by subjecting him or her to any other detriment.
There are thus four elements to s 49B(1)(b). That the Respondent required that the students had to comply with a "requirement or condition". If so, was the requirement or condition one with which a substantial higher proportion of persons without the identified disability complied or were able to comply? Then, was the requirement or condition reasonable. Finally, was the person with the disability able to comply with the requirement or condition.
The Respondent accepts that each of the children has a disability as defined in s 4 of the Act, and also accepts that it is the appropriate educational authority as defined in the section.
For the reasons which follow, we conclude that the application should be dismissed.

[5]

Alleged Discrimination

The Respondent denies that it has in any way breached the Act and, specifically, denies that the three students were denied benefits or suffered any material disadvantage or detriment on 6 August 2021, the day of the athletics carnival.
The alleged discrimination in respect of student P, said to be contrary to s 49B(1)(b) of the Act, is requiring him to comply with a requirement or condition, being specific goals set out in his PLSP, namely; (in summary): 1. that by the end of Term 4, student P would demonstrate planning and editing skills when producing texts by various means; 2. that by the end of Term 4, student P would continue to engage in handwriting lessons in the classroom; 3. that by the end of Term 4, student P will start using an exit card when he feels he needs to regulate his emotions in the classroom; 4. that by the end of Term 4, student P would be able to identify and communicate small, medium and big problems to an adult by the end of the day.
There are two semesters (half-year periods) with two terms each for Public Schools in New South Wales.
In respect to s 49B(3A)(b) of the Act, the alleged discrimination was said to be denying student P the benefit of an assistant/carer, which is said to be a characteristic of his disability.
In respect to s 49L(2)(a), student P is said to have been denied access to 49 benefits provided by the school (and then there are particularised various benefits).
The benefits said to have been denied related to the PLSP goals 1 to 4 referred to above, goals which in each case were to be aimed for by the end of Term 4.
There were also said to be some 17 benefits denied the student under a plan described as the Behaviour Management Plan.
It was then also claimed that the Respondent discriminated against student P on the ground of his disability contrary to s 49L(2)(c) of the Act by subjecting him to a detriment, namely, a negative impact on his learning outcomes.
Included in these particulars of benefits said to have been denied are benefits which were not required under the PLSP to be delivered on a daily basis, for example, benefits for Goal 2, handwriting modifications which were to be provided a minimum of four days per week, and transition goals to be achieved by the end of Term 4 as set out in Goal 3.
In respect of the alleged detriment, it was asserted that in respect of student P, there was a negative impact on his learning outcomes. There was, however, no evidence of actual negative impact identified to us as a result of the arrangements made for teaching and support at the School on 6 August 2021.
In respect of student A, the alleged discrimination under s 49B(1)(b) is again referenced by the student's goals by the end of Term 4 in four respects. Some of the benefits said to be denied were not to be provided on a Friday, such as supervision by the SLSO for a period of 45 minutes with a speech therapist every Tuesday, or one session with the SLSO each week, with the assessment on Friday, but the work to be performed on any day.
Reliance was then placed on s 49B(3A) of the Act in respect of student A in the same way as for student P.
The benefits which were said to have been denied student A, contrary to s 49L(2)(a), were those in goals 1 to 4 of the PLSP, goals which in each case where to be aimed for by the end of Term 4.
Some 14 benefits under a plan prescribed as the Behaviour Management Plan were said to have been denied student A on the day. These benefits are directed at circumstances where behavioural issues arise.
In respect of s 49L(2)(c) of the Act, it was claimed that student A was subjected to a detriment, namely, a negative impact on her learning outcomes.
There was, however, no actual negative impact identified to us as a result of the arrangements made for teaching and support at the School on 6 August 2021.
In respect of student O, the alleged discrimination contrary to s 49B(1)(b) of the Act was said to be by requiring the student to comply with a requirement or condition, namely; (in summary): 1. transferring his plan into his writing books three days a week to the expected criteria; 2. by the end of Term 4, participating in packing away his own materials used in lessons et cetera; 3. during the second semester, participating in five minutes structured play following the explicit rules of the game guided by the SLSO; 4. during Semester 2, he will communicate (verbal or visual) his emotional state to an adult.
In respect of this student, the claim then further in reliance on s 49L(2)(a) sets out the denial of "34 benefits". The benefits related to goals 1 to 4.
In respect of a complaint of a denial of benefits under a plan described as the Behaviour Management Plan for student O, they include benefits such as "SLSO to come over when available", "parent setting a five-minute timer of when to leave" and steps where behavioural issues arise.
It is claimed that student O was subjected to a detriment contrary to s 49L(2)(c) namely, a negative impact on his learning outcomes previously identified.
There was, however, no evidence presented as to any actual negative impact on student O as a result of the arrangements made for teaching and support on 6 August 2021.
It appears that in respect of student O, reliance is also placed on s 49B(3A) in the same way as for student P.
The Applicant produced no evidence as to what occurred in the classrooms for each of the students on the day in contention, Friday, 6 August 2021. Notwithstanding the written complaints, the Applicant did, however, expressly indicate to the Tribunal during the hearing that her complaint was not that there was a detriment to the children on the day.
Although the Applicant pointed out that on the day the unfamiliarity of a teacher on the part of student A, or being in a class with students they were unfamiliar with, students P and A, which were known triggers, the evidence before us does not establish that there was any trigger or that these arrangements caused any difficulty for the students on that day.

[8]

PLSP

Each of the children had a separate PLSP in 2021.
Ms Burley described the process by which such a plan is developed in a multi-step process. First, the class teacher prepares a draft PLSP based on recommendations from the previous semester, previous PLSP goals and newly-formulated goals based on the student's educational progression. This draft PLSP is sent to parents for review. When preparing a PLSP for these students, the School agreed that, once the draft PLSP was sent to parents, the parents can then consult the children's therapy team and the therapy team can provide feedback on the draft PLSP. The PSLP is then returned to the School and any change so discussed and agreed to, if suitable, is recorded. This process was adopted in each of the PLSP's the subject of this matter.
Ms Burley stated that the PLSP is a working document that is targeted to the individual child and contains their directed goals. There is no requirement that the goals set for the students have to be met. Strategies needed to be developed to assist the classroom teacher in supporting the individual student towards the goals, such strategies being the adjustments required and set out in the PLSP.
For the classroom teacher, he or she must work with the PLSP daily. The plan enables the classroom teacher to further identify what extra help a student needs due to his or her disability. The PLSP provides ongoing support and growth for the students.
Ms Burley accepted that the PLSP is a recognition of students having extra needs and how the school can meet those needs.
On implementation of a PLSP, the position is that generally a classroom teacher reviews the plan and the tasks and goals to be achieved, which are then implemented into the planning of classroom tasks and activities. Ms Burley accepted that the PLSP should be tracked and monitored closely and the student's progress under the plan can be reported in various ways including a PLSP summary, end of semester report and other online reporting functions.
The Department of Education requires that it is the classroom teacher who holds the primary responsibility for the learning of every student in the class. As such, the classroom teacher is responsible for the implementation of the PLSP.

[11]

Carnival

A district athletics carnival was held on 6 August 2021 during Term 3. Ms Burley stated that first, an athletics event is held at the school and then those students who qualify for the next level go to the district event. In 2021, the district athletics carnival was held in Lismore. The carnival included students from the School and other students from schools within the region.
Of the 52 senior students enrolled at the School in Grades 3, 4, 5 and 6, there were 28 qualifying senior students going to the carnival. None of the three students subject of this application qualified for the carnival and thus would be remaining at school on the day.
Ms Burley stated that due to the high amount of qualifying senior students attending the carnival, she determined that Ms De Stefani and Mr Johnson and Ms Kavanagh would need to attend the carnival to support and monitor the students going. As the age requirement for the carnival was eight years old, infant students did not attend the carnival, which meant that the highest proportion of students attending the carnival were students in Mr Johnson's class and the class Ms Burley shared with Ms De Stefani.
Ms Burley stated that in her view, it was appropriate that those teachers attended the carnival in those circumstances and given the large number of students attending from the school, she deemed it appropriate that a third teacher should attend. She felt that Ms Kelsall and another teacher, Ms Belle, should remain at the school as their usual classes would have been largely unchanged by the absence due to the carnival.
Ms Burley stated that she felt that she was in a better position to manage the education of the senior students than the SLSO would have been and for those reasons, she determined that Ms Kavanagh should be the third supervisor to attend the carnival.
The students and teachers who attended the carnival returned to school at the end of recess at 2:30 pm and Ms Kavanagh was therefore able to assist the students, including student P in the afternoon on 6 August 2021 for his scheduled SLSO session due to commence some minutes earlier.

[12]

Teaching on 6 August 2021

On the day of the carnival, Ms Burley taught the remaining senior students in Grades 3/4/5 and 6, approximately 24 students including student P and student A.
The 1/2 class was largely unchanged, and the students had their usual class teacher, Ms Kelsall. As a result, student O's stay at school would not have looked much different to a typical day, the only exception was that student O would have had an SLSO session with the SLSO from 9:10 am to 11:10 am and Ms Kavanagh would also have supervised his play from 2:00 pm to 2:15 pm after which he was picked up by the Applicant to attend an occupational therapist appointment for the rest of the afternoon.
Prior to student O leaving school early on that day, Ms Kelsall continued to teach as usual. The Principal, Ms Burley regards her as a highly competent teacher. She was involved in the development of student O's PLSP and is aware of the goals and strategies set out in the plan. The Principal had meetings with Ms Kelsall in which she confirmed that she had been implementing the PLSP.
The carnival also fell within Term 3 of the 2021 school year. Term 3 in the 2021 school year saw continual lockdowns and learning from home arrangements. Due to the constant disruptions from COVID-19, the teachers continued with the learning from home packages in Term 3, which were accessed on "Google classrooms".
On 6 August 2021, the school was still regularly using "Google classroom". As such, the students that day had access to familiar learning programs that were used during normal class times on regular days. Despite the day not being a normal day, Ms Burley said that they used the online learning platforms that all students were familiar with. She stated that in respect of student P, he especially enjoyed the online learning platform and the platforms were tailored to each specific grade.
On 6 August 2021, Ms Burley personally ensured in her capacity as Principal and classroom teacher that students P and A had adequate access to learning in a safe environment. She says that student O also had his regular class teacher available and had access to a normal day of learning.
Ms Burley stated that despite the SLSO not being present, Ms Kelsall and she were around to ensure the implementation of the PLSP for the students, which they did. She said they worked with the three children and gave them all the support they needed during the day.
By reference to the timetable prepared for the assistance to be provided by the SLSO on 6 August 2021, the SLSO was scheduled to supervise student P and student A at lunch from 11:30 am to 12:00 pm and assist student A in class from 12:10 pm until 2:00 pm, and then supervise student O at recess from 2:00 pm until 2:30 pm. She was to assist student P in class from 2:35 pm to 3:10 pm, and finally to assist the students to the bus line or pickup at the end of the day.
The Principal said that on the day she took over the duties of the SLSO that would have been completed that day for student P and student A and Ms Kelsall took over the SLSO's duties with student O. The SLSO was able to resume her duties once she returned from the carnival at 2:30 pm.
As student P's class teacher, Ms Burley was aware of student P's PLSP, and as the school Principal, she was also aware of student A's PLSP. She says that as student O's class teacher, Ms Kelsall was very well aware of student O's PLSP. On the day of the carnival, Ms Kelsall and Ms Burley both implemented the PLSP as appropriate.
Ms Burley stated that it is impractical to implement every single adjustment contained in the PLSP every single day. She said that the PLSP goals are goals for an entire semester that are worked on gradually, and at different times throughout the day, week and semester. The classroom teacher holds the primary responsibility for the learning of each student in class and the SLSO is there to assist the teacher in that process
Ms Burley also stated that as she was student P's classroom teacher for two days a week, she was more qualified than any SLSO to remain behind on the day of the carnival and to teach student A and student P.
Ms Burley said that in addition to classroom learning, she ensured that on the day of the carnival, she supervised all play. She said that in a small school such as the School, there are designated duty rosters for the playground but if there are changes, such as a staff member being sick, she would often go out and fill in for the staff member and complete the playground duties. It was not uncommon, she said, for her to supervise the playground.
Ms Burley then stated that the three students were at no point treated any differently from any other children on the day because of their disability. They were not required to comply with any conditions or requirements.
Ms Kelsall and the Principal ensured that they supported the students at all times on 6 August 2021 and they did everything they could to ensure that the day was as normal for the children as possible and that they had the same access to learning and support as they usually would.

[13]

Denial of Benefit or Subjected to Detriment?

In contrast to the evidence of Ms Burley outlined above, the Applicant stated frankly that she and her husband had no evidence as to what in fact occurred at school on the day "because they were not there".
As we outlined above, the Applicant also frankly conceded that there was no detriment to any of the three students as a result of the arrangements and teaching in place on the day. The Applicant does, however, contend that because the records of the school apparently do not record the specific adjustment provided to each of the students on the day, we should infer that the students were somehow disadvantaged by reason of what occurred.
However, we accept the unchallenged evidence of Ms Burley, which we have set out in detail above. On the evidence before us, we are satisfied that the students were not denied a benefit in any material way on the day.
We accept that the SLSO was not present for part of the day. However, on the evidence, we are satisfied that the teachers on the day were well aware of the needs of each of the students, were aware of their individualised PSLPs and paid particular attention to the needs of the students by reference to their plans and adjustments.
We are also satisfied that there is no evidence of any behavioural difficulties arising on that day requiring the assistance of the SLSO, or which were not attended to by the teachers including the Principal. We have no basis for concluding that Behaviour Management Plans, if they were in fact benefits, were in any way denied on the day.
It is also relevant to recognise that the timetable prepared to allocate the time for assistance from the SLSO to the students is not the PLSP but an assessment by the Principal to divide up the time of the SLSO. The actual roster arrangements for the SLSO are also, by their very nature and the need to change to meet particular circumstances, in our view, of a flexible nature. Adjusting the roster to meet circumstances for part of a day it is in our view not a denial of adjustments provided by the teachers.
To the extent that the assistance of the SLSO is to be regarded as a benefit, we are satisfied that the Principal and teachers extended those benefits to the students on that day.
We are also satisfied, and find, that none of the students were subjected to any form of detriment on the day by the absence of the SLSO for a period of some 5 hours and 20 minutes. This conclusion is to be contrasted, for example, with the situation where it can be established with reasonable certainty and evidence that as a result of the conduct of the School over an identified period, there was in fact a decline in the learning outcomes for a student. That is not this case.
The Applicant also argued that there were certain triggers, which could impact on the children if their normal routine at school was interrupted. On the evidence before us, there is no suggestion that there were triggers which occurred, or that the Principal and teachers did not adequately deal with any trigger, anxiety or particular behaviour on the part of the students, which impacted on their learning.
In addition, we cannot conclude, on the evidence, that if there was any disadvantage to the student, it was a disadvantage of any substance.

[14]

Requirement or Condition

An examination of the PLSPs for the students, the terminology, adjustments and goals lead us to conclude and find that they do not constitute requirements or conditions, importing the notion of compulsion or obligation on the students to meet or, if they failed to meet those goals, there would be any consequences taken against them. For example, a goal of achieving an outcome at the end of a particular term is in our view, something to strive for or reach as a positive outcome, if possible, with the plans identifying the assistance to be provided to the student by, primarily, the class teacher and also with the assistance, where appropriate, of the SLSO.
On the evidence before us, we cannot conclude that the necessary adjustments, which were in the PLSPs in any way denied the students the opportunity of reaching their goals because of the absence of the SLSO for part of the school day on 6 August 2021. This is particularly so when the absence of the SLSO was for only 5 hours and 20 minutes and the goals are to be achieved over a long period of time through activities which might only occur daily or weekly, and some of which are aimed at achievements at the end of Term 4.
The plans clearly envisage participation by the students in the tasks set out with the objective of meeting the specified goal. It appears to us that by their very nature, the plans may require minor adjustment from time to time and some flexibility as testified by Ms Burley.
It would be a strange outcome, for example, if, by reason of a one-day absence because of ill health of the SLSO, the Respondent could be said to have unlawfully discriminated against the three students, or that by reason of their absence for whatever reason (including external medical appointments, illness or therapy, matters over which the School does not have control), there would arise some breach of the Respondent's obligations under the Act. Further, there was no evidence before us that the absence of assistance for part of the day led to a situation which was irrecoverable and could not be made up with more attention given to the students, if needed, in following days.
As we understand the Applicant, she accepted that the absence of the SLSO because of, for example, being ill for a day would not amount to discrimination. She sought to distinguish that situation from the present because there was no consultation with her about the plans put in place prior to 6 August 2021. We do not accept this distinction.
Further, if contrary to our view, there was a requirement or condition the requirement requiring compliance within the meaning of s 49B(1)(b) of the Act, namely, that the students attend school without the presence of the SLSO for part of the day, we are satisfied.
The Applicant has failed to establish that it was a requirement or condition which is not, taking all matters into account, reasonable. In that regard, the evidence of the Principal, as set out above, satisfies us that for a small school with limited resources the arrangements were for the particular occasion, they addressed the needs of all the students and these three students with care and attention to their needs, all reasonable requirements.
In addition, we are not satisfied that with the Principal and teacher implementing the plans the students were required to do anything different from a learning perspective, or that they did not receive the level of support if the SLSO was also present.
In respect of the fourth element of s 49B(1)(b) ("not able to comply") there is no evidence that by reason of the student's disability full participation in learning could not, or was not, achieved on that day. There is no evidence that the students could not, or did not, meaningfully participate in the classroom instruction and playground activity on the day without the presence of the SLSO.
The Applicant has not established that there was imposed on the students a requirement or condition which they were not able to comply with.
In coming to our views, we have had regard to the reply submission by the Applicant of 8 February 2023 concerning the concept of "detriment" where it is asserted that there was an adverse impact on the student's learning outcomes, that there was increased anxiety due to the change in routine and that there was an increased risk to health and well-being due to the agreed adjustments to management behaviour and risk being removed.
In our view, those submissions are contrary to the position as conceded by the Applicant and we find there is no evidence of any of these consequences on the students on the day, or as a result of what occurred on the day.
The Applicant also sought to rely on the decision of the Tribunal in the matter published as [2022] NSWCATAD 36. In our view, the evidence in that case is of a substantially different nature and does not assist the Applicant in the present matter.

FSO v Secretary, Department of Education

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (4)